The phenomenon of mixity can perhaps be described as a sui generis response to the exponential expansion of the sui generis supranational entity – a federal order of sovereign states – that has to grapple with legal, political and economic relations in the wider world beyond it. Mixity is at the heart of the European Union's concurrent attempt to be a key player on the international stage whilst attempting both to preserve the integrity of the Union's internal legal order and to respect the sovereignty of the Union's now 27 Member States.
Pursuing these often conflicting aims has proven to be far from straightforward both conceptually and practically. This book is based on papers given at the Leiden-Bristol Conference held in May 2008, celebrating the 25th anniversary of the original Leiden conference on mixed agreements. Fittingly, its opening remarks are given by one of the few attendees at both conferences, Christian Timmermans who comments on the evolution of mixity over 25 years to the point where it is now a “fact of life” in EU external relations. The book is then divided into four parts.
In Part I (on typology) Marc Maresceau, after a careful analysis of the typology of mixity, asserts that it operates within a “complex grey zone where law and politics meet” in which there is both a legal issue of competence and a political issue of the retention of Member State sovereignty. Ramses Wessel then assesses the potentially “extensive” combinations of pre-Lisbon Treaty cross-pillar agreements that could have been used to circumvent many of the issues arising out of classic mixity and reflects on why their use has been rare.
In Part II (on mixity's constitutional framework), Robert Schütze conceptualises an autonomous compound polity within which sovereign states operate and ultimately suggests that, to a certain extent, mixed agreements create a “plenipotentiary whole” reducing issues of competence to a purely “domestic European affair”. Christophe Hillion examines the constitutional roots and legal scope of the duty of cooperation and Panos Koutrakos analyses key cases on the interpretation of mixed agreements, in which the quest for uniform interpretation has been pursued at the expense of legal clarity. Joni Heliskoski then focuses on the lack of primary law governing the adoption of positions in favour of secondary law or informal codes and Marise Cremona offers a nuanced assessment of disconnection clauses; concluding broadly in favour of them whilst at the same time cautioning against the risk of their engendering a perception by third countries of a reluctance of the Union and its Member States to commit fully to a particular agreement (a recurrent issue in this book). Inge Govaere focuses on the Trojan horse effect whereby an external dispute settlement mechanism within an agreement could have the effect of potentially undermining the Union's internal legal order. Pieter Jan Kuijper then assesses the international responsibility for mixed agreements; suggesting that whilst in practice no serious claim for breach of an agreement reaches the wrong “responsibility window”, more should be done within the Union to make such responsibility more transparent.
Part III critically reviews mixed agreements from the perspectives of those actors directly involved in the process of mixity. Jenő Czuczai, from the Council, reflects on issues that arise in the drafting of negotiation directives; choosing a negotiator, concluding an agreement and the deposition of ratification instruments. Frank Hoffmeister, from the Commission, questions whether mixed agreements are a blessing in that they clearly addto the EU's weight internationally or a curse in that they create tension with non-EU parties in relation to the demarcation of competence and a cumbersome set of 27 internal ratification processes. Ricardo Passos, from the Parliament, reflects on an incremental expansion of its role to the point now where it now adopts resolutions prior to the negotiation phase of a particular agreement as a crucial informal precondition of its later assent. Ivo van der Steen, from the Dutch Ministry of Foreign Affairs, then gives a fascinating insight into his attempt better to equip Dutch departments with an awareness of the demands of EU law. Ivan Smyth from the (UK) Foreign and Commonwealth Office gives a highly practical summary of what it is like to negotiate, sign and conclude mixed agreements, focusing on the necessity (or not) for the provisional application of certain agreements and the need to balance Member States' sensitivities with the Union's expanding role in external relations. Henrik Bull, from the EFTA court, gives the perspective of a “small European state” within the internal market but outside the EU in which perhaps not enough attention is given to the needs of the EEA states. Peter Olson, from the United States Department of State, then describes mixity as “a seemingly endless series of practical problems” in which the EU's treaty partners are forced to jettison conventional treaty norms in order to accommodate the internal dynamics of a European polity seemingly more concerned with a respect for competences than with the need to be a reliable treaty partner subject to clearly defined provisions as to responsibility for breach of an agreement.
In Part IV (looking to the future), Alan Dashwood's highly informative penultimate chapter projects into a post-Lisbon Treaty landscape in which CFSP/TFEU (previously cross-pillar) mixity may be deployed more frequently at the expense of classic mixity. Finally, the book concludes with Allan Rosas making it clear that since ”mixity is here to stay”, there is a necessity to work out a modus vivendi in order to provide greater legal certainty to non-EU parties.
This book contains a distinct blend of sound academic analyses and, crucially, practitioners' perspectives. In particular, the perspectives of external actors – ultimately the key other party or parties to mixed agreements – serves as a fundamental reminder of the importance of getting Europe's house in order, especially in relation to the division of competences. The book stands out as a unique contribution to the law on mixed agreements and is therefore highly recommended to anyone wanting to understand mixity in depth, as well as external relations law more generally.
