Re ILO Convention 170 on Chemicals at Work (Opinion 2/91)

• Jurisdiction: European Union
• Date: 19 March 1993
• Court: European Court of Justice

Court of Justice of the European Communities.

(Due, President; Kakouris, Rodríguez Iglesias, Zuleeg and Murray, Presidents of Chamber; Mancini, Joliet, Schockweiler, Moitinho de Almeida, Grévisse, Díez de Velasco, Kapteyn and Edward, Judges; Lenz, Darmon, Van Gerven, Jacobs and Tesauro, Advocates-General1)

Re ILO Convention 170 on Chemicals at Work

Treaties — Power to conclude — European Economic Community — Treaty-making powers of the Community and its Member States — Community possessing power to adopt internal legislation on subject — Parallel power to conclude international agreements — Whether exclusive of powers of Member States — International Labour Organization agreements — Right of Community to participate in these agreements — Health and safety at work — Whether a matter of exclusive Community competence — Express and implied powers to conclude agreements — Mixed agreements

International organizations — International Labour Organization — Participation of European Economic Community in work of the Organization — Community an observer at ILO — Whether Community entitled to become party to ILO conventions — Community decision on procedure to be followed by Member States of Community in the negotiation of ILO conventions

Relationship of international law and municipal law — Treaties — Relationship of European Community law and international law — Capacity of Community to conclude international agreement — Assessment by Court of Justice of the European Communities — Capacity as a matter of Community law distinct from capacity under international law or under constitution of international organization — The law of the European Economic Community

Summary: The facts:—By virtue of decisions that were taken in 1981 and 1989, the International Labour Organization (‘the ILO’) allowed the Community, which had observer status at the ILO, to act on behalf of States who were Members of both the Community and the ILO, in negotiations leading to the conclusion of ILO conventions. In 1986, the Council of the European Communities decided upon the procedure to be followed by the Community in cases where the subject matter of an ILO draft convention fell within the exclusive competence of the Community.

In 1988, the ILO commenced work on Draft Convention 170 (‘the Convention’) which was concerned with safety in the use of chemicals at work. The Commission of the European Communities, acting pursuant to the Council's decision of 1986, considered that as the subject matter of the Convention fell within the field of Community activity, the Community had exclusive competence to conclude the Convention on behalf of its Member States. Certain Member States, however, contested the exclusive competence of the Community and refused to comply with the procedures provided for under the 1986 decision. As a result, the Commission, acting pursuant to Article 228(1) of the EEC Treaty2 asked the Court of Justice of the European Communities to give its opinion as to the compatibility of the Convention with the EEC Treaty, whether the Community was competent to conclude the Convention, and, if the Community was so competent, what consequences this would have for Member States.

In proceedings before the Court, the German and Dutch Governments contended, inter alia, that the Commission's request for an opinion was inadmissible as Article 228(1) only applied to agreements which the Community was capable of concluding and that the Community, as a non-Member of the ILO, was precluded by Article 90(5) of the ILO's constitution from ratifying the Convention. The Commission and Greece contended that as the Court had decided in the ERTAINTL case3 that Member States were precluded from entering into obligations with non-member States in areas where the Community had promulgated common rules pursuant to one of the objectives of the EEC Treaty, Member States were therefore precluded from participating in the negotiations leading to the conclusion of the Convention. They relied on the fact that the Council had, acting pursuant to the objectives of the Community's social policy as laid down in Articles 100 and 118 of the EEC Treaty, issued a number of directives concerning the same subject matter as that contained within the Convention. Various other Member States contended, inter alia, that the competence to conclude the Convention belonged jointly to the Community and the Member States, as the principle laid down in the ERTA case only applied where the Community had adopted rules within the framework of a common policy, while the directives adopted under Article 118 did not satisfy this requirement, because matters relating to social policy continued to fall primarily within the domain of Member States. The Council contended, inter alia, that the Community could not have exclusive competence to conclude the Convention, as Article 5 of the Convention required the competent national authorities of

States parties to exercise certain supervisory functions. As the Community lacked the ability to exercise those functions, it was not a competent authority within the meaning of Article 5 of the Convention.

Held:—The conclusion of the Convention fell within the joint competence of Member States and the Community.

(1) When giving an opinion pursuant to Article 228 of the EEC Treaty, the Court was entitled to consider all questions concerning the compatibility of an international agreement with the EEC Treaty including the question whether the Community had the power to enter into the international agreement in question (pp. 387–8).

(2) The question whether a particular international agreement was compatible with the EEC Treaty was to be judged solely by reference to Community law. Therefore the question whether the Community had the capacity under international law to enter into a particular international agreement or the fact that the constitutional rules of an international organization impaired the Community's ability to participate in a particular convention fell outside the scope of an opinion given pursuant to Article 228 (pp. 388–9).

(3) The authority for the Community to enter into international agreements arose not only when expressly provided for by the EEC Treaty itself but could also flow implicitly from the Treaty's provisions or from measures taken within the framework of those provisions by the Community institutions. Therefore whenever Community law created for the Community institutions powers within the internal Community system for the purposes of attaining a specific objective, the Community had authority to enter into any international agreement necessary for the attainment of that objective even though such authority had not been expressly conferred on it by the EEC Treaty (pp. 388–9).

(4) Where the treaty-making power of the Community was derived from the provisions of the EEC Treaty, that power was exclusive and precluded Member States from exercising any concurrent powers in that sphere (pp. 388–9).

(5) The principle laid down in the ERTA case was not restricted to situations where the subject matter of the international obligation in question overlapped with a common policy of the Community but also extended to any measure of the Community which had been taken pursuant to one of the Community objectives provided for under the EEC Treaty (pp. 389ndash;90).

(6) Where the Community and its Member States had joint internal competence over a particular area, the external treaty-making power relating to that area of competence was to be shared between them. In such a case, the Community and Member States were required to take joint action with regard to both the negotiation and implementation of the agreement in question (pp. 389–90).

(7) It was clear from the provisions of Article 118(a) of the EEC Treaty that the Community enjoyed legislative competence in the area of social policy. Accordingly, as the subject matter of the Convention overlapped with several directives that had been adopted pursuant to Article 118(a), the Community could participate in the negotiation and conclusion of the Convention (pp. 390–1).

(8) The provisions of the Convention did not affect any of the Community directives that had been issued pursuant to Article 118(a). If the Community decided to adopt rules which were less stringent than those provided for under the Convention, Member States could, in accordance with Article 118(a) of the EEC Treaty, adopt more stringent measures in order to comply with the Convention. If, however, the Community decided to adopt more stringent measures than those provided for under the Convention, Article 19(8) of the ILO's constitution allowed ILO Member States to adopt more stringent measures than those provided for under its conventions. Accordingly, the Community's treaty-making power was to be exercised jointly with Member States with regard to those parts of the Convention which overlapped with directives that had been issued pursuant to Article 118(a) (pp. 390–2).

(9) A number of directives which had been issued pursuant to Articles 100 and 100(a) of the EEC Treaty overlapped with the provisions of Part III of the Convention. Although there was no conflict between the provisions of those directives and Part III of the Convention, the directives constituted rules that had been progressively adopted over an extended period of time with a view to achieving an ever greater degree of harmonization and had been designed both to remove barriers to trade resulting from divergent national laws and to promote protection of human health and the environment. Accordingly, as the subject matter contained in Part III of the Convention had already been covered in a comprehensive fashion by the directives in question, the Community was deemed to have exclusive competence in that area and Member States could not, as a result, enter into any commitment arising out of Part III of the Convention (pp. 390–1).

(10) Even if the...