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Foreseeability and Anticipation as Constraints on Member State Action under Mixed Agreements

Öberg, Marja-Liisa LU orcid and Klamert, Marcus (2022) In Modern Studies in European Law p.59-76
Abstract
The Member States’ external action, including the conclusion of mixed agreements, is constrained not only by an obligation to conform to EU law as it is but also by an obligation to foresee or anticipate its future developments. The latter may concern either changes in legislation or policy, or the case law of the Court of Justice. Foreseeability demands anticipation or awareness of a future event or circumstance. Anticipation, on the other hand, suggests a prior action which takes into consideration a later action.

This chapter discusses the relevance of both foreseeability and anticipation as concepts in EU law, generally, and EU external relations law, particularly, with special regard to the conclusion of mixed agreements. It... (More)
The Member States’ external action, including the conclusion of mixed agreements, is constrained not only by an obligation to conform to EU law as it is but also by an obligation to foresee or anticipate its future developments. The latter may concern either changes in legislation or policy, or the case law of the Court of Justice. Foreseeability demands anticipation or awareness of a future event or circumstance. Anticipation, on the other hand, suggests a prior action which takes into consideration a later action.

This chapter discusses the relevance of both foreseeability and anticipation as concepts in EU law, generally, and EU external relations law, particularly, with special regard to the conclusion of mixed agreements. It shows that Union institutions must foresee certain future developments and events when taking action both internally and externally, while elements of anticipation constrain Member States based on the duty of loyal cooperation. It establishes both the substantive and temporal scope of these duties imposed on the Member States and discusses their relevance with regard to the case law of the Court of Justice in the context of mixed agreements. Overall, the chapter intends to contribute to understanding the temporal, ‘prospective’ side of restrictions incumbent on the Member States’ external action, especially in the context of mixed agreements. (Less)
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author
and
organization
publishing date
type
Chapter in Book/Report/Conference proceeding
publication status
published
subject
keywords
EU law, Public international law, EU-rätt, Folkrätt
host publication
The EU and its Member States’ Joint Participation in International Agreements
series title
Modern Studies in European Law
editor
Levrat, Nicolas ; Kaspiarovich, Yuliya ; Kaddous, Christine and Wessel, Ramses A
pages
59 - 76
publisher
Hart Publishing Ltd
ISBN
978-1-50994-590-0
978-1-50994-587-0
DOI
10.5040/9781509945900.ch-003
language
English
LU publication?
yes
id
f50bd429-a2f5-47d8-9a51-147c2bf5f32f
date added to LUP
2022-03-01 09:45:03
date last changed
2023-02-12 02:45:21
@inbook{f50bd429-a2f5-47d8-9a51-147c2bf5f32f,
  abstract     = {{The Member States’ external action, including the conclusion of mixed agreements, is constrained not only by an obligation to conform to EU law as it is but also by an obligation to foresee or anticipate its future developments. The latter may concern either changes in legislation or policy, or the case law of the Court of Justice. Foreseeability demands anticipation or awareness of a future event or circumstance. Anticipation, on the other hand, suggests a prior action which takes into consideration a later action. <br/><br/>This chapter discusses the relevance of both foreseeability and anticipation as concepts in EU law, generally, and EU external relations law, particularly, with special regard to the conclusion of mixed agreements. It shows that Union institutions must foresee certain future developments and events when taking action both internally and externally, while elements of anticipation constrain Member States based on the duty of loyal cooperation. It establishes both the substantive and temporal scope of these duties imposed on the Member States and discusses their relevance with regard to the case law of the Court of Justice in the context of mixed agreements. Overall, the chapter intends to contribute to understanding the temporal, ‘prospective’ side of restrictions incumbent on the Member States’ external action, especially in the context of mixed agreements.}},
  author       = {{Öberg, Marja-Liisa and Klamert, Marcus}},
  booktitle    = {{The EU and its Member States’ Joint Participation in International Agreements}},
  editor       = {{Levrat, Nicolas and Kaspiarovich, Yuliya and Kaddous, Christine and Wessel, Ramses A}},
  isbn         = {{978-1-50994-590-0}},
  keywords     = {{EU law; Public international law; EU-rätt; Folkrätt}},
  language     = {{eng}},
  pages        = {{59--76}},
  publisher    = {{Hart Publishing Ltd}},
  series       = {{Modern Studies in European Law}},
  title        = {{Foreseeability and Anticipation as Constraints on Member State Action under Mixed Agreements}},
  url          = {{http://dx.doi.org/10.5040/9781509945900.ch-003}},
  doi          = {{10.5040/9781509945900.ch-003}},
  year         = {{2022}},
}