2. Scrutinising of Article 351 TFEUArticle 351 TFEU : The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treaties. To the extent that such agreements are not compatible with the Treaties, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established. Member States shall, where necessary, assist each other to this end and shall, where appropriate, adopt a common attitude. In applying the agreements referred to in the first paragraph, Member States shall take into account the fact that the advantages accorded under the Treaties by each Member State form an integral part of the establishment of the Union and are thereby inseparably linked with the creation of common institutions, the conferring of powers upon them and the granting of the same advantages by all the other Member States. The first part of the article allow Member States to respect their commitments under international agreements towards non-EU states, even if the later conflicts totally with EU principles. The second part enforce a duty on the acceding state, to deal with the dichotomies, and also actively impose on other Member State to support where necessary achieving the intended aim, that is the consistency in the EU. The last part prevents limits the possible benefits through bilateral treaties to EU non-member state. On a general basis, the criteria for an international agreement to fall within the concept of Article 351 TFEU seems clear. The treaty, implicating international rights and obligations, must have been concluded between a Member State and a third countries, before the Member State accession to the EU. In Kadi v Council and Commission, the Court has opted to narrow the interpretation, adding a forth criterion, prevailing the fundamental principle of EU Law. Under paragraph one of Article 351 TFEU, to simplify the ideology behind the mention date, that is 1 January 1958, is not as easy as it seems. The main ambiguous points is about the wording surrounding the date itself. We are here to deal with either we should take it literally or the intended principle behind. There is this approach that will consider concluding an agreement as the date of signature, while others will consider the act of ratification as the influencing point. Nonetheless, the Court has neither in Commission v Italy nor in Commission v Belgium, when they had the opportunity to clarify, took the opportunity to do it. In Commission v Italy, the court dealt with Italy signing the GATT agreement in 1956 and ratified it in 1958 and in Commission v Belgium, a treaty between Zaire and Belgium, applied de facto from its signature. Thus the question of ratification as a condition remains unanswered. Nonetheless, on a logical side, ratification of an international agreement is the clear break that demonstrate the participative factor of a state rather than just an intention by signing. Article 351 TFEU is to enable state to assent to the EU without to breach transnational duties. Thus it is rational that mutual revision to international agreements will enable to discontinue application of article 351 TFEU, so that the EU can enforce its total supreme right over Member State. According to the Court in Commission v Belgium, â€œâ€¦Upon amendments made later, the Member states are prevented not only from contracting new international commitments but also from maintaining such commitments in force if they infringe community law.â€™ The CJEU also confirmed that it might be possible for agreement with subsequent amendments due to collapsing state like the Federal Republic of Yugoslavia, Czech Republic and others, to fall under the protection of Article 35 TFEU should the Court establish that the parties intended to follow the principle of the continuity of treaties. After accession to the EU, according to the CJEU, Article 351 TFEU is not applicable to international agreement ratified, concluded by Member state even where EU had no competence in the field at the time, when the Member state ratified it. In clear, the agreement should be rendered compatible toward EU law or eliminated. Every Member state has a general duty of active loyalty towards the EU, to refrain from any activity that might endangered the uniformity goal of the EU, under Article 4 of the Treaty of European Union (Hereinafter, â€˜TEUâ€™). There might be some opportunities whereby the EU has no actual competences in a required field, but can be such in future, so, in case a Member state ratified such agreement base on the absence of competence of EU at that particular moment, cannot in the future when the EU assent to such competence to try to be under the protection of Article 351 TFEU. Therefore the court can rightfully conclude that such agreement is in breach of the EU law, and enforce the Member state to take appropriate measures to eliminate incompatibilities, and on failing such, take appropriate EU law breach measures against the Member State. Article 351 TFEU, according to case law, though not very descriptive in the provision, is applicable to only between Member state and a third countries and not intra-EU countries. More often, some treaties contain such provisions that impose such measure to extend privileges offered to intra-EU relationship to third parties of a treaties. These are known as â€˜most favoured nation clausesâ€™. Thus cause problems by extending EU privileges to Non-EU states. Thus the third paragraph of Article 351 TFEU is aimed at limiting the possibility of extending benefits of the EU to non-EU states through bilateral treaties of Member states.
The Courtsâ€™ Competence in dealing with Article 351 TFEU.Under Article 19 TEU, the CJEU do not have the specific competence to interpret national law or international law, however, he court has on several occasion try to interpret both, based on the duty arise under Article 4 TEU, that is the loyalty to the EU. Following the Von Colson principle, it is an obligation of the national court to interpret their national law â€˜in the light of the wording and purpose of the EU law.â€™ Thus this require the Member state to take all appropriate and reasonable measure to fulfil all obligations and rights arising from the EU treaties. However, such differs from international agreements, the court in BudÃ„â€¢jovickÃ½ v Budvar â€˜It follows that the national court must ascertain whether a possible incompatibility between the Treaty and the bilateral convention can be avoided by interpreting that convention, to the extent possible and in compliance with international law, in such a way that it is consistent with Community law.â€™ Concluding on the competence of the national court, the later has a duty to seek out the direction of the EU law in its pronouncement on the significance and result of an international treaty is apparent. Interpretation of International treaties are codified in Article 31 of the Vienna Convention on the Law of Treaties, according to which â€˜[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purposeâ€™. During interpretation, Courts have a duty to interpret the agreements in reliance to fundamental rights being observed and respected. Measures that are incompatible with the convention of human fundamental rights are unacceptable to the community.
INCOMPATIBILITIES.In case of incompatibilities between international agreements and EU law, Member state are obliged to take all reasonable steps to eliminate incompatibilities under Article 351 (2) TFEU, or the most extreme position to terminate an international agreement, in accordance to the Vienna Convention. Member States are under a legal duty to be at mutual assistance and common attitude towards each other to deal with such incompatibilities. The CJEU has indicated two clear structure to follow, as describe below.
- The first step is that the Member State can use the diplomatic scenario to renegotiate new agreements terms rendering the agreement compatible with EU law. Nonetheless, even if the parties has done reasonably enough in term of negotiation but due to other political scenario, has not been able to achieve the aim to erase incompatibilities, the CJEU has well been clear enough to accentuate that political situation of a Member State â€˜cannot justify a continuing failure on the part of a Member State to fulfil its obligations under the Treatyâ€™
- The second scenario is that is although following several negotiation, no agreement had been reach, the whole agreement should be rejected. The purpose of such, is to avoid future breach of international law, and protecting both EU and third countries.
 Case T-315/01 Kadi v Council and Commission  ECR II-3649  Article 351 TFEU (ex Article 307 EC)  Case T-315/01 Kadi v Council and Commission  ECR II-3649  Case 10/61 Commission v Italy  ECR  Case 471/98 Commission v Belgium  ECR I-9681  Case C-216/01 BudÃ„â€¢jovickÃ½ Budvar  ECR 2787.  Case C-216/01, BudÃ„â€¢jovickÃ½ v Budvar  para. 169.  Case C-170/98, Commission v. Belgium  paras 37, 42