1. The agreements with Spain and Portugal are immaterial to this article in view of their different nature. No comparable contractual relations before the Treaty of Accession were concluded with Spain, because of political factors such as the dictatorial nature of the state.

2. Article 206 Euratom contains the same wording. In the ECSC Treaty no corresponding article is embodied.

3. Cf. Art. 237 EEC. According to this article only European countries may join the Community.

4. See, e.g., Kapteyn, P. and VerLoren van Themaat, P., Inleiding tot het Recht der Europese Gemeenschappen 555 (1987)Google Scholar; Colombo, E.M.in L’Association À la Communauté Economique Européenne (1970)Google Scholar; Matthews, J.D., The Association system of the European Community (1977)Google Scholar; Lauwaars, R. and Timmermans, C., Europees Gemeenschapsrecht in Kort Bestek (1989).Google Scholar

5. Statement from the Commission to the Council P(89)71.

6. Regarding the main factors for the delay, see Arbuthnott, H., Edwards, G., A Common Man's Guide to the Common Market 186 (1989).Google Scholar

7. The reciprocity in the dismantling of tariff barriers has been deferred by the Community for an initial period. When the Mediterranean partners have developed sufficiently it should be possible to create a ‘free trade area’ between economically equal partners.

8. Cooperation Agreement EEC-Tunesia: Council Regulation No. 2212/78 of September 26, 1978 (O.J. 1978 no. L 265). Each agreement contains an article, based verbatim on each other. Only in the agreements with the Maghreb and Yugoslavia is cooperation in the field of labour (social area) provided for.

9. Title II bears the name of ‘Commercial Cooperation’ or ‘Trade’; the contents corresponds.

10. See, e.g., Art. 8 Cooperation Agreement EEG-Tunesia.

11. See Kapteijn, P.J.G. and VerLoren van Themaat, P., Inleiding tot het Recht der Europese Gemeenschappen 560 (1987)Google Scholar. See also Siotis, J., The Community and its Emerging Mediterranean Policy, in F. Alting von Ceusau (ed.)Google Scholar. The External Relations of the EC 69–83 (1974); Cova, C., The Arab Policy of the ECC, Library Study Centre ‘Hugo de Groot’ (1983).Google Scholar

12. See Arbuthnott, H., Edwards, G., A Common Man's Guide to the Common Market 183 (1989)Google Scholar; Siotis, J., The Community and its Emerging Mediterranean Policy, in F. Alting von Geusau (ed.), The External Relations of the European Communities 69–83 (1974).Google Scholar

13. Bull, of the EC, Commission, No. 12/1989, 2.2.37. See also H. Arbuthnott et al., supra note 12, at 184.

14. The Association, Cooperation Council or the Joint Comittee (Israel) is responsible for the administration of the agreement and the supervision of its proper implementation. To summarize: the Council is authorized to make binding decisions in a number of cases and it performs a supranational role; it has competence to formulate resolutions and recommendations; the Parties may hold consultations within the Council and the Council has competences with regard to the acquisition of information.

15. See, e.g., Nederlandse Tweede Kamerstukken, zitting 1977–1978, no. 14839. The Association Agreements EEC-Malta (1971) and EEC-Cyprus (1973) are exceptions to this rule. The (non) preferential trade agreements are based on Article 113 EEC (regarding the Common Commercial Policy). In the case the agreement in question only covers the exclusive competence of the Community, a mixed agreement need not be concluded. In the case that a trade agreement also covers the policy area of the independent Member States, Arts. 113 and 235 are usually chosen.

16. Article 228 EEC lays down the general rules and is a complement to the lex specialis as embodied, amongst other, in Article 238 EEC.

17. See Ehlermann, CD., Mixed Agreements: a List of Problems, in O’Keeffe, H. Schemers (eds.), Mixed Agreements (1983).Google Scholar

18. See infra in Chapter 5 ‘Status’.

19. Opinion 1/78, ECR 1979, at 2871, Cons. 49.

20. Id., Cons. 60.

21. Case 22/70, ERTA (Commission v. Council), ECR 1971, 263, Cons. 14.

22. Id., Cons. 16.

23. See, e.g., Case 41/76, Donckerwolcke, ECR 1976, 1921: Article 1131ays down an exclusive competence of the Community as a result of the expiration of the transitional period.

24. Cases 3, 4 & 6/76, Kramer, ECR 1976, 1279.

25. Supra note 21, Cons. 16–22 & 30.

26. AETR, 0.30 and 0.31.

27. Cases 3, 4 & 6/76, Kramer, ECR 1976, 1279. The Court stated that the competence may also implicitly result from the treaty conditions necessary for the realization of a specific, in other words, also when no use has already been made of internal competence. However, this liberal interpretation is quite controversial.

28. Opinion 1/76, ECR 1977, 741, Cons. 3.

29. Cf. Opinion 1/76, Cons. 6 and 7.

30. P. Kapteyn et al., 518. Supra note 4.

31. Case 12/86, Demirel, CMLR 1989, 421, Cons. 9; in connection with the provisions on the freedom of movement for workers.

32. All of the EEC-Mediterranean agreements in force were concluded on the basis of Article 238 EEC, except for the Trade Agreement with Israel.

33. See, e.g., Art. 28 Association Agreement EEC-Turkey, O.J. 1978, no. L 265.

34. The Community competence for the regulation of commercial policy relations through creating one-sided measures with regard to import and export (autonomous commercial policy) and through concluding agreements with third countries (conventional commercial policy is dealt with in detail in Article 113 and 114 EEC. See Kapteyn et al., Inleiding tot het Recht der Europese Gemeenschappen 527 (1989).

35. These fields do not belong to the subsidiary or ancillary matters as meant in Opinion 1/78, Cons. 16, supra note 19.

36. See, e.g., Art 14 Association Agreement EEC-Tunesia, O.J. 1969, no. L 198.

37. See, e.g., the Non-Preferential Trade and Technical Cooperation Agreement between the EEC, the Member States and Lebanon, O.J. 1968, no. L 146.

38. Case 181/73, Haegeman, ECR1974, 449 in relation to the Greek Association Agreement and expressly reconfirmed in Case 104/81, Kupferberg, ECR 1982, 3641.

39. See, Art. 228(2) EEC, and Cases 181/73 Haegeman Cons. 5, 104/81 Kupferberg Cons. 13, and Opinion 1/76, Cons. 18.

40. See, Opinion 1/76, 1977, Cons. 18.

41. Id.: the Court stated in Consideration 18 that an international agreement that can lead to an institutional weakening of the Community, to the abandonment of communal policy and to the grumbling of Community's tasks, is consistent with the Treaty conditions.

42. See, Case 104/81, Kupferberg, ECR 1982, 3641, Cons. 13 and Case 181/73, Haegeman, ECR 1974, 449, Cons 5.

43. H. Krück, Völkerrechtliche Verträge im Recht der EG 125–127 (1977); Kriick cites various opinions from critical studies concerning this subject.

44. Case 41/74, Yvonne van Duyn v. Home Office, ECR 1974, 1337, Cons. 6.

45. Case 21–24/74, International Fruit Company, ECR 1972, 1219, Cons. 20.

46. Ibid., Cons. 20 en 27. See also, e.g., Case 266, 267–269 & 290–291/81, Siot, ECR 1983, 847.

47. Case 104/81, Kupferberg, ECR 1982, 3641, Cons. 23.

48. Case 104/81, Kupferberg, ECR 1982, 3641 (Free Trade Agreement EEC-Portugal). See also Case 17/81, Pabst and Richarz, ECR 1982, 1331 1 (Association Agreement EEC-Greece).

49. Case C-l 8/90, Kziber, Recueil de la Jurisprudence de la Cour 1991–1. In the Demirel case, C-12/86, ECR 1987, 3719 the Court rejected the direct effect of two articles, because of their programmatic character Cons. 24 and 25.

50. Case C-192/89, Sevince; preliminary ruling of September 20, 1990; see annotation by H. Schermers, 28 CMLRev. 183–189 (1990). The Court confirmed the direct effect of two implementary decisions of the Association Council EEC-Turkey.

51. Case C-18/90, Kziber, January 31, 1991, Recueil de la Jurisprudence de la Cour, 1991-Iat 199–229; see also the conclusions of the AG mr. M. van Gerven.

52. Ibid., Cons. 15.

53. See, e.g., Art. 8 Cooperation Agreement EEC-Morocco, O.J. 1978, no. L 264.

54. Art. 55 Cooperation Agreement EEC-Morocco.

55. Article 54 of the Cooperation Agreement EEC-Morocco, O.J. 1978, no. L 204 is identical to Article 52 EEC-Algeria, Article 53 EEC-Tunesia, Article 45 EEC-Egypt, Article 42 EEC-Jordania, Article 43 EEC-Syria, Article 43 EEC-Lebanon, Article 24 EEC-Israel and Article 57 EEC-Yugoslavia (1983). Anicle 5 of the Association Agreement between the EEC and Cyprus provides a more briefly worded general prohibition of discrimination in relation to commercial intercourse. Article 5 and Article 9 of, respectively, the Association with Greece and that with Turkey prohibits all forms of discrimination based on nationality.

56. I refer here to the Cooperation Agreement EEC-Morocco. The other agreements contain the same articles.

57. See, Art. 33 Cooperation Agreement EEC-Morocco, O.J. 1978, no. L 264. The text of this article qua application is the same as Article 95(1) EEC-Treaty. The Court has confirmed the direct effect of this article in, amongst others, the Lülticke case, 57/65, ECR 1966. With respect to the verdict of the Kziber case, C-12/90, supra note 51 it is expected that the fiscal discrimination prohibition in the Cooperation Agreement will also come into direct effect. Also compare the decision of an earlier date and in other sense Case 270/80, Polydor, ECR 1982, 329.

58. See, e.g., Art. 9 Cooperation Agreement EEC-Morocco, Art. 9 EEC-Syria, etc., Each agreement contains this provision. Compare with the words in the Articles 12 and 30 EEC ‘between the Member States’. In these cases it pertains to an unilateral prohibition, which forms an exception to the principle of non-discrimination.

59. E.g. the products mentioned in Articles 11, 12 & 14 of the Cooperation Agreement EEC-Morocco and the products that are mentioned on the list of Annex II, EEC-treaty (specific agricultural products).

60. Cooperation Agreement EEC-Morocco, Art. 12(1) jo. 12(3).

61. Art. 12(5).

62. Art. 13.

63. See, e.g., O.J. 1981, no. L 273, Agreement between the EEC and Egypt.

64. See European Documents no. 1/87; the Common Agricultural Policy and its reform, 19 ff..

65. See, e.g., Cooperation Agreement EEC-Morocco Arts. 15, 19, 20, 21 & 22.

66. See, e.g., Art. 18 Cooperation Agreement EEC-Tunesia. In general this system is applicable to nonsensitive or less sensitive products.

67. See, e.g., Art. 20 Cooperation Agreement EEC-Tunesia (idem Art. 20 EEC-Algeria) in relation to wine of fresh grapes; Art. 16 EEC-Tunesia in relation to olive oil. Trade in olive oil must be regarded as an extremely sensitive product of essential national interest for Tunesia.

68. See, e.g., Art. 16(4) Cooperation Agreement EEC-Tunesia.

69. See, e.g., Arts. 15(4), 16(l)(a), 16(2) and 17 Cooperation Agreement EEC-Tunesia.

70. See, Case 89, 104, 114, 116, 117, 125–129/85, Woodpulp, ECR 1988; in relation to the effect of the territorial principle.

71. See, e.g., Art. 24 Cooperation Agreement EEC-Tunesia.

72. Case 104/81, Kupferberg, ECR 1982, 3641, Cons. 21; supra note 42.

73. Case 8/74, Dassonville, ECR 1974, 837, Cons. 5.

74. Case 120/78, Cassis de Dijon, ECR 1979, Cons. 8 in connection with the conditions of the ‘rule of reason’. A clear distintion has to be drawn between the rule of reason developed in the the Dassonville case and in the line of cases following the Rewe case. N.B. a measure that is justified under the ‘Cassis de Dijon’-rule is not a measure having an equivalent effect as quantitative restriction in the sense of Article 30 EEC and is not discriminatory, it is an exception to Article 36; a measure, although forbidden under Article 30 EEC (does have that equivalent effect), may be justified under Article 36 EEC and may discriminate, as long as this does not happen in a disguised or arbitrary way.

75. The Court has always insisted that Article 36 must be strictly Interpreted. This means that justifications not mentioned in Article 36, must be examined under the ‘Cassis de Dijon’-conditions.

76. Case 174/82 Sandoz, ECR 1983, 2445, Cons. 18.

77. Case 270/80, Polydor, ECR 1982, 329, Cons. 15 and 18.

78. See, e.g., Case 104/81, Kupferberg; Case 12/86, Demirel; Case C-192/89 Sevince; Case C-18/90, Kziber. Supra, notes 31, 42, 48, 49 and 50.

79. See, e.g., Cooperation Agreement EEC-Tunesia, Art. 35; EEC-Syria Art. 31; etc..

80. See, e.g., EEC-Tunesia, Art. 36; EEC-Syria Art 32; EEC-Yugoslavia Art 36; etc..

81. Cf. Article 226 EEC (applicable for the period of transition, which has now expired).

82. Art. 38 Cooperation Agreement EEC-Tunesia. Cf. Art. 109(1) EEC.

83. Ibid., Art. 52; cf. Art 223(1) EEC.

84. I take the Cooperation Agreement with Morocco as an example; the structure and the wording of the provisions of the other Mediterranean Agreements in question are identical in substance.

85. Art. 4 Cooperation Agreement EEC-Morocco.

86. Id., Art. 5.

87. See, e.g., Cooperation Council EEC-Yugoslavia, Decision no. 4/83 en 2/84.

88. See, e.g., Art. 6 Cooperation Agreement EEC-Tunesia. The protocol forms an integral part of the Cooperation Agreement.

89. See, e.g., Arts. 2 jo 4 Protocol I on Financial and Technical Cooperation between the EEC and Tunesia, O.J. 1978, no. L 265/35. See also, Bull. EEC no. 9–89, 2.1.15 regarding financial aid for programmes concerning the reform process in Algeria.

90. Protocol I in the Cooperation Agreement EEC-Syria, Arts. 9 and 10, O.J. 1978, no. L 269.

91. Ibid., Art. 11.

92. Bull. EG 7/8–1981, 2.2.47.

93. See, e.g., the Internal Agreement concerning the Financial Protocol EEC-Turkey, O.J., 1972, no. L 293.

94. For the relevant competences of the European Parliament, see primarily Art. 203 EEC ff.. For the European Court of Auditors Art. 206 bis EEC.

95. European documentation, Journal 3–4/1985, ‘The European Community and the Mediterranean Area’.

96. The Association Agreement EEC-Turkey provides for the gradual establishment of a customs union, whereby the free movement of labourers is included. See Art. 12 Association Agreement EEC-Turkey, O.J. 1964, no. L 217.

97. As there are practically no subjects of the Mashrak-states, Israel, Malta en Cyprus working in the EEC, after the judgement of some Member States there existed insufficient reasons for similar conditions to be taken up in the Agreements and Protocols with these states. The Dutch Government was of the opinion that taking up the conditions concerned should nor be dependent on a quantitative criterion.

98. See, e.g., Cooperation Agreement EEC-Morocco, Arts. 40 and 41.

99. See, e.g., Art. 41(2) EEC-Morocco.

100. E.g. Art. 40(1) EEC-Tunesia. See Case C-18/90, Kziber (social security. Art. 41(1) EEC-Morocco) with respect to the direct applicability of the prohibition of discrimination. Supra note 31. For the direct applicability see also Case 12/86, Demirel (freedom of movement. Arts. 7 & 12 EEC-Turkey, Art. 36 First Protocol), and Case C-192/89, Sevince (freedom of movement, residence).