Introduction

The Community has wide treaty-making powers. The authors of the European Economic Community (EEC) Treaty were prudent and cautious on this, as on other major constitutional issues, and used the term ‘agreement’ rather than ‘treaty’, for example in the original Articles 113 and 228 of the Treaty, and that terminology is still generally used today.

Moreover, the EEC Treaty nowhere contained a general provision on the Community's treaty-making powers. The provision of Article 210 that ‘The Community shall have legal personality’, which was relied upon by the European Court of Justice (ECJ) in the ERTA case for that purpose, seems, as its very terms suggest, concerned not with the international legal personality of the Community, but with more mundane matters of domestic law. That is confirmed by Article 211, which concerns the legal capacity of the Community in the Member States. (Contrast Article 6 of the earlier, now defunct, European Coal and Steel Community (ECSC) Treaty: ‘The Community shall have legal personality. In international relations, the Community shall enjoy the legal capacity it requires to perform its functions and attain its objectives.’)

Indeed, it would have been uncharacteristically presumptuous of the Treaty to purport to confer international legal personality on the Community. Moreover, the exercise of treaty-making powers depends in part on the attitude of third States.