Rechtsprobleme gemischter Abkommen am Beispiel der UNESCO Konvention zum Schutz und der Förderung der Diversität kultureller Ausdrucksformen

The conclusion of international agreements by the Community or by the EC and the Member States together as mixed agreements must mainly be seen in the light of three central issues for the establishment and exercise of external competence.
First, this is the finding of the appropriate legal basis for concluding international agreements. Here, the ECJ applies a rule of predominance, which serves to establish the predominant legal basis, and is fraught with highly imprecise terms. Furthermore, the Court uses a rule of incompatibility, which seeks to prevent the accumulation of legal bases with differing procedures, but fails to provide a general solution to such
norm conflicts. Second, the appropriate legal bases decide whether an agreement must be concluded
in mixed form. Here, neither concurrent nor parallel competences require the participation of the EC, thus making mixity only facultative.
Finally, many international agreements contain binding clauses obliging the parties to declare their respective responsibilities under an agreement. Community practice in issuing such declarations of competence is flawed for lack of completeness and transparency. The mentioned legal issues and the quandaries in their application are illustrated by example of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions. This mixed agreement pursues quite diverse regulatory aims, among others the protectionist shielding of domestic culture. It has been concluded by the Council invoking the legal bases for trade, development and culture. Applying the rule of incompatibility, however, the Convention could have
been concluded by the Community alone, and is not, as claimed, a mandatory mixed agreement. The Community declaration of competence, at any rate, is not conducive to foster transparency in external relations. Disputes about the responsibilities under the Convention will only fail to materialise due to its weak binding nature.