Benelux

From Max-EuP 2012

by Liane Schmiedel

Benelux is an acronym for the geographical region comprising the countries of Belgium, the Netherlands and Luxembourg. The term Benelux also refers to the Benelux (Economic) Union (L’Union Economique Benelux—Benelux Economische Unie) existing between those countries, which was instituted by the Traité Union Economique Benelux (Benelux Unieverdrag (UV)).

1. History

The history of this union dates back to the beginning of the 20th century. Due to their common political history the idea of a closer economic cooperation between the three countries seemed self-evident. After World War I the idea to stimulate the economies by harmonizing trade policies and decreasing customs duties and trade restrictions for intra-Community trade between the three nations took hold. As early as 1921, Belgium and Luxembourg therefore concluded a treaty instituting an economic and monetary union between them (Union Economique Belgo-Luxembourgeoise (UEBL)). This treaty created a free trade zone with a common external tariff. In addition, the two currencies were merged in 1944. In 1932, Belgium, Luxembourg and the Netherlands concluded the Agreement of Ouchy with the intention of reducing customs duties amongst each other. However, due to opposition against this unilateral favouritism from the side of third states, the agreement could not come into effect. It took until 1944 before a Customs Union, which abolished intra-Community customs duties and introduced a common external tariff, was founded by the three governments in exile. It came into force in 1948. After a pre-union agreement in 1949, the Traité institutant l’Union Economique Benelux was finally signed on 3 February 1958. The duration of this treaty was originally limited to 50 years (Art 99 UV). On 17 June 2008 the member states therefore signed a new treaty, the Treaty revising the Treaty establishing the Benelux Economic Union (Traité portant revision du Traité instituant l’Union Economique Benelux – HUV). This treaty was finally ratified in May 2011.

2. The Benelux Union Treaty of 1958

The Benelux Union Treaty of 1958 established an economic union between the countries (Art 1(1) UV). They agreed to coordinate their economic, financial and social policies and set up a common trade policy. An internal market with free flow of persons, goods, capital and services was established (Arts 2–5 UV). The principle of equal treatment was applied to all goods and persons irrespective of their origin. The common trade policy comprised a common external tariff and the determination of collective import and export quotas (Art 11 UV). Beside the common tariff, the mutual trade policy included the conclusion of collective trade agreements with third states (Art 10 UV). Article 12 UV provides for a single monetary policy which led to a fixed exchange rate mechanism between the countries after the collapse of the Bretton Woods System in 1971. With the conclusion of the Protocol concerning the abolishment of all restrictions at the internal borders in 1960 and the Convention on the introduction of a common customs area of the Benelux in 1969, practically all trade restrictions within the Benelux Economic Union were abolished. The Benelux Economic Union had become the first single market within Europe.

The UEBL continues to exist alongside the Benelux Economic Union in areas where it constitutes a closer cooperation (Arts 94 UV, 37 HUV). The Treaty, originally expiring in 1972, was last extended by a new Convention in 2001. The Customs Union of 1944 on the other hand has been repealed.

3. Treaty revising the Benelux Union Treaty of 1958

The Treaty of 2008 takes account of the development of the Benelux Union from a mere economic cooperation into a more comprehensive political cooperation. Besides the economic union and the common internal market, cooperation in the fields of justice and home affairs as well as sustainable development have been included as objectives in the Treaty (Art 2 HUV). In order to make the shift of objectives visible, the Benelux Economic Union will henceforward be referred to as the Benelux Union. To monitor achievements, the Treaty provides for a four-year common work programme which has to be set up in advance (Art 3 HUV). The first programme for the years 2009-2012 has already been adopted. For the first time the Benelux Union will have full international legal personality (Art 28 HUV), and the Committee of Ministers and the General Secretariat (see 4. below) will be able to officially maintain diplomatic relationships with foreign states and (regional) corporations (Arts 24-27 HUV). Compared with the Treaty of 1958, the amount of provisions has been considerably reduced (only 40 out of the initial 100 remain). All provisions relating to the economic union have been dropped. Unlike the Treaty of 1958, the new treaty has been concluded for an unlimited period of time (Art 39 HUV). Each member state does, however, posses the right to denounce the Treaty after an initial period of 10 years, taking into account a notice period of three years.

4. Structure and institutions of the Benelux Union

Unlike the European Union, the Benelux Union is rather a mere intergovernmental forum than a supranational organization. There is no transferral of sovereign powers. Decisions within the Benelux cannot be taken against the will of a member state (see Art 18 UV/Art 8 HUV). The institutions of the Benelux have only limited competence. Unlike the organs of the EU, they cannot adopt binding measures against the member states or citizens of member states. All treaties and Conventions that are concluded in the framework of the Benelux Union have to be ratified by the national parliaments of the member states in accordance with respective national procedures like any other international treaty. Measures that are taken to implement the Benelux will only bind the member states. In order to have external effect, they have to be transposed into domestic law first.

The highest organ of the Benelux Union is the Committee of Ministers (Arts 16-22 UV, 6-11 HUV). Each member state is represented by three members of its government. The Committee of Ministers adopts measures to implement the treaties and protocols of the Benelux Union (Arts 16 UV, 6 HUV). It may draft conventions and make recommendations for the development of the Benelux. The Committee of Ministers adopts the common work programme and the annual plan (Art 6(2)b and d) as well as the budget. Finally, it has administrative competence over the other organs of the Union. It can appoint joint services and working groups (Arts 21 UV, 10 HUV) and commissions. The Committee of Ministers acts through binding decisions and non-binding recommendations. The decisions have to be taken unanimously.

The Committee of Ministers is supported by the Benelux Council (Arts 25-27 UV, 12-14 HUV). The Council prepares the meetings and deliberations of the Committee of Ministers and may set up working groups and committees of experts. The provisions specifying seven regular committees and five special committees (Arts 28 and 29 UV) have been repealed. The Council also has the right to propose measures for the implementation of the Benelux. The Council consists of high-ranking officials of the ministries of the member states.

Next to the Benelux Council the Treaty provides for an Interparliamentary Consultative Council (Arts 23 and 24 UV, 15 and 16 HUV). The Benelux Parliament comprises 49 members but, unlike its EU counterpart, does not have any competence with regard to the decision-making process. Its function is a purely advisory one. It can take resolutions on matters of the Benelux, on cultural relationships, on cooperation in matters of foreign affairs and on harmonization of law. Although these resolutions have no binding effect, there is a custom of engaging the Parliament in the process of concluding new Conventions and agreements.

The central administrative body of the Benelux Union (Arts 33-39 UV, 19-23 HUV) is the General Secretariat. It coordinates the work of the different institutions and is responsible for administrative implementation. After the entering into force of the Treaty of 2008 it will also be responsible for drafting the common work programme and the annual plans.

To resolve disputes between the countries over the Treaty and the Conventions resulting from it, the Treaty of 1958 envisioned a College of Arbitrators. The College was to arbitrate disputes between the member states and give advisory opinions in matters of the treaties. The College, however, never came to assume any significance and has been repealed by the Treaty of 2008. The same is true for the Economic and Social Consultative Council which was supposed to function as a further advisory body alongside the Parliament.

The uniform interpretation of common rules and measures taken within the framework of the Benelux is secured by the Benelux Court of Justice. This institution was originally not provided for in the Treaty of 1958. It was instituted by a separate agreement, modelled after the European Court of Justice (ECJ), in 1965. The Benelux Court came into effect in 1974. The main task of the Court is to promote the uniform application and interpretation of Benelux law. To this end the Court can decide in preliminary rulings on the interpretation of Benelux law. Every national judge can submit pending disputes that involve questions of Benelux law to the Court (Art 6(2) Traité du 31 mars 1965 relatif à l’institution et au statut d’une Cour de Justice). The judge is generally obliged to do so if his decision cannot be appealed against (Art 6(3) Traité du 31 mars 1965). However, unlike the ECJ, the competence of the Benelux Court extends only to those Conventions, agreements, protocols and decisions of the Committee of Ministers and the Benelux Office for Intellectual Property (see 5. below) that have been expressly subjected to its control. The decision of the Court will be binding only for the submitting court and potential further judicial authorities in relation to the case in question. Complementary to the preliminary ruling, the Court’s statute provides for an opinion procedure. At the request of a government of a member state, the Court will give an advisory opinion on questions of the interpretation of Benelux law. Besides safeguarding competences, the Court also functions as an international administrative tribunal for the civil servants of the Benelux institutions. As a result of the inter-governmental structure of Benelux, the Benelux Court has no competence over disputes amongst organs and/ or member states of the Union and there are no provisions for claims of individuals. With the Treaty of 2008 the Court has been officially recognized as the fifth institution of the Benelux.

5. Harmonization of law

Besides the establishment of a common market, the harmonization of the law of the member states, especially the law of commerce, was the main objective of the Benelux Economic Union. In 1948, even before the formal foundation of the Union, the three countries had established the Commission for the Study of the Unification of Law which was to evaluate the possibilities for legal harmonization. The first steps were taken in the field of trademark law. In 1962 the Convention on Trademarks (Convention Benelux en matière de marques de produits) was concluded. In 1966, the Convention on Designs (Convention Benelux en matière de dessins ou modèles) followed. With these two conventions, the Benelux Union established a common frame for the law on trade mark and the law on industrial design. The registration of trademarks and designs in the three countries was assumed by the centralized Benelux office for trademarks and the Benelux office for designs. In 2001 and 2002 the law on trademarks and designs was completely harmonized by the Benelux law on trademarks and the Benelux law on designs. Finally, in 2006, the Convention on Intellectual Property (Convention Benelux en matière de propriété intellectuelle) replaced all the former Conventions with a comprehensive regulation of all aspects of the law of intellectual property, the law on trademarks as well as the law of designs. The two separate offices were merged into one, the Benelux Office for Intellectual Property, which has its own legal personality. In addition to the harmonization of the law of intellectual property, the Convention introduced a new procedure for the adoption of law in this field, which aims to speed up the adaptation to international developments. International treaties on the law of intellectual property may now be implemented by way of a decision of the Committee of Ministers without having to undergo the otherwise necessary ratification procedure within the member states.

Further steps in the process of the harmonization of law were taken within the field of insurance law. The 1966 Convention on the compulsory motor vehicle liability insurance (in force since 1976) provided for a uniform basis for claims in the Benelux in case of an accident.

Other attempts, however, failed. One prominent example is the harmonization of the private international law of the member states. This ambitious project started in 1951 when, based on the works of the harmonization commission, the Netherlands, Belgium and Luxembourg concluded a treaty with the intention of introducing a common private international law. This treaty became the basis for the 1969 Benelux Convention on the introduction of a common private international law. The Convention has, however, never been ratified by all member states and has therefore never entered into force. The same is true for a number of other Conventions, eg the Convention on the Agency Agreement, harmonizing the law of commercial agents, and the Convention on the penalty clause of 1973. Conventions that have been ratified by all member states are the 1973 Convention on the Uniform Law on Penalty Payments (penalty clauses) and the 1972 Convention on commorientes. Provisions of Conventions that have not been ratified have, however, often formed the basis for provisions of national law on the respective matter. Since the late 1970s attempts to harmonize the law of the member states have basically come to a standstill, with the exception of the law on intellectual property. This may be attributed to the increasing harmonization within the EEC and the EU (see 7. below) as well as to the lack of unanimity between the Benelux states.

6. Further Benelux policies

Besides the establishment of a common market with free movement of goods, persons and capital, the Benelux Treaty of 1958, unlike the EU treaties, does not specify any further goals. The Benelux policies were, however, never restricted to economic cooperation. The new Benelux Treaty of 2008 recognizes this engagement by broadening the objectives of the Benelux Union. The Benelux is involved in the fields of police matters, justice and home affairs. Since 1980 the Benelux Union has increased its efforts in cross-border cooperation. As early as 1962, the member countries concluded the Treaty concerning Extradition and Mutual Assistance in Criminal Matters. In 1968, a treaty on the execution of judicial decisions in criminal matters followed. And in 1970, Conventions on dangerous implements, arms and ammunition were concluded. However, most of these Conventions failed to receive the necessary ratifications by the member states. In recent years, the efforts of the Benelux Union focused on the fight against cross-border crime, environmental protection, sustainable development and social and cultural cooperation. A first step was the 1986 Convention on Cross-Border Cooperation between Territorial Partnerships or Authorities. Since 1996 the so-called Senningen Memorandum forms the basis for the cooperation in the areas of police matters, home affairs and immigration. This treaty was renewed and extended in 2004 and is currently (2011) up for revision. The efforts within the framework of the Memorandum resulted, alongside other achievements, in the conclusion of a Convention on cross-border police cooperation. This treaty allows for a coordination of different police authorities in the countries and permits police officers from the three countries to operate on the territory of the respective other member states.

For questions of cross-border transport the Benelux established the Euro Contrôle Route in 1999. The Euro Contrôle Route is responsible for transport controls as well as establishing common security standards for traffic. At present, 14 countries are affiliated with the association. In addition to the Euro Contrôle Route, the Benelux Union works together with Germany and France in the Pentalateral Energy Forum, an initiative to establish a regional energy market in order to ensure a sustainable supply of energy. Another focus of the cooperation is the social security of cross-border workers and consumer protection (consumers and consumer protection law).

As already mentioned above, after the realization of the internal common market, the Benelux Union was more an institution for political initiative than a law-making organization. This is to a great extent the result of its structure. Unlike the European Union, the Benelux Union has no original legislative competence. Since all treaties and Conventions concluded within the Benelux need the ratification of the member states and decisions of the Committee of Ministers cannot be taken against the will of one member state, the Benelux cannot develop independently from the common will of all the member states. However, after the early treaties of the 1960s and 1970s the member states more and more frequently failed to reach a common understanding. At present, the Benelux is therefore mainly used as a forum for (political) debate over (cross-border) issues which equally concern all the member states. Another focus of the Benelux lies in regional cross-border cooperation, especially in the fields of crime-fighting, transport, environmental protection, sustainable development and regional planning. To this end it also instituted a cross-border cooperation with North Rhine-Westphalia in 2009.

7. Benelux (Economic) Union and the European Union

At the time of the signing of the Rome Treaties establishing the European Economic Community, the Benelux Economic Union was already in existence, albeit not yet consolidated by a treaty. The Benelux member states wanted to be able to develop the Benelux Economic Union, especially their envisioned common internal market, independently from the European Economic Community and the establishment of a common market within its framework (European internal market). The Treaty on the European Economic Community therefore contained a provision which allowed for closer cooperations apart from the EEC (Art 233 EECT). According to this article, now Art 350 TFEU/306 EC, the Benelux (Economic) Union may continue to exist alongside the European Union insofar as it represents a closer cooperation and its goals have not yet been attained by the EU.

Conversely, the Benelux Economic Union has not been without its influence on the EEC and the EU. After the initiative to establish a European Defensive Community failed in 1955, the initiatives of the Benelux countries represented a decisive impulse for the conclusion of the Rome Treaties. The Benelux Economic Union formed the first completely free international single market and thereby became an example for similar initiatives within the European Economic Community. In addition to the internal common market, other initiatives have also become examples for regulations within the EEC. The most prominent is the 1960 Protocol and Convention on the transfer of control of persons to the external frontiers of the Benelux territory, which became the model for the Schengen Agreement of 1985. Another one can be found in the exchange-rate mechanism that was introduced in the framework of the common monetary policy, which later became the model for the ECU. The Benelux Economic Union is therefore often referred to as the Petri dish (Keimzelle) of the European Economic Community.

The Benelux (Economic) Union has gradually been overtaken by the advancing integration within the European Union. The main goal of the Benelux, the establishment of a common internal market, has by now been fully accomplished within the EU as well. Remaining fields for the Benelux are the implementation of European directives into Benelux law, eg the directive on the protection of intellectual property rights (Dir 2004/48). The Benelux Union furthermore serves as a forum for the participating countries to coordinate their positions within the European Union or other international organizations, so-called Benelux memoranda. However, due to the distinctly different positions of the member states the outcome of the coordination remains diverse and the impact of the Benelux is rather remote. It remains to be seen whether the Benelux Union can regain some of its importance with its new Treaty of 2008. It seems, in any case, to have refreshed the spirit and induced an increase in activities (see <www.benelux.int>).

Literature

Frohlinde von Berg, Die Juristische Struktur der Belgisch-Niederländisch-Luxemburgischen Wirtschaftsunion (1965); CD van Beschoten, Ontwerp Benelux-verdrag houdende eenvormige wet betreffende het internationaal privaatrecht van 3 juli 1969 (1971); Secretariaat-Generaal van de Benelux Economische Unie, Benelux-Overeenkomst betreffende de agentuurovereenkomst (1973); Rudolf Kraßer and Marcel Gotzen, Das Benelux-Warenzeichenrecht (1973); Frédéric Dumon, La Cour de Justice Benelux, Benelux Gerechtshof (1980 and 1983); Mario Hirsch, ‘Benelux ist mehr als nur ein geographischer Begriff: Ein Motor der europäischen Integration’ in Eckart D Stratenschulte and Danuta Kneip (eds), Staatenkooperation in der Europäischen Union (2003); Charles Gielen, Kort begrip van het Benelux merkenrecht (2006); Jan Wouters and others, De Benelux: tijd voor een wedergeboorte? (2006); Raphaël Mathieu, Le Benelux: Laboratoire de l’intégration ou structure résiduaire au sein de l’Union européenne? (2006); Irene GC Janssen, Benelux: Closer Cooperation within the EU? (2006); Jan Wouters and Maarten Vidal, ‘De Benelux: betekenis voor de rechtspraktizijn’ in VGR-Alumni (eds), Recht in Beweging—14de VGR-Alumni dag (2007); Jan Wouters and Maarten Vidal, ‘Towards a rebirth of Benelux?’, Working Paper Leuven Centre for Global Governance Studies (2008).

Retrieved from Benelux – Max-EuP 2012 on 01 December 2022.

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