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The conclusion of “mixed” international agreements is a legal phenomenon peculiar to the EU legal order. Essentially, two main forms of mixity can be distinguished: facultative mixity and obligatory mixity. A number of recent decisions of the Court have dealt with this dichotomy. The aim of this article is to provide some critical insight with respect to that case law. On the one hand, that case law made it clear that the Court has never rejected the very idea of facultative mixity. On the other hand, however, even after that case law, it remains unclear whether there are limits of a constitutional nature to the Council’s room for manoeuvre when having to take a decision on the (EU-only or mixed) nature of international agreements. A first issue is whether any agreement which affects, no matter how little, some area of law still subject to Member States’ exclusive competence must inevitably be concluded as mixed. A second issue is whether there are systemic limits, respect of which the Court is entitled to check, to the Council’s discretion in choosing the nature of an agreement that appears to trigger facultative mixity.
