eu external action

8/10/2019 Eu External Action

1/46

1

Chapter 24

EU External Action

Geert De Baere

Contents

1. Introduction

2. The foundations of EU external action

3. The existence of EU external competences

4. The nature of EU external competences

5.

Decision-making in EU external action

6. External representation and international agreements

7. Managing the vertical division of EU external competences

8. Managing the horizontal division of EU external competences

9.

Conclusion

1. Introduction

In a 2010 article in Time Magazine, Singaporean scholar Kishore Mahbubani did not pull any

punches when describing the EUs position in the world:1

Europe just doesn't get it. It does not get how irrelevant it is becoming to the rest of the world.

And it does not get how relevant the rest of the world is becoming to its future. The world is

changing rapidly. Europe continues to drift. I am not exaggerating when I say Europe's

obsession with restructuring its internal arrangements is akin to rearranging the deck chairs of

a sinking Titanic.

This chapter looks at how the deck chairs are currently arranged, which inevitably involves

looking at the ship on which they stand. It starts from the assumption that in order to cast

judgment on whether the EUs external policies are effective and consistent (which the image

of a drifting or sinking ship would appear to belie) and in general on how the EU has

performed as an international actor, it is crucial to understand how the EU is equipped to do

so.

The chapter therefore offers an introduction into the law governing how the EU

organizes its relations with the outside world.2Those relations are both broad in scope and

varied in substance. The goods and services that cross the EUs external borders, most of the

planes that fly across those borders, much of the pollution that comes from or enters into theEU, the fish caught by EU fishermen outside EU waters and many more issues besides are

regulated by EU external action law.3

1K Mahbubani, Europes Errors Time Magazine(8 March 2010).2An earlier attempt can be found in G De Baere, The Basics of EU External Relations Law: An Overview ofthe Post-Lisbon Constitutional Framework for Developing the External Dimensions of EU Asylum and

Migration Policy in M Maes, M-C Foblets, and Ph De Bruycker (eds), External Dimensions of EU Migrationand Asylum Law and Policy/Dimensions Externes du Droit et de la Politique dImmigration et dAsile de lUE(Brussels: Bruylant, 2011) 121-174.3This chapter uses the term external action in the same sense as the Treaties, ie as encompassing all externalpolicies of the Union. Those policies include both what this chapter will refer to as ordinary EU external action

on the one hand and the common foreign and security policy (CFSP) on the other hand, ie the former first andsecond pillars of the EU before the Lisbon Treaty (see further chapter 2). The chapter occasionally uses the termexternal relations in the same sense when appropriate (the term is also used twice in the Treaties, namely in


2/46

2

The resulting legal framework is of a complexity verging on the byzantine. That is

because the Member States, in various ways, want to preserve their competence and control

over EU external action on the one hand, but also seek to enhance the EUs external

effectiveness and consistency on the other hand. These twin objectives are in obvious tension

if not conflict but they have each manifested themselves (as has the tension between them)

in the multiple rounds of Treaty amendment in various ways.4

This chapter explores the resulting complex division of competences between the

Member States and the Union and between the different institutions of the Union in the field

of external action. The chapter also examines the applicable decision-making procedures,

including the procedure for concluding international agreements, and explores the Unions

composite system of external representation, illustrating the intricacies involved by looking

more closely at EU external environmental policy. Finally, the chapter explores how the

Union manages the vertical (between the Union and the Member States) and horizontal

(between the different institutions and policy fields of the EU) division of its external

competences. While the position of the Union within the wider context of the international

legal order and the status of international law within the EU legal order are clearly an

important part of the story of the Unions external action,5this chapter (with the exception ofa limited number of references) only covers the internal EU constitutional law with respect to

external action.

2. The foundations of EU external action

2.1 In search of consistency and effectiveness

One of the core tasks of the key new actors of the EUs external action introduced by the

Lisbon Treaty, the High Representative of the Union for Foreign Affairs and Security Policy

(the High Representative) and the European External Action Service (EEAS), is to ensure

the consistency of the Union's external action. 6The drafters of the Treaties clearly realized

that consistency in external action would be problematic for the Union, as is evident from the

fact that Article 21(3), second paragraph TEU returns to the issue and provides for the Union

to

ensure consistency between the different areas of its external action and between these and its

other policies. The Council and the Commission, assisted by the High Representative of the

Union for Foreign Affairs and Security Policy, shall ensure that consistency and shall

cooperate to that effect.

Why would consistency or effectiveness be an issue for EU external action? The point of

departure in answering that question must be the awareness of a crucial difference between

Arts 18(4) TEU and 355(3) TFEU). Compare G de Brca, EU External Relations: The Governance Mode ofForeign Policy in B Van Vooren, S Blockmans, and J Wouters (eds), The EUs Role in Global Governance: TheLegal Dimension(Oxford: OUP, 2013) 39-58.4See eg with respect to the common commercial (ie external trade) policy (CCP) and the doctrine of impliedexternal competences: G De Baere and P Koutrakos, The interactions between the legislature and the judiciary

in EU external relations in P Syrpis (ed.), The Judiciary, the Legislature and the EU Internal Market(Cambridge: CUP, 2012) 244-257.5eg PJ Kuijper, J Wouters, F Hoffmeister, G De Baere, and T Ramopoulos, The Law of EU External Relations:

Cases, Materials, and Commentary on the EU as an International Legal Actor(Oxford: OUP, 2013) chs 5 and12.6

Art 18(4) TEU and Art 3(1) of Council Decision 2010/427/EU of 26 July 2010 establishing the organisationand functioning of the European External Action Service [2010] L201/30 (EEAS Decision). See further section5.3 of this chapter.


3/46

3

the United Kingdom (or indeed most countries) on the one hand, and the EU on the other

hand: when considering a response to an international situation, the first question the EU asks

itself is not how it could react most effectively, but whether it in fact has the requisite

competence to act at all and, if so, on what legal basis in the Treaties and through what

institution action should be taken. In other words, the Union must always give precedence to

considerations of competence over considerations of effectiveness.7

2.2 The principle of conferral

In essence, that is because the Unions competences are governed by the principle of conferral

as laid down in Article 5(1) and (2) TEU:8

1. The limits of Union competences are governed by the principle of conferral. [...]

2. Under the principle of conferral, the Union shall act only within the limits of the

competences conferred upon it by the Member States in the Treaties to attain the objectives set

out therein. Competences not conferred upon the Union in the Treaties remain with theMember States.

This principle incorporates the idea, fundamental not only in the law of international

organizations, but also in the constitutional law of many federal states, that the organisation or

the federal level of government (here the Union) only has those competences that the Member

States have explicitly or impliedly conferred on it in the constitution (here the Treaties).

Before contemplating any action, whether internal or external, the Union must therefore first

determine whether it actually has competence to do so. This implies essentially two things: a)

the EU is incapable of extending its own competences9and b) it does not have general law-

making capacity. Put differently, every single EU action requires one or more legal bases in

the Treaties, which must be based on objective factors (including the aim and content of themeasure) that are amenable to judicial review,10and which determines both the vertical and

horizontal division of competences.11

2.3 The distinction between ordinary EU external action and the CFSP

Crucially, this principle of conferral applies as much to external action as to internal

policies.12In other words, in its external policies too, the EU only has those competences that

the Member States have conferred on it in the Treaties. The Member States also have the

liberty to decide the manner in which they confer those competences and how much power

they are willing to relinquish, which to a large extent explains why the EU still does not take a

united approach to external action. Instead, the EU approaches the subject from two quite

7G De Baere, Constitutional Principles of EU External Relations (Oxford: OUP, 2008) 10 and the literaturecited therein.8For more on the concept of EU competences, see chapter 5.

9Further: P Craig, The Lisbon Treaty: Law, Politics, and Treaty Reform (Oxford: OUP, 2010) 156-157.

10Case C-137/12 Commission v Council (Conditional Access Convention)[2013] ECR I-0000, para 52 and the

case-law cited there.11See Case C-301/06Ireland v Parliament and Council (Personal Data Protection) [2009] ECR-593, para 56.

For more on the concept of legal bases, see chapter 5.12Opinion 2/94Accession by the Communities to the ECHR[1996] ECR I-1759, para 24. See also Opinion 2/00

Cartagena Protocol[2001] ECR I-9713, para 5.


4/46

4

different angles, based on the distinction between two core aspects of international

relations:13

a) external socioeconomic relations, such as external trade and development cooperation,

which fall within what this chapter will refer to as ordinary EU external action. The legal

rules governing this area are mostly set out in the TFEU; andb) what is commonly called high politics (diplomatic activity and security and defence issues),

which fall within the the common foreign and security policy (CFSP). The legal rules

governing this area are mostly set out in the TEU.

That distinction also corresponds to that between the former first and second pillars of the EU

before the Lisbon Treaty (see further chapter 2). The EUs fundamentally different approach

to these two areas has persisted after Lisbon, despite the introduction of Title V of the TEU

(General Provisions on the Unions External Action and Specific Provisions on the Common

Foreign and Security Policy) and Part Five of the TFEU (entitled simply The Unions

External Action), and despite a single set of objectives for EU external action as a whole in

Articles 3(5) and 21(2) TEU.

14

It is hardly a novelty to question the assumption that external socioeconomic

relations can be easily separated from high politics. Hill has noted that

the once popular distinction between high and low politics is no longer of much help. High

politics in the sense of serious conflict touching on the states most basic concerns can be

as much about monetary integration as about territory and the threat of armed attack.

Conversely, low politics in the sense of routine exchanges contained within knowable limits

and rarely reaching the public realm can be observed in NATO [North Atlantic Treaty

Organization] or OSCE [Organization for Security and Co-operation in Europe]

multilateralism as much as (perhaps more than) in discussions over fish or airport landing

rights. Thus the intrinsic contentof an issue is not a guide to its level of political salience or to

the way it will be handled, except in the tautological sense that any issue which blows up intoa high-level international conflict (and almost anything has the potential so to do) will lead to

decision-makers at the highest level suddenly taking over responsibility [].15

Yet the distinction persists in the EUs constitutional structure, mainly because most of the

Member States want to remain firmly in charge of their high politics, or what they choose to

regard as such. As the UK Governments 2013 EU competence review dryly puts it: 16

The majority of our evidence judged that Member States were firmly in charge of the

Common Foreign and Security Policy (CFSP) and Common Security and Defence Policy

(CSDP), and could act unilaterally when they judged fit, as the French did in Mali.

Unsurprisingly, the consistency between the various external policies of the EU and the

effectiveness of EU external action as a whole remains a challenge.

13A Dashwood, M Dougan, B Rodger, E Spaventa, and D Wyatt, Wyatt and Dashwoods European Union Law,

(6th edn, Oxford and Portland, OR: Hart Publishing, 2011) 13.14See also Art 205 TFEU.15

C Hill, The Changing Politics of Foreign Policy(London: Palgrave, 2003) 4.16HM Government, Review of the Balance of Competences between the United Kingdom and the European

Union: Foreign Policy(London: 2013) 88, para 6.4.


5/46

5

2.4 The CFSP

As is clear from Title V TEU (General Provisions on the Unions External Action and

Specific Provisions on the Common Foreign and Security Policy), the Lisbon Treaty has

subjected the CFSP to the overall constitutional framework of the EU. The formal abolition of

the pillar structure, however, does not imply a complete harmonization of procedures and anintegration of all policies under the former Community; instead it essentially leaves the

former second pillar standing in a modified manner. The post-Lisbon EU Treaty takes into

account the different characters of different policies and still permits a substantial amount of

differentiation as to how the Unions institutions are involved in law-making. The 2007

Intergovernmental Conference, which led to the adoption of the Lisbon Treaty, decided to

drop the idea of one single Constitutional Treaty and to keep the TEU and the (renamed)

TFEU as two distinct Treaties, with the CFSP and the European Neighbourhood Policy 17as

the only substantive policies in the TEU. The Lisbon Treaty therefore establishes a single

legal order for the Union, but with a more markedly separate sub-order for the CFSP.18

Moreover, while the ordinary Union framework under the TFEU is governed by the

technique of detailed and specific attribution of competences,19the present Chapter 2 of TitleV TEU on the CFSP remains characterized by an absence of any clear let alone detailed list of

what precisely it encompasses. Instead, the allocation of competences in the CFSP consists of

the general grant of competence in Article 24(1) TEU, which covers:

all areas of foreign policy and all questions relating to the Unions security, including the

progressive framing of a common defence policy that might lead to a common defence.

Article 42(1) TEU in addition provides that the common security and defence policy (CSDP):

shall be an integral part of the common foreign and security policy. It shall provide the Union

with an operational capacity drawing on civilian and military assets.

The CSDP is to include (Article 42(2) TEU):

the progressive framing of a common Union defence policy. This will lead to a common

defence, when the European Council, acting unanimously, so decides. It shall in that case

recommend to the Member States the adoption of such a decision in accordance with their

respective constitutional requirements.

The assurance that the CSDP will lead to a common defence may at first view appear to

contain a much stronger commitment than Article 24(1) TEU, which merely refers to

the progressive framing of a common defence policy that mightlead to a common defence.20

However, the role of the European Council and the condition that the Member States need to

adopt a decision in accordance with their respective constitutional requirements make it clear

that not much legal significance should be attached to the phrase will lead to a common

defence in Article 42(2) TEU, which should be understood as an aspirational statement of a

purely political nature.

17Art 8 TEU.18Further: De Baere, n 7, 209-213.19

cf A Dashwood, The Relationship Between the Member States and the European Union/EuropeanCommunity (2004) 41 CML Rev 357 et seq.20

Emphasis added.


6/46

6

Does then the principle of conferral actually apply to the CFSP? Given that, under the

previous Treaty framework, the principle of conferral was not explicitly enshrined in the

former EU Treaty, but in the first paragraph of then Article 5 TEC, some doubted whether the

principle applied to the CFSP.21Article 5(1) and (2) TEU (see above), as introduced by the

Lisbon Treaty in Title I (Common Provisions) of the EU Treaty, has now removed all doubt

in that regard.Remarkably, however, the Lisbon Treaty has reinforced the contrast between attribution in

ordinary EU external action and in the CFSP by deleting the specific CFSP objectives that

before the Lisbon Treaty were listed in ex Article 11(1) TEU, according to which the Union

was to define and implement a CFSP covering all areas of foreign and security policy, the

objectives of which were:

to safeguard the common values, fundamental interests, independence and integrity of the

Union in conformity with the principles of the United Nations Charter,

to strengthen the security of the Union in all ways,

to preserve peace and strengthen international security, in accordance with the principles of the

United Nations Charter, as well as the principles of the Helsinki Final Act[

22

] and the objectives ofthe Paris Charter[

23], including those on external borders,

to promote international cooperation,

to develop and consolidate democracy and the rule of law, and respect for human rights and

fundamental freedoms.

In removing those objectives from the CFSP chapter, the Lisbon Treaty has made the

attribution within the CFSP even less detailed and specific than it was before. Instead, Article

21 TEU now contains the overall objectives of EU external action. Article 21(1) TEU

provides:

The Union's action on the international scene shall be guided by the principles which have

inspired its own creation, development and enlargement, and which it seeks to advance in the

wider world: democracy, the rule of law, the universality and indivisibility of human rights

and fundamental freedoms, respect for human dignity, the principles of equality and solidarity,

and respect for the principles of the United Nations Charter and international law.

Article 21(2) TEU further elaborates these in a rather more comprehensive list of objectives.

It provides that the Union is to define and pursue common policies and actions, and to work

for a high degree of cooperation in all fields of international relations, in order to:

(a) safeguard its values, fundamental interests, security, independence and integrity;

(b) consolidate and support democracy, the rule of law, human rights and the principles of

international law;(c) preserve peace, prevent conflicts and strengthen international security, in accordance with

the purposes and principles of the United Nations Charter, with the principles of the Helsinki

Final Act and with the aims of the Charter of Paris, including those relating to external

borders;

(d) foster the sustainable economic, social and environmental development of developing

countries, with the primary aim of eradicating poverty;

(e) encourage the integration of all countries into the world economy, including through the

progressive abolition of restrictions on international trade;

21

See the discussion in De Baere, n 7, 105.22Conference on Security and Co-operation in Europe Final Act, Helsinki, 1975.

23Charter of Paris for a New Europe, Paris 1990.


7/46

7

(f) help develop international measures to preserve and improve the quality of the environment

and the sustainable management of global natural resources, in order to ensure sustainable

development;

(g) assist populations, countries and regions confronting natural or man-made disasters; and

(h) promote an international system based on stronger multilateral cooperation and good

global governance.

While some of the old CFSP objectives re-emerge in that list (notably in (a), (b), (c), and (h)),

it is important to emphasize that they are objectives common to EU external action in its

entirety. That leaves the CFSP with only the most general of competence attributions in

Article 24(1) TEU as covering all areas of foreign policy and all questions relating to the

Union's security.

Detailed and specific attribution of competences is an important aspect of the principle

of conferral as it operates under the TFEU, and its absence in Chapter 2 of Title V of the EU

Treaty indicates that the principle applies in a different manner in the CFSP legal order. The

Lisbon Treaty has reinforced the contrast between ordinary EU external action and the CFSP

in that respect.

3. The existence of EU external competences

3.1 The fundamentals

The former EC Treaty did not contain a general legal basis for external action.24Article 281

TEC explicitly conferred legal personality on the Community, 25 but the general capacity

derived from that Article did not constitute an independent legal basis for the adoption of

international agreements. However, as a legal person, the Community had the capacity to

exercise rights in international legal transactions and enter into obligations over the entire

field of its objectives.26

Contrary to the Community, the pre-Lisbon Union had not beenexplicitly endowed with legal personality. Nevertheless, ex Article 24 TEU provided the

Union with a procedural framework for making international agreements within the spheres of

the former second and third pillars concerning the CFSP and Police and Judicial Cooperation

in Criminal Matters (PJCCM), respectively, and pre-Lisbonpractice tends to suggest that the

EU already had legal personality.27

With the entry into force of the Lisbon Treaty, Article 47 TEU explicitly confirms the

Unions legal personality (merged with the legal personality of the former Community: see

Art 1, para 3 TEU), thereby removing any lingering doubt in that regard. Furthermore, Article

216(1) TFEU affirms the general capacity of the Union to conclude international agreements.

That provision stipulates that the Union may conclude an agreement with one or more third

countries or international organizations

24Contrast Art 101 of the Treaty establishing the European Atomic Energy Community (consolidated version)

(EAEC) [2012] OJ C327/1, which provides: The Community may, within the limits of its powers andjurisdiction, enter into obligations by concluding agreements or contracts with a third State, an internationalorganisation or a national of a third State.25

cf the identical Art 184 EAEC.26

Case 22/70 Commission v Council(ERTA)[1971] ECR 263, paras 13-14; and Joined Cases 3, 4, and 6/76Cornelis Kramer and Others(Kramer) [1976] ECR 1279, paras 17-18.27eg Council Decision 2001/352/CFSP concerning the conclusion of the Agreement between the EuropeanUnion and the Federal Republic of Yugoslavia (FRY) on the activities of the European Union Monitoring

Mission (EUMM) [2001] OJ L125/1; Council Decision 2010/53/CFSP of 30 November 2009 concerning theconclusion of the Agreement between Australia and the European Union on the security of classified information[2010] OJ L 26/30.


8/46

8

a) where the Treaties so provide; or

b) where the conclusion of an agreement is necessary in order to achieve, within the

framework of the Unions policies, one of the objectives referred to in the Treaties, or is

provided for in a legally binding Union act or is likely to affect common rules or alter their

scope.

While a) encompasses the category of competences for the EU to act externally that have been

explicitly provided for in the Treaties,28b) is intended as a codification of the Court of Justice

of the EU (ECJ)s case-law on implied competences, which were recognized for the first

time inERTA.29

That case concerned Council proceedings of 20 March 1970 regarding the negotiation

and conclusion by the Member States of the then Community, under the auspices of the

United Nations Economic Commission for Europe (UNECE), of the European agreement

concerning the work of crews of vehicles engaged in international road transport (ERTA in

English or AETR in French). The proceedings concerned an arrangement arrived at, not by

the Council as an institution of the then Community, but by the Member States meeting in the

Council. The Commission requested the annulment of the proceedings, arguing that theCommunity as such should have concluded this agreement and not the Member States. As

there were no relevant explicit external competences for the Community, the case gave the

Court the opportunity for the first time to set out its views on whether external competences

could perhaps be implied from explicitly conferred internal competences. Implied external

competences will be examined more closely in the next section.

3.2 Implied competences

The Treaty provisions regulating external action have always been spread over the entire

Treaty, as well as incomplete. Nevertheless, the Lisbon Treaty improved the situation

somewhat by introducing Part Five TFEU, which can be considered as a step in the directionof improved overall consistency in external action. Attempts to address the lack of explicit

legal bases have been made predominantly in two ways: 30 first, explicit legal bases for

external competences were added to the Treaties in subsequent amendments; and second, the

ECJ interpreted the existing Treaty provisions so as to allow the Union to develop a viable

external action policy, resulting in what is mostly referred to as implied external

competences.

The doctrine of implied competences is a well-known principle of municipal

constitutional law and of the law of international institutions. 31 Within the EU, implied

competences have been relied on mostly with regard to external action. As noted above, the

(extensive and meandering) ECJ case-law on implied external competences has now been

codified in Article 216(1) TFEU. That provision encompasses three principles, which will beconsidered in turn. The possibility for implied competences within the CFSP will also be

briefly considered.

28Further De Baere, n 7, 11-16; P Eeckhout,EU External Relations Law(2nd edn, Oxford : OUP, 2011) 122.

29ERTA, n 26, para 17.30EU external competences can also arise from such general legal bases as Arts 114, 115, and 352 TFEU. See

further De Baere, n 7, 29-31 and 58-59.31egMCulloch v The State of Maryland et al.,17 U.S. 316, 407 (1819); andReparation for Injuries suffered in

the Service of the United Nations [1949] ICJ Reports 174, 182.


9/46

9

3.2.1 ERTA

The Union: may conclude an agreement with one or more third countries or international

organisations ... where the conclusion of an agreement ... is likely to affect common rules or

alter their scope. This codifies theERTAprinciple: the Member States are not allowed to act

internationally in a way that would affect existing EU law, because the situation cannot beremedied by merely disapplying the infringing rule. The Member States competence is thus

excluded, which necessitates the existence of EU competences to compensate for the Member

States inability to act. The resulting EU competence is exclusive pursuant to Article 3(2)

TFEU.32

3.2.2 Complementarity

The Union: may conclude an agreement with one or more third countries or international

organisations ... where the conclusion of an agreement is necessary in order to achieve, within

the framework of the Unions policies, one of the objectives referred to in the Treaties ....

This codifies the complementarity principle,33

which was spelled out in Opinion 1/76European laying-up fund for inland waterway vessels.34

In contrast to ERTA, that case concerned a situation where no internal Community

legislation (here on the laying-up of barges) existed at the moment the then Community

wanted to conclude an agreement with Switzerland. The Communitys aim was the

rationalization of the economic situation in the inland waterways sector in the Rhine and

Moselle basins, and throughout all the Netherlands inland waterways and the German inland

waterways linked to the Rhine basin, by elimination of short-term overcapacity of the fleet.

Given that vessels from Switzerland traditionally participate in navigation on these

waterways, it was hard to imagine how that objective could be achieved solely by the

establishment of autonomous Community common rules. 35 It was therefore necessary to

bring Switzerland into the scheme through an international agreement. Hence the rule thatwhenever EU law has conferred internal competences on the institutions to attain a specific

objective, the Union can enter into the international commitments necessary for attainment of

that objective even in the absence of an express provision to that effect. 36

Internal Union competences are supported by the corresponding external competences

only when the latter are truly implicit in the former. This is the case when the internal Union

competences cannot reasonably be expected to be effectively exercised without the possibility

for the Union to enter into international agreements with third countries on the same subject-

matter. However, the complementarity principle as codified in Article 216(1) TFEU appears

to be wider in scope than the case-law on which it is based. In particular, it is not entirely

clear whether external action should be necessary for the achievement of the objectives of an

explicitly granted competence, or whether the general objectives of EU external action in

Article 21 TEU could also give rise to external Union competence on this basis.37

32See section 4.2.1 below.33

A Dashwood, The Attribution of External Relations Competence in A Dashwood and C Hillion (eds), TheGeneral Law of E.C. External Relations(London: Sweet & Maxwell, 2000) 127132.34

[1977] ECR 741. But see alreadyKramer, n 26, paras 30 and 33.35See nevertheless De Baere, n 7, 57-58.36Opinion 1/76, n 34, para 3;Opinion 2/94, n 12, para 26.37

M Cremona, External Relations and External Competence of the European Union: The Emergence of anIntegrated Policy in P Craig and G de Brca (eds), The Evolution of EU Law(2nd edn, Oxford: OUP, 2011)225.


10/46

10

3.2.3 Legally binding Union acts

Article 216(1) TFEU also lists the prima facie rather straightforward possibility for the Union

to conclude an agreement with one or more third countries or international organisations ...

where the conclusion of an agreement ... is provided for in a legally binding Union act ...,

that is to say, in a regulation, a directive, or a decision.38

That provision will be discussed inits relationship to Article 3(2) TFEU in the next section.

3.2.4 The CFSP

In any event, applying the doctrine of implied competences requires caution and restraint.

That is even more the case with respect to the CFSP, especially because the ECJ for the most

part lacks jurisdiction with respect to the provisions in the EU Treaty relating to the CFSP and

with respect to acts adopted on the basis of those provisions. 39Moreover, the nature of the

attribution as regards the CFSP in Article 24(1) TEU is so broad that an application of the

doctrine of implied competences implying all the competences needed for an effective CFSP

would lead to an extensive grant of external action competences going far beyond what theEU Treaty permits.

4. The nature of EU external competences

4.1 The fundamentals

One of the more significant novelties introduced by the Lisbon Treaty is Title I of Part One of

the FEU Treaty entitled Categories and Areas of Union Competence. Three of those

categories as listed in Article 2 TFEU are most relevant for the Unions external action and

will be further explored here: 40 exclusive competences, 41 shared competences, 42 and the

competence to define and implement a CFSP, including the progressive framing of a CSDP.43

The main principles on when the Union is exclusively competent have now been laid

down in Article 3 TFEU, the first paragraph of which lists the five explicitly attributed or a

priori exclusive competences of the Union:

(a) customs union;

(b) the establishing of the competition rules necessary for the functioning of the internal market;

(c) monetary policy for the Member States whose currency is the euro;

(d) the conservation of marine biological resources under the common fisheries policy;

(e) common commercial policy.

Both the internal and the external aspects of these policies belong to the exclusive competenceof the Union. In addition, the second paragraph of Article 3 TFEU provides for the Union to

have exclusive competence for the conclusion of an international agreement when its

conclusion is provided for in a legislative act of the Union or is necessary to enable the Union

to exercise its internal competence, or in so far as its conclusion may affect common rules or

alter their scope. 44 While it attempts to codify the case-law of the ECJ on exclusive

38Art 288 TFEU.

39See section 5.2.

40See also Art 2(3) and (5) TFEU, which will not be considered further in the present chapter.41Art 2(1) TFEU.42

Art 2(2) TFEU.43Art 2(4) TFEU. As noted already, the categories of EU competences are fully examined in chapter 5.

44Art 3(2) TFEU.


11/46

11

competences, the criteria listed in Article 3(2) TFEU appear to be neither entirely clear nor

sufficiently nuanced and hence in need of further judicial clarification. The ECJs existing

case-law on the nature of EU external competences will therefore need to be taken into

account. 45 The different instances of when the Union acquires an exclusive external

competence pursuant to Article 3(2) TFEU will be examined in section 4.2.

However, it is important to understand that the EUs competence should be presumedto be non-exclusive, unless there are clear indications to the contrary.46 Within the category of

non-exclusive competences, a distinction should be made between shared competences on the

one hand and CFSP competences on the other hand. In turn, within the shared competences, a

number of further sub-categories can be distinguished: the shared competences that follow the

basic rule, shared competences on the basis of minimum standards, and parallel competences.

The coordination by the Union of Member States competences when EU competences are

shared should also be examined in that connection. All these form the subject of section 4.4.

4.2 Exclusive external competence on the basis of Article 3(2) TFEU

4.2.1

ERTAexclusivity

Article 3(2) TFEU provides that the Union will have exclusive competence for the conclusion

of an international agreement insofar as its conclusion may affect common rules or alter their

scope. That reflects the possibility for an EU external competence to become exclusive

through the exercise of an EU internal competence. That eventuality is called the ERTA-

doctrine or ERTA exclusivity, which follows the logic of the principle of primacy (ie the

priority of EU law over Member States law), 47 but imposes greater strictures on the

international actions of the Member States than primacy does internally.48

This manner of acquiring exclusive external competences was recognized for the first

time by the ECJ in theERTA case and further refined inter alia in the Open Skiescases.49The

latter cases concerned eight separate actions brought by the Commission under Article 169 of

the EC Treaty (ex Article 226 TEC and now Article 258 TFEU) against the UK, Denmark,

Sweden, Finland, Belgium, Luxembourg, Austria, and Germany. They concerned various

breaches of then Community law arising from the conclusion by those Member States of

bilateral air transport agreements with the United States of America. That gave the ECJ the

opportunity to clarify its case-law according to which Member States are not to enter into

international obligations outside the framework of the Union institutions if these obligations

fall within the scope of the common rules, or within an area which is already largely covered

by such rules, even if there is no contradiction between those commitments and the common

rules.50 The ECJ held that if the Union has achieved complete harmonization in a given area, it

acquires an exclusive external competence in that area, even in the absence of any express

45In that sense also: Opinion of Advocate General (AG) Kokott in Conditional Access Convention, n 10, points

111-113.46See, to that effect, Case C-370/12Pringle [2012] ECR I-0000, paras 120-121.47For more on the concept of primacy, see chapter 6. As to whether the principle of primacy applies to theCFSP, see De Baere, n 7, 20112; and Craig, n 9, 431-433.48

De Baere, n 7, 71-72.49

Case C-466/98 Commission v United Kingdom[2002] ECR I-9427; Case C-467/98 Commission v Denmark[2002] ECR I-9519; Case C-468/98 Commission v Sweden[2002] ECR I-9575; Case C-469/98 Commission vFinland [2002] ECR I-9627; Case C-471/98 Commission v Belgium [2002] ECR I-9681; Case C-472/98Commission v Luxembourg[2002] ECR I-9741; Case C-475/98 Commission v Austria[2002] ECR I-9797; Case

C-476/98 Commission v Germany[2002] ECR I-9855. The ECJ confirmed its approach in the 2002 Open Skiesjudgments in Case C-523/04 Commission v Netherlands[2007] ECR I-3267.50

See eg Commission v Denmark, n 49, para 82; Commission vGermany, n 49, para 108.


12/46

12

provision authorizing its institutions to negotiate with non-Member States. This is so because

the common rules thus adopted could be affected within the meaning of the ERTAprinciple if

the Member States retained freedom to negotiate with non-Member States.51Both explicit and

implied external competences can become exclusive through the exercise by the Union of its

competences.

The principles and the complexity involved in their application can be illustrated bylooking at the situation in Open Skies. There, the Court held that the relevant Community

legislation did not govern the granting of traffic rights on intra-Community routes to non-

Community carriers nor operating licences of non-Community air carriers which operated

within the then Community. In other words, the international commitments at issue did not

fall within an area already covered by Community rules and could hence not be regarded as

affecting those rules. 52However, Community rules had indirectly but definitely, prohibited

air carriers of non-member countries operating in the Community from introducing new

products or fares lower than the ones existing for identical products. As a consequence, the

Community had acquired exclusive competence to enter into commitments with non-member

countries relating to that limitation on the freedom of non-Community carriers to set fares and

rates. 53Relevant Community legislation also applied to nationals of non-member countries,where they offer for use or use a computerised reservation systems (CRS) in Community

territory. The Community thus acquired exclusive competence to contract with non-member

countries the obligations relating to CRSs offered for use or used in its territory. 54Finally,

common rules for the allocation of slots at Community airports applied, subject to reciprocity,

to air carriers of non-member countries, with the result that the Community had exclusive

competence to conclude agreements in that area with non-member countries. 55

Determining whether and to what extent the Union has exclusive external competence

on the basis that the conclusion of an international agreement may affect common rules or

alter their scope therefore requires a detailed and often cumbersome analysis. As Advocate

General Tizzano put it in his Opinion in Open Skies: 56

I must point out, however, that in order to establish that the common rules are affected it is not

enough to cite general effects of an economic nature which the agreements could have on the

functioning of the internal market; what is required instead is to specify in detail the aspects of

the Community legislation which could be prejudiced by the agreements.

That requirement can be explained by the fact that the Court needs to steer a very careful

course between the desire of the Member States to remain present on the international scene

on the basis of their own competences and the need to allow the Union to build a viable (ie

effective and consistent) external action policy.

4.2.2

Exclusivity on the basis of a legislative act


of an international agreement when its conclusion is provided for in a legislative act of the

Union. 57 The Lisbon Treaty has thereby codified the ECJs case-law to that effect. In

Opinion 1/94 GATS and TRIPS, the ECJ held that

51Commission v Denmark, n 49, para 84; Commission vGermany, n 49, para 110.

52Commission v Denmark, n 49, paras 91-92.

53ibid, para 98.54ibid, paras 102-103.55

ibid, para 106.56Opinion of Tizzano AG in Open Skies, n 49, point 77.

57cf Art 289(3) TFEU.


13/46

13

[w]henever the [Union] has included in its internal legislative acts provisions relating to the

treatment of nationals of non-member countries or expressly conferred on its institutions

powers to negotiate with non-member countries, it acquires exclusive external competence in

the spheres covered by those acts.58

The ECJ seemed to hold that this automaticallyimplied exclusive competence for the Union.

That statement does appear to merit some nuance in the light of, inter alia, Article 4(3) and

(4) TFEU, which ostensibly provide for a type of shared competence without pre-emption

(see below section 4.4.1), whereby the Union cannot never prevent the Member States from

acting (and vice versa):

3. In the areas of research, technological development and space, the Union shall have

competence to carry out activities, in particular to define and implement programmes;

however, the exercise of that competence shall not result in Member States being prevented

from exercising theirs.

4. In the areas of development cooperation and humanitarian aid, the Union shall have

competence to carry out activities and conduct a common policy; however, the exercise of that

competence shall not result in Member States being prevented from exercising theirs.

As mentioned above, Article 216(1) TFEU grants the Union the competence to conclude an

agreement with one or more third countries or international organizations where the

conclusion of an agreement is provided for in a legally binding Union act. Does the

difference in language between Articles 3(2) (provided for in a legislative act of the Union)

and 216(1) TFEU (provided for in a legally binding Union act) imply that the exclusive

nature of the external competence depends on the nature of the procedure by which the

internal act granting that competence was adopted? That would indeed seem to be the

implication of the wording of those two provisions: 59 if the possibility to conclude an

international agreement is provided for in a legally binding Union act, the EU acquires

competence to conclude that agreement on the basis of Article 216(1) TFEU. If that same

possibility is provided for in a legislative act, the Union acquires exclusive competence to

conclude that agreement. However, it would seem that even a legislative act cannot grant the

Union an exclusive external competence in those areas for which Article 4(3) and (4) TFEU

explicitly provides that the Member States cannot be prevented from acting internationally.

4.2.3 Exclusivity on the basis of necessity for the exercise of internal competence


of an international agreement when this is necessary to enable the Union to exercise itsinternal competence. That codifies the ECJs case-law providing for the possibility of

exclusivity to arise out of the fact that the internal and external aspects of a policy area can

only be exercised effectively together.

The Commission had, for example, argued that such a situation was at hand in Open

Skies.The Court disagreed. It held that the EC Treaty did not prevent the institutions from

arranging, through internal Community rules, concerted action in relation to the USA.

Furthermore, the EC Treaty equally did not prevent the institutions from prescribing the

58[1994] ECR I-5267, para 95; see also Commission v Denmark, n 49, para 83; Commission vGermany, n 49,para 109.59

Perhaps the distinction in wording was introduced to make it clear that this principle cannot give rise to anexclusive competence within the CFSP, given that Art 24(1), second subpara, TEU and Art 31(1) TEU excludethe adoption of legislative acts.


14/46

14

approach the Member States should take in their external relations, in order to alleviate

possible discrimination or distortions of competition resulting from the implementation of the

open skies agreements entered into by certain Member States with the USA. The ECJ

concluded that it had not been established that the aims of the EC Treaty in the area of air

transport could not be achieved by establishing autonomous Community rules.60This was

confirmed, the Court held, by the fact that in 1992 the Council was able to adopt a set ofmeasures achieving the internal market in air transport services without feeling the need to

enter into any international agreements with the USA. That the measures adopted by the

Council contained some provisions on the treatment of third-country nationals did not

diminish the force of that conclusion in any way. There was, therefore, in casuno question of

an internal competence that can only be effectively exercised at the same time as the

corresponding external competence, and that would render such a competence exclusive in

accordance with the Courts reading of Opinion 1/76. 61

Given that the Court appears to have regarded Opinion 1/76 (see section 3.2 above) as

authority both for the existence and for the exclusive nature of implied external competence,

the question arises as to whether and how this blurring of the two issues found its way into the

TFEU. In particular, how can Article 3(2) TFEU in this respect be distinguished from the factthat the Union may conclude an agreement with one or more third countries or international

organisations [...] where the conclusion of an agreement is necessary in order to achieve,

within the framework of the Unions policies, one of the objectives referred to in the Treaties

[...], pursuant to Article 216(1) TFEU.

Perhaps the distinction between existence of implied external competence under

Article 216(1) TFEU and the exclusive nature of that competence under Article 3(2) TFEU

can be brought back to a distinction the ECJ arguably appears to have made in part of its case-

law. On the one hand, there exist situations in which the Union wishes to further, on the

external front, internal policy goals, the optimal use of which presupposes an external

complement, but which could nonetheless arguably have been sufficiently attained with

internal rules only. The Union acquires a non-exclusive external competence in those

situations. This is what Opinion 2/92 Third Revised Decision of the OECD on national

treatment seemed to say62and appears to correspond to Article 216(1) TFEU. On the other

hand, there may be the rare factual constellations in which the objectives of EU competences

could not possibly be achieved without including third countries, through international

agreements, into the binding legal framework regulating the situation. The Union would

acquire exclusive implied external competences in case of such an inextricable link,63though

it is difficult to come up with an example of a situation that would unambiguously fall within

that category.64

At any rate, neither Article 216(1) TFEU nor Article 3(2) TFEU sufficiently reflect the

complexity of the case-law on which they are based, especially with regard to the need for aninextricable link in order for necessity to give rise to an exclusive Union competence. The

ECJ will presumably rely on its pre-codification case-law to interpret the text of those two

provisions, including inter alia what is to be understood under necessary.65

60Commission vGermany, n 49, para 85; see also Opinion 1/03 Competence of the Community to conclude the

new Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil andcommercial matters[2006] ECR I-1145, para 123.61

Commission vGermany, n 49, paras 8689.62[1995] ECR I-521, para 32.63The ECJ omitted a reference to the need for such an inextricable link in Opinion 1/03, n 60, para 115.64

Compare Eeckhout, n 28, 118, arguing that exclusive implied competences should in fact be confined to theERTAdoctrine.65

cf De Baere and Koutrakos, n 4, 257 and 273.


15/46

15

4.3 Consequences of exclusive competence

Article 2(1) TFEU provides that when the Treaties confer on the Union exclusive competence

in a specific area, only the Union may legislate and adopt legally binding acts. The Member

States are only able to do so themselves if they have been so empowered by the Union or for

the implementation of Union acts (see the discussion of implementation by the Member Statesin sections 5.1 and 5.2). Specifically with respect to external action, it follows from the ECJs

case-law that the exclusivity of the Unions external competence has two main consequences,

which are really two sides of the same coin:66

a) First, when the external competence in a certain area is exclusive, the Member States, as the

ECJ put it in ERTA, no longer have the right, acting individually or even collectively, to

undertake obligations with third countries.67

The ECJ also referred to what is now Article

4(3) TEU, enshrining the principle of loyalty and sincere cooperation, and concluded that it

would be impossible for the Member States operating outside the institutional framework of

the Union to assume responsibilities that might affect or alter the scope of Union rules that

have been promulgated for the attainment of Treaty objectives.

68

b)

Second, the ECJ pointed out in Ruling 1/78 Draft IAEA Convention on the Physical

Protection of Nuclear Materials, Facilities and Transports that when external Union

competence is exclusive,

the Member States, whether acting individually or collectively, are no longer able to impose onthe [Union] obligations which impose conditions on the exercise of prerogatives whichthenceforth belong to the [Union] and which therefore no longer fall within the field of

national sovereignty.69

In other words, the Member States must not attempt to constrain the Unions exercise of its

exclusive competence and must cooperate loyally with it in order to facilitate such an

exercise.70

Exclusivity imposes an obligation on the Member States not to enter into any international

agreements that could affect the Unions exclusive competences. In other words, it limits the

possibility for law-making by the Member States. They are legally obliged not to exercise

their competences to enter into certain international agreements.

There are three main reasons for this:

a)

first, the desire to avoid adverse consequences for the Member States international liability in

case they conclude an international agreement incompatible with EU law;

b)

second, the possibility that the existence of an international agreement autonomously

concluded by the Member States could prejudice the integrity of the coherent system of rules

established by EU law;71and

c) third, the possibility that Member States might block the evolution of EU law by concluding

international agreements the subject-matter of which is covered by common rules, thus

freezing Union law in the state it is in at the moment the agreement is concluded. This

explains why even if the intended agreement would be consistent with EU law, the Member

66Exclusivity also implies the inapplicability of the principle of subsidiarity: Art 5(3), first subpara, TEU. On

that principle, see further chapter 5.67

ERTA, n 26, para 17.68 Ibid, para 22; further: Opinion 1/75 Draft Understanding on a Local Cost Standard drawn up under theauspices of the OECD[1975] ECR 1355, 1364.69

[1978] ECR 2151, para 32.70cf ibid, paras 33 and 22;Kramer, n 26, paras 4445.

71See Opinion 1/03, n 60, paras 122133.


16/46

16

States are not allowed to conclude it if it falls under exclusive Union competences.72

Moreover, it is important to understand that competence issues in principle need to be resolved

before the intended international agreement is even negotiated, as it needs to be established

who will negotiate. Given that, in the nature of things, there will be no final text of the

agreement at that point in time, the resolution of the competence question cannot depend on

the existence of an actual conflict between the agreement and the EU common rules.73

However, the Member States retain capacity to conduct international relations both under

national and international law. Exclusive Union competences simply require them not to act

autonomously. This is evident from the text of Article 2(1) TFEU, which provides for the

possibility for the Union to empower the Member States to act in an area in which the Union

enjoys exclusive competence. EU law can therefore authorize the Member States to act jointly

on the international plane even within exclusive external Union competences.74Examples of

such empowerment are a number of regulations in which the Union established a procedure

for the negotiation and conclusion of agreements between Member States and third countries

concerning jurisdiction, recognition, and enforcement of judgments and decisions in

matrimonial matters, matters of parental responsibility, and matters relating to maintenanceobligations, and the law applicable to matters relating to maintenance obligations. 75

A particular issue arises when an agenda item in an international organization relates to a

subject falling within exclusive Union competence, but where the Union itself has not

managed to become a member of the organization. In such situations, the division of

competences must equally be complied with, and Member States are not to make unilateral

proposals, even for non-binding acts. The Court underlined as much with respect to a proposal

Greece submitted to the International Maritime Organization (IMO) Maritime Safety

Committee to examine the creation of check lists or other appropriate tools for assisting the

Contracting States of the International Convention for the Safety of Life at Sea (the SOLAS

Convention) in monitoring whether ships and port facilities complied with certain

requirements.76

4.4 Non-exclusive competences

4.4.1

Shared competences

The basic rule

Shared competences, as provided for by Articles 2(2) and 4 TFEU (sometimes referred to as

concurrent competences), can be exercised by the Member States to the extent that the

Union has not exercised, or has decided to cease exercising,77 its competence. Article 2(2)

TFEU therefore ties Member States competences to the evolving exercise of EU competenceover time:78

72See also the Opinion of Tizzano AG in Open Skies, n 49, points 71-74.

73Eeckhout, n 28, 86.74See further De Baere, n 7, 59-61.75Council Regulation (EC) No 664/2009 [2009] OJ L200/46. Compare Regulation (EC) No 662/2009 of the

European Parliament and of the Council of 13 July 2009 establishing a procedure for the negotiation andconclusion of agreements between Member States and third countries on particular matters concerning the lawapplicable to contractual and non-contractual obligations [2009] OJ L200/25. See Eeckhout, n 28, 162.76Case C-45/07 Commission v Greece [2009] ECR I-701. See Kuijper, Wouters, Hoffmeister, De Baere, andRamopoulos, n 5, 222-225.77

See Declaration 18 in relation to the delimitation of competences [2012] OJ C326/346.78The Member States unease in that regard caused them to annex to the TEU and TFEU Protocol No 25 on the

exercise of shared competence [2012] OJ C326/307.


17/46

17

When the Treaties confer on the Union a competence shared with the Member States in a

specific area, the Union and the Member States may legislate and adopt legally binding acts in

that area. The Member States shall exercise their competence to the extent that the Union has

not exercised its competence. The Member States shall again exercise their competence to the

extent that the Union has decided to cease exercising its competence.

The effect of this is often referred to as occupying the field or, by analogy with US

constitutional doctrine, pre-emption. 79 However, the mechanism is not as generally

applicable as it may seem. Apart from the parallel competences discussed further in this

section, a number of shared competences preclude the EU from fully harmonizing the law in a

certain area, mainly because the Union can only lay down minimum standards.

Minimum standards

A prominent example is Article 193 TFEU, which determines that the substantive

environmental measures adopted on the basis of Article 192 TFEU are to be only minimummeasures:

The protective measures adopted pursuant to Article 192 shall not prevent any Member State

from maintaining or introducing more stringent protective measures. Such measures must be

compatible with the Treaties. They shall be notified to the Commission.

The concept of internal Union minimum standards thus involves the Union harmonizing a

certain policy area on the basis of minimum requirements, while leaving the Member States

free to adopt more stringent measures. As the ECJ held in Opinion 1/03, the fact that both the

Union rules and the international agreement in question lay down minimum standards

may justify the conclusion that the [Union] rules are not affected, even if the [Union] rules and

the provisions of the agreement cover the same area.80

The requirement that both the Union rules and the international agreement in question lay

down minimum standards is necessary in order not to inhibit the development of Union law.

If an international agreement lays down an absolute standard, and the Union subsequently

decides to raise its minimum standards above the absolute standard of the agreement, a

conflict may arise with inevitable consequences for the international responsibility of the

Union. External environmental competences and the impact of the fact that they are mostly

based on minimum requirements will be further explored in this chapters case study. As will

be illustrated there, the principle of sincere cooperation in Article 4(3) TEU may neverthelessrestrict Member State action, even if they are acting within their own sphere of competence.

79See the discussion of the pre-emption doctrine in G De Baere and K Gutman, Federalism and International

Relations in the European Union and the United States: A Comparative Outlook in E Cloots, G De Baere, and SSottiaux (eds), Federalism in the European Union(Oxford and Portland, OR: Hart Publishing, 2012) 157-165.However, the ECJ has not adopted this term, and there is no academic consensus on its usage. Nevertheless, theterm has on occasion been used by an Advocate General: see, eg, the Opinion of Ruiz-Jarabo Colomer AG inCase C-478/07Budjovick Budvar [2009] ECR I-7721, point 93.80

Opinion 1/03, n 60, paras 123 and 127. See also Opinion 2/91 ILO Convention No 170 [1993] ECR I-1061,para 18. The ECJ further clarified the impact of minimum standards in Case C-246/07 CommissionvSweden(PFOS)[2010] ECR I-3317, para 102. See further below.


18/46

18

Parallel competences

Parallel competences (a term not used in the Treaties) leave both the Union and the Member

States competent to act internationally without one being able definitively to prevent the other

from acting. An important example of the latter category 81 is Article 211 TFEU on

development cooperation, which states that the Union and the Member States, each withintheir respective spheres of competence, are to cooperate with third countries and with the

competent international organizations. Pursuant to Article 209(2) TFEU, the arrangements for

Union cooperation may be the subject of agreements between the Union and the third parties

concerned. However, Article 209(2) TFEU ends with the explicit assurance that the external

competence described in that Article shall be without prejudice to Member States

competence to negotiate in international bodies and to conclude international agreements.

Furthermore, Article 4(4) TFEU provides for the exercise of the Unions competence in the

areas of development cooperation and humanitarian aid not to result in Member States being

prevented from exercising theirs, thus creating parallel competences in those areas.

Coordination of Member States actions

The Union may in some areas of shared competences adopt measures designed to coordinate

Member States exercise of their competence and the EUs exercise of its competence. For

example, in Open Skies, the Court countered the Commissions argument that the conclusion

of an international agreement was necessary in order to attain objectives of the Treaty that

could not be attained by establishing autonomous rules by holding that there was:

nothing in the Treaty to prevent the institutions arranging, in the common rules laid down by

them, concerted action in relation to the United States of America, or to prevent them

prescribing the approach to be taken by the Member States in their external dealings, so as to

mitigate any discrimination or distortions of competition which might result from theimplementation of the commitments entered into by certain Member States with the United

States of America under open skies agreements.

Following the judgments in Open Skies, the EU did indeed adopt legislation coordinating

Member States exercise of their competence with respect to international agreements with

third states as regards air traffic rights.82Furthermore, on 30 April 2007, the then Community

and its Member States and the USA signed the Air Transport Agreement designed to replace

the bilateral open skies agreements between the USA and various EU Member States.83The

Agreement was provisionally applied from 30 March 2008 for all EU Member States, 84and

amended by a Protocol, 85 signed and provisionally applied on 24 June 2010. 86 The

Agreement aims to open access to markets and to maximize benefits for consumers, airlines,labour, and communities on both sides of the Atlantic not just between the initial parties, but

also by extending the Agreement to include third countries,87 a call to which Norway and

81See also Art 191(4) TFEU (environmental policy) and Art 219(4) TFEU (monetary policy).82

Regulation (EC) No 847/2004, [2004] OJ L157/7.83

Decision 2007/339/EC of the Council and the Representatives of the Governments of the Member States of theEuropean Union, meeting within the Council, [2007] OJ L134/1.84See Art 25(1) of the EU-US Air Transport Agreement.85Decision 2010/465/EU of the Council and the Representatives of the Governments of the Member States of

the European Union, meeting within the Council, [2010] OJ L223/1.86See Art 9(1) of the Protocol to the EU-US Air Transport Agreement.

87Art 18(5) of the EU-US Air Transport Agreement.


19/46

19

Iceland have responded.88Besides that, the EU and the Member States have jointly agreed a

number of comprehensive treaties with third states on aviation issues, including the

liberalization of traffic rights.89Due to the shared competence on these issues, these treaties

are mixed agreements (ie agreements to which both the EU and the Member States are

parties; see section 7.1 below).

4.4.2 The CFSP

Finally, what type of competence is the CFSP? Could it be argued that Article 4(1) TFEU

(The Union shall share competence with the Member States where the Treaties confer on it a

competence which does not relate to the areas referred to in Articles 3 and 6) implies that the

CFSP is a shared competence as well? Though a literal reading of Article 4(1) TFEU would

seem to have that consequence, in view of Declarations Nos 13 and 14, annexed to the Lisbon

Final Act,90it appears highly unlikely that the Member States had the intention of subjecting

the CFSP to the corollary of shared competences, namely that the Member States can exercise

their competence to the extent that the Union has not exercised its competence or has

decided to cease exercising its competence. 91Moreover, if the CFSP was intended to be a shared competence, why then create a

separate category of CFSP competence in Article 2(4) TFEU instead of listing it among

shared competences in Article 4(2) TFEU and adding a clause to the effect that the exercise

of that competence shall not result in Member States being prevented from exercising theirs,

as was done with regard to research, technological development, space, development

cooperation and humanitarian aid in Article 4(3) and (4) TFEU?

5. Decision-making in EU external action

5.1 The ordinary Union method

The ordinary Union method92of decision-making is characterized by

a)

the central role of the Commission in formulating proposals;93

b)

qualified majority voting (QMV) in the Council;94

c)

involvement of the European Parliament with varying intensity depending on the decision-

making procedure, but since Lisbon mostly through the ordinary legislative procedure;95

and

d) the role of the ECJ in ensuring judicial accountability.96

88

Decision 2011/708/EU of the Council and of the Representatives of the Governments of the Member States ofthe European Union, meeting within the Council of 16 June 2011, [2011] OJ L283/1.89

See the Annex to the Communication from the Commission to the European Parliament, the Council, theEuropean Economic and Social Committee and the Committee of the Regions: The EU's External AviationPolicy - Addressing Future Challenges COM(2012) 556 final.90[2012] OJ C326/345. These two declarations emphasize that the provisions on the CFSP in the TEU do notaffect the responsibilities, the existing legal basis, and the powers of the Member States for the formulation andconduct of their foreign policy.91

Art 2(2) TFEU, which applies, for example, to the common agricultural policy: eg Case C-373/11 PanelliniosSyndesmos Viomichanion Metapoiisis Kapnou[2013] ECR I-0000, paras 26-27. cf Craig, n 9, 182.92

This chapter uses the term ordinary Union method for what formerly was usually referred to as theCommunity method.93Art 17(2) TEU.94

Art 16(3) TEU.95Arts 289(1) and 294 TFEU.

96Art 19(1) TEU.


20/46

20

This is not the place for an exhaustive analysis of the various aspects of the ordinary Union

method.97However, a couple of particular points as regards its operation within the field of

external action need to be made.

First, as far as autonomous acts are concerned, the Union legal instruments are

identical in internal and external policies. The fact that decisions not specifying to whom theyare addressed, which formerly fell outside the scope of ex Article 249 TEC and were therefore

sui generis,98 are now given an explicit legal basis in the fourth paragraph of Article 288

TFEU, would seem to point to there being less need to have recourse to legal instruments

outside the scope of that Article.

Second, the role of the European Parliament in the Unions ordinary external action,

while larger than in the CFSP (see section 5.2 below), is still smaller than with regard to

internal Union policies. This was even more the case before the entry into force of the Lisbon

Treaty. For example, in the Unions largest and most successful area of external action, the

common commercial (ie external trade) policy (CCP), the European Parliament had no

formal role in the internal decision-making procedure. The Lisbon Treaty has changed the

role of the European Parliament in EU external action in quite important ways, especially withregard to the ordinary EU external action (see further section 6.2 below). As regards the CCP,

Article 207(2) TFEU now provides for the ordinary legislative procedure to apply to measures

defining the framework for its implementation. Because Article 218(6)(a)(v) TFEU now

provides for the Parliaments consent to be necessary for agreements covering fields to which

the ordinary legislative procedure applies, the CCP is now in principle subject to full

parliamentary control, both as regards autonomous measures and international agreements.

Third, an all-important point of discussion regarding the ordinary Union method is the

procedure followed by the Council for adopting decisions. The options range from unanimity

to several forms of majority voting, mostly through QMV.99

Fourth, Union measures are, in the absence of specific provisions to the contrary, to be

implemented by the Member States,100with due regard to the principle of sincere cooperation

in Article 4(3) TEU. In ordinary EU external action, if uniform conditions for implementing

legally binding Union acts are required at the Union level, those acts are to confer

implementing powers on the Commission, or, in duly justified specific cases, on the

Council.101In the field of development cooperation, for example, or in programmes such as

under the European Neighbourhood and Partnership Instrument,102the Commission actively

oversees implementation. However, the Commission needs to coordinate in that regard with

the High Representative, and the EEAS is to contribute to the programming and management

cycle for such instruments. That said, the EEAS has a particular role in the programming, but

the management of the Unions external cooperation programmes remains under the

responsibility of the Commission, which implements the Union budget

103

and retains theauthority over the operational credits.104

97On this issue, see chapter 3 (as regards the political institutions) and chapter 10 (as regards the Court).

98See De Baere, n 7, 73-74 and 119-121.99eg Art 207(4) TFEU. On Council voting rules generally, see chapter 4.100Art 291(1) TFEU.101

Art 291(2) TFEU.102

Regulation (EC) No 1638/2006 of the European Parliament and of the Council, [2006] OJ L310/1.103

Art 317 TFEU.104Art 9 EEAS Decision. Further on the EEAS-Commission relationship: J Wouters, G De Baere, B VanVooren, K Raube, J Odermatt, T Ramopoulos, T Van den Sanden, Y Tanghe, The Organisation and Functioning

of the European External Action Service: Achievements, Challenges and Opportunities (Brussels: EuropeanParliament, Directorate-General for External Policies of the Union, Directorate B, Policy Department, 2013) 46-57 (EP EEAS Study).


21/46

21

Finally, the Court has played a crucial role in the development of Union external action

through its case-law and its advisory opinions. The most significant contrast with respect to

the role of the Court between internal and external matters, apart from its generally more

circumspect approach to the latter, is the specific procedure for a preliminary opinion, as laid

down in Article 218(11) TFEU:

A Member State, the European Parliament, the Council or the Commission may obtain the opinion

of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties.

Where the opinion of the Court is adverse, the agreement envisaged may not enter into force

unless it is amended or the Treaties are revised.

There is no similar procedure for determining in advance whether an internal proposal is in

accordance with the Treaties. The presence of this procedure with regard to external matters

and its absence with respect to internal matters can be explained by the specific needs of

external action. The Union cannot afford to conclude an agreement with third countries that

will later be found to be infringing the Treaties. For example, in Opinion 2/94, the Court ruled

that the then Community could not accede to the European Convention on Human Rights(ECHR)105without amendment of the Treaties, thereby providing the necessary impetus for

the drafters of the Lisbon Treaty to insert a new Article 6(2) in the EU Treaty stating that the

Union is to accede to the ECHR.106

Moreover, the Courts normal jurisdiction applies to treaties concluded by the EU, as

regards their interpretation and the validity of the decisions to conclude them on the EUs

behalf. 107 Article 216(2) TFEU provides for agreements concluded by the Union to be

binding upon the institutions of the Union and on its Member States. Such agreements

prevail over EU acts,108 and their provisions form an integral part of the EU legal order as

from their entry into force.109The direct consequence thereof is that the validity of an EU act

may be affected by the fact that it is incompatible with rules of international law when a

number of conditions are fulfilled:110First, the EU must be bound by those rules;111second,the nature and the broad logic of the international treaty in question must not preclude the ECJ

from examining the validity of an EU act in the light of its provisions;112 third, the treaty

provisions relied upon for the purpose of examining the validity of the EU act in question

appear, as regards their content, to be unconditional and sufficiently precise,113ie they contain

a clear and precise obligation that is not subject, in its implementation or effects, to the

adoption of any subsequent measure.114

105

Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, 213U.N.T.S. 221.106

An agreement on the EUs accession to the ECHR was reached in April 2013, and the Court of Justice hasbeen asked whether this agreement is compatible with EU law: Opinion 2/13 [2013] OJ C260/19, pending. See

further chapter 9.107See eg Case C-366/10 Air Transport Association of America and Others (ATAA) [2011] ECR I-0000, onwhich see G De Baere and C Ryngaert, The ECJs Judgment in Air Transport Association of America and theInternational Legal Context of the EUs Climate Change Policy (2013) 18 Eur Foreign Affairs Rev 389-410.108

ATAA, n 107, para 50.109Case 181/73Haegeman[1974] ECR 449, paragraph 5; andATAA, n 107, para 73.110

ATAA, n 107, paras 52-55. See further chapter 6.111See Joined Cases 21/72 to 24/72International Fruit Company and Others[1972] ECR 1219, para 7.112

See Joined Cases C- 120/06 P and C- 121/06 PFIAMM and Others v Council and Commission[2008] ECR

I-

6513, para 110,113Case C- 344/04IATA and ELFAA[2006] ECR I- 403, para 39.114

See Case 12/86Demirel[1987] ECR 3719, para 14.


22/46

22

5.2 The CFSP

5.2.1 Preparation and adoption

Under the ordinary Union method, with only a few exceptions, nothing can happen without an

initiative from the Commission, which as mentioned also has the main responsibility forimplementing measures that may be necessary at Union level. By contrast, the formal

distinction between the preparation and the adoption of measures is not part of the CFSP. Like

with respect to ordinary EU external action, CFSP measures are in the first place to be

implemented by the Member States.115However, where uniform conditions for implementing

legally binding CFSP acts are needed, those acts are to confer implementing powers not on

the Commission, but on the Council.116The Council, its rotating Presidency (held in practice

by each Member State in turn for six-month periods), 117various Council bodies, and now the

High Representative have the lead in implementing adopted measures. The Council therefore

needed to be equipped with an infrastructure specifically designed for the development and

implementation of the CFSP. Moreover, an important and specific feature of the CSDP is that

the European Council has become involved not only in setting general guidelines, but in thedevelopment of a detailed policy framework.

5.2.2 Legal instruments

While the EU Treaty does not provide for a specific and detailed attribution of competence in

the CFSP, it defines the legal instruments that the EU has at its disposal to conduct the CFSP,

and develops a specific set of CFSP decision-making procedures. Article 25 TEU states that

the Union is to conduct the CFSP by

(a) defining the general guidelines;

(b) adopting decisions defining:(i) actions to be undertaken by the Union;

(ii) positions to be taken by the Union; and

(iii) arrangements for the implementation of the decisions referred to in points (i) and

(ii); and by

(c) strengthening systematic cooperation between Member States in the conduct of policy.

Article 24(1) and 31(1) TEU now also explicitly exclude legislative acts from being adopted

within the CFSP.

The possibility for the European Council to adopt common strategies under ex

Article 13(2) TEU has now been replaced by Article 22(1) TEU, which provides for the

European Council to adopt decisions on the strategic interests and objectives of the Union,which are to relate to the CFSP andto other areas of the external action of the Union. In other

words, Article 22(1) TEU has opened up the possibility for strategic decisions on EU external

action in its entirety and not just on the CFSP, thereby remedying the impossibility in that

regard under ex Article 13 TEU, which probably played a large part in the demise of the pre-

Lisbon common strategies.118Nevertheless, despite their potential for contributing to greater

consistency in EU external action, no decision under Article 22(1) TEU has yet been adopted.

115Art 291(1) TFEU.116

Art 291(2) TFEU.117On the Council Presidency, see further chapter 3.

118De Baere, n 7, 114-115.


23/46

23

5.2.3 Decision-making in the Council

There is a marked distinction between the CFSP and ordinary EU external action with regard

to decision-making in the Council. While, pursuant to Article 16(3) TEU, QMV is to be the

rule and unanimity the exception since the entry into force of the Lisbon Treaty, Article 31(1)

TEU reverses that order within the field of the CFSP: decisions under the CFSP are to betaken by the European Council and the Council acting unanimously, except where Chapter 2

of Title V of the TEU (ie the Chapter on the CFSP) provides otherwise.

However, the TEU contains a mechanism to enable a Member State not to take part in a

decision without preventing the other Member States from adopting it by unanimity. Pursuant

to what is sometimes called constructive abstention, when a Member State decides to

abstain in a vote, it has the possibility of qualifying this abstention by making a formal

declaration,119and it will then not be obliged to apply the decision, though it must accept that

the decision binds the Union. The Member State in question must also, in a spirit of mutual

solidarity, refrain from any action likely to conflict with or impede Union action based on the

decision on which it has decided to abstain. As with the sincere cooperation obligation of

Article 4(3) TEU, the loyalty works both ways; the other Member States have to respect theposition of the abstaining Member State. However, differentiation and opting out has its

limits. If the Member States wishing to abstain on a specific matter represent at least one third

of the Member States comprising at least one third of the population of the Union, the

decision cannot be adopted. That makes political and legal sense. Council decisions one

might add, especially with regard to external action should have the support of a substantial

number of the members of the Council, or how can it plausibly be claimed that the Union has

acted.120The mechanism was used, for example, by Cyprus, which abstained on the adoption

of the Joint Action setting up the Rule of Law Mission in Kosovo 121on the grounds that it

would have preferred an explicit UN Security Council authorization.122

By derogation from the unanimity rule in the CFSP, the Council acts by QMV:123

when adopting a decision defining a Union action or position on the basis of a decision of the

European Council relating to the Union's strategic interests and objectives, as referred to in

Article 22(1),

when adopting a decision defining a Union action or position, on a proposal which the High

Representative of the Union for Foreign Affairs and Security Policy has presented following a

specific request from the European Council, made on its own initiative or that of the High

Representative,

when adopting any decision implementing a decision defining a Union action or position,

when appointing a special representative in accordance with Article 33.

The only significant extension124

of QMV in the CFSP is the possibility under the secondindent above. Nevertheless, the default rule of consensus would apply within the European

119Art 31(1), second subpara TEU.

120cf RA Wessel, The European Unions Foreign and Security Policy: A Legal Institutional Perspective (TheHague/Boston/London: Kluwer Law International, 1999) 144.121Council Joint Action 2008/124/CFSP, [2008] OJ L42/92.122

Council Doc. CM 448/08 of 4 February 2008. See M Cremona, Enhanced Cooperation and the EuropeanForeign and Security and Defence Policy in JM Beneyto, J Baquero, B Becerril, M Bolle, M Cremona, S Ehret,V Lpez-Ibor, and J Maillo, Unity and Flexibility in the future of the European Union: the challenge ofenhanced cooperation(Madrid: CEU Ediciones, 2009) 87.123Art 31(2) TEU.124

See,however, thepasserellein Art 31(3) TEU, which authorizes the European Council unanimously to adopta decision stipulating that the Council is to act by a qualified majority in cases other than those referred to in Art31(2) TEU.


24/46

24

Council in this situation.125 The same rationale applies to the other possibilities for QMV,

which are all except for the appointment of a special representative premised on a prior

decision having been taken by unanimity or consensus.

Furthermore, under Article 31(2) TEU, second subparagraph, a Member State has the

option of preventing a vote when it declares that, for vital and stated reasons of national

policy, it intends to oppose the adoption of a decision to be taken by qualified majority. Aninnovation introduced by the Lisbon Treaty is that the High Representative at this point

attempts to avoid referral of the decision to the European Council by searching for a solution

acceptable to the objecting Member State. This is to happen in close consultation with the

Member State involved, and would amount to the High Representative trying his or her best

to broker a unanimous decision in the Council, which would make a referral to the European

Council superfluous.

However, unanimity has not necessarily always formed a serious obstacle to the

development of the CFSP. Indeed, it has often led to decisions based on a wide understan

eu external action

Documents