EU External Relations Law

Text, Cases and Materials

Ramses A Wessel, Joris Larik

• Publisher: Hart Publishing
• Year: 2020
• Print ISBN: 9781509926763
• eBook ISBN: 9781509926756
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

The first edition of this seminal textbook made a significant impact on the teaching of EU external relations law. This new edition retains the hallmarks of that success, while providing a fully revised and updated account of this burgeoning field. It offers a dual perspective, looking at questions from both the EU constitutional law perspective (the principles underpinning EU external action, the EU's powers, and the role of the Court of Justice of the EU); and the international law perspective (the effect of international law in the EU legal order and the position of the EU in international organisations such as the WTO). A number of key substantive policy areas are explored, including trade, security and defence, police and judicial cooperation, the environment, human rights, and development cooperation. Taking a 'text, cases and materials' approach, it allows students to gain a thorough understanding of milestones in the evolution of EU law in this area, their judicial interpretation and scholarly appraisal. Linking these pieces together through the authors' commentary and analysis ensures that students are given the necessary guidance to properly position and digest these materials. Lastly, each chapter concludes with a section entitled 'The Big Picture of EU External Relations Law', which weaves together the diverse and complex materials into a coherent whole and stimulates critical discussion of the topics covered.

1

The European Union as a Global Legal Actor

Central Issues

•This chapter introduces the legal dimension of the EU as an international actor. We define this notion as an entity which interacts with third countries and international organisations (and even its own Member States) in ways which are legally and politically distinguishable from its constitutive Member States. In the global context, this entity thus has a stand-alone identity composed of values, interests, and policies which it seeks to define and promote internationally as its own.

•This chapter shows the importance of legal rules in organising EU international action and indicates that EU external relations law consists of an internal and an external dimension. In its internal dimension it consists of the set of rules which govern the constitutional and institutional legal organisation of this legal entity in pursuit of its interests in the world. The external dimension comprises the rules governing the relationship of the European Union with the international legal order in which it is active.

•In order to study EU external relations law in all its complexity, this Chapter provides an overview of the architecture of EU external relations. It outlines the existence of the European Union as an international organisation with legal personality, which exists legally distinctly from its Member States. It also shows that the European Union is based on the Treaty on European Union and the Treaty on the Functioning of the European Union, which each contain crucial legal principles constituting the body of EU external relations law.

•Finally, in order to carry out its external action, the European Union needs actors to make the decisions and represent the EU at the global stage. These include the EU institutions, but also other key players in the law of EU external relations.

I.The Nature of the European Union as an International Actor

A.An International Organisation or Something Else?

A textbook on EU external relations law is founded on the premise that the European Union can have legal relations with third states (non-Member States) and other international organisations. Hence, it is an international actor with a distinct legal existence akin to the EU Member States or international organisations such as the United Nations. What does it mean to say that the European Union is an international actor?

With the 1957 Rome Treaty having founded the European Economic Community, this new international organisation was explicitly given competence to conduct international trade relations through its Common Commercial Policy and to conclude international agreements through which it could associate itself with third countries. As European integration progressed, the EEC, later the European Community and now the European Union, acquired powers in other areas such as foreign and security policy, environmental policy, energy policy, and so on. Scholars have been struggling with the nature of the European Union as it is clearly different from other international organisations and has features that come close to a (federal) state. Often, the easy way out is to state that the Union is a sui generis international actor which cannot be defined by using any pre-existing terminology.

In this textbook we are primarily concerned with the rules and principles which govern the legal existence and functioning of this international actor. Consequently, we define the EU as an international actor in abstract terms as an entity which interacts with third countries and international organisations (and even its own Member States), in ways which are legally and politically distinguishable from its constitutive Member States. In the global context, this entity thus has a stand-alone identity composed of values, interests, and policies which it seeks to define and promote internationally as its own.¹

The term ‘entity’ may nevertheless not be too helpful to explain the nature of this ‘beast’ and the question emerges as to whether we can see the EU as an international organisation. To lawyers, being an international actor usually means being an international legal actor. This means that, although the European Union is not a state – which has been confirmed by the Court of Justice in its Opinion 2/13² – it is subject to the rules of international law when it wishes to take action on the global stage. International law, however, is still quite traditional. Created as ‘inter-state’ law, it continues to struggle with the presence of non-state actors in the international order. Yet, international organisations have obviously found their place as international legal actors while other fora, networks and actors are also increasingly recognised as legally relevant. It is a truism that the European Union is not a regular international organisation. From the outset, Member States have been prepared to transfer important sovereign powers and pool them at the level of the Community and later the Union. The current EU Treaties again herald a new phase in which the Union’s international actorness in the global legal order will be further developed. This is exactly why it is important to classify the European Union under international law.

C Eckes and RA Wessel, ‘The European Union: An International Perspective’ in T Tridimas and R Schütze (eds) Oxford Principles of European Union Law − Volume 1: The European Union Legal Order (Oxford, Oxford University Press, 2018) 74–102, 81

Most international rules apply to states, some (also) to international organisations and a limited set also to other internationally active entities (such as liberation movements or multinationals). Few would argue that the EU is a state; many would say that it is an international entity sui generis. International law, however, only works when it is applied across the board for certain categories of international actors. Its rationale is to offer clarity and set the conditions for a smooth cooperation between different subjects. At the same time, it is of course possible to create special rules for special entities. The clauses on Regional Economic Integration Organisations (REIOs) in some multilateral agreements are a good example.

The European Treaties are still silent on the international legal status of the Union. They do not give an answer to the classic question of whether the EU is an international organisation or something else. This may be the reason that also textbooks are still uncertain about the legal nature of the Union and seem to have a preference for more political notions. In their leading textbook, Chalmers et al. refer to the EU as ‘amongst other things, a legal system established to deal with a series of contemporary problems and realise a set of goals that individual states felt unable to manage alone.’³ And, the ‘nature of the Union’s international presence’ is related to its international legal personality only, whereas the nature of the entity as such is left open.⁴

In its famous ruling on the Lisbon Treaty, the German Federal Constitutional Court held that the Union was ‘designed as an association of sovereign states (Staatenverbund) to which sovereign powers are transferred’. Yet, the further description by the Court comes close to generally accepted definitions of international organisations: ‘The concept of Verbund covers a close long-term association of states which remain sovereign, an association which exercises public authority on the basis of a treaty, whose fundamental order, however, is subject to the disposal of the Member States alone and in which the peoples of their Member States (ie the citizens of the states) remain the subjects of democratic legitimisation.’⁵

Could the EU be qualified as an international organisation? When it looks like a banana and smells like a banana, it may very well be a banana.⁶ Indeed, many would agree with Curtin and Dekker ‘that the legal system of the European Union is most accurately analysed in terms of the institutional legal concept of an international organization’.⁷ But even this quote reveals how difficult it seems to simply argue that the European Union is an international organisation – albeit a very special one ‘of its own kind’.⁸ Throughout their handbook on the law of international organisations, Schermers and Blokker take the EU along as an international organisation, while noting, of course, the ‘stronger constraints on domestic policies of the member states’ and its ‘more far-reaching objectives’.⁹ The EU is indeed ‘considered special not because of its identity problems but because of the high degree of “constitutional” development, supranational components and the rule of law features within this organization making it look almost like a federation of states …’, as argued by Bengoetxea in one of the few publications focussing on this question.¹⁰

As an international organisation, the European Union is subject to international law in its relations with third states and other international organisations. While international law can also be part of the EU’s internal set of rules (see Chapter 5), this chapter’s focus is on the external dimension. There we would need to start from the presumption that the EU is bound by the international agreements to which it is a party as well as to customary international law. Yet, third states experience that the EU remains special. It may be an international organisation, but the fact that it is exclusively competent to act in certain areas – at the expense of its own Member States – is unprecedented. The same holds true for the rule that EU Member States, in the end, should give priority to EU law in cases of a conflict with international law. Indeed, as underlined by case law, the loyalty towards the Union (Unionstreue in German) is believed to take precedence over international law obligations (see Chapter 5). While for EU Member States (and most EU lawyers) these may be logical consequences of a dynamic division of competences, third states (and most public international lawyers) would remind us of the rule of pacta tertiis nec nocent nec prosunt; third states are not, in principle, bound by the EU Treaties as to them these are agreements between others.¹¹ From a legal perspective, they should not be bothered with a complex division of competences that was part of a deal between the EU and its Member States. Yet, these days, one may expect a certain knowledge of the division of competences on the side of third states, not least because it would be useful to know which actors on the European side are the most appropriate interlocutors.

S Sheth, ‘Angela Merkel Reportedly Had to Explain the “Fundamentals” of EU Trade to Trump 11 times’, Business Insider, 22 April 2017

President Trump did not understand that the US cannot negotiate a trade deal with Germany alone and must deal with the European Union as a bloc, a senior German official told The Times of London.

‘Ten times Trump asked (German chancellor Angela Merkel) if he could negotiate a trade deal with Germany. Every time she replied, “You can’t do a trade deal with Germany, only the EU,”’ the official said.

They continued: ‘On the eleventh refusal, Trump finally got the message, “Oh, we’ll do a deal with Europe then.”’

Merkel reportedly told her cabinet members that Trump had ‘very basic misunderstandings’ on the ‘fundamentals’ of the EU and trade.

B.The EU and its Member States in the International Legal Order

The above discussion points to the core difficulty of EU external relations: who represents the ‘European interest’ on the international scene – the EU or its Member States? How do these actions relate to each other – are they coherent, mutually supportive or perhaps contradictory? The following excerpt serves as a good illustration of the diverse policy areas encompassed by the EU as an international actor. In this Communication, the European Commission provides a succinct summary of the diverse challenges facing the EU in the twenty-first century. Subsequently, it indicates the wide range of policies and instruments the EU has developed in the past six decades in response, and how they could be improved.¹² Notice how the excerpt makes the distinction between ‘Europe’ and ‘EU’. The latter is a reference to the international organisation of which the Commission is an institution, the former is a reference to the EU and its Member States acting together across a vast range of subjects in a challenging global environment.

Communication from the Commission, Europe in the World – Some Practical Proposals for Greater Coherence, Effectiveness and Visibility, Brussels, 8 June 2006, COM(2006) 278 final, 2

Since the end of the Cold War, the world has changed very fast. Europe faces strong economic competition and new threats to its security. While Europe’s mature economies have many strengths, they also suffer from sluggish growth and ageing populations. The economic balance of power has shifted. Countries such as China and India are growing fast and there is increasing competition for access to raw materials, energy resources and markets. Terrorism, the proliferation of weapons of mass destruction, regional conflicts, failed states and organised crime remain as pressing as ever.

Europe has the potential to rise to these challenges and to share in the new opportunities created by emerging markets and globalisation. It has an open society that can absorb people, ideas and new technologies. Successive enlargements over the last three-and-a-half decades have demonstrated the EU’s ability to promote stability and prosperity and the success of this model of regional integration. With a combined population of 470m and a quarter of the world’s income, the EU now accounts for over a fifth of world trade. We provide more than half of development and humanitarian assistance worldwide. European countries make a central contribution to all the important global institutions. The EU model of co-operation and integration is a pole of attraction for countries in our neighbourhood and beyond.

Over the last fifty years the EU has developed a series of external policy instruments, political, economic, commercial and financial, which help us to protect and promote our interests and our values. More recently these instruments have been diversified in areas where member states felt they needed to work in common, and a High Representative for Common Foreign and Security Policy was appointed, to enhance the scope and effectiveness of the EU’s external action. Military instruments have been created to reinforce civil instruments of crisis management.

Increasingly the EU’s internal policies – for example the environment, energy, competition policy, agriculture and fisheries, transport, the fight against terrorism and illegal migration, dealing with global pandemics – impact on international relations...

Table of contents

• Cover
• Title Page
• Preface
• Contents
• Abbreviations
• Table of Cases
• Table of Instruments and Legislation
• 1. The European Union as a Global Legal Actor
• 2. Principles of EU External Action
• 3. EU External Competence
• 4. Instruments of EU External Action
• 5. The EU and International Law
• 6. The EU and International Institutions
• 7. Common Commercial Policy
• 8. EU Development Policy
• 9. Common Foreign, Security and Defence Policy
• 10. EU External Human Rights Policy
• 11. EU External Environmental Policy
• 12. The External Dimension of the Area of Freedom, Security and Justice
• 13. The EU and its Neighbours
• 14. The External Dimension of Joining and Leaving the EU
• Index
• Copyright Page