EU International Relations Law

Panos Koutrakos

• Publisher: Hart Publishing
• Year: 2015
• Print ISBN: 9781849463225
• eBook ISBN: 9781782254898
• Edition: 2
• Topic: Law
• Subtopic: International Law
• Index: Law

This new edition provides a definitive, comprehensive and systematic analysis of the law governing the EU's action in the world. Updated to take into account the Lisbon Treaty and recent case law, the book covers all constitutional aspects of the EU's international action and the procedures for treaty-making. It analyses the relationship between the EU and its Members with emphasis on mixed agreements, and the status of international law in the EU legal order. It explores the links between the EU and international organisations (such as the WTO) and examines the EU's external economic and political relations and its various links with third countries, including its neighbours. It analyses, amongst others, the Common Commercial Policy, sanctions, the Common Foreign and Security Policy, and the Common Security and Defence Policy. This new edition is the most up-to-date work of its kind, examining both the law and practice in a wide range of external policies, placing the law in its political and economic context and exploring the links between the EU's external and internal actions.

Part I

The Regulation of EU International Relations Law

1

The European Union in the World

1. INTRODUCTION

THE CAPACITY OF the European Union to engage with third countries and international organisations has been at the centre of the debates about the EU’s constitutional identity and future that began in the early 2000s. In December 2001, the European Council adopted the Laeken Declaration, which initiated the long and unpredictable process that led to the drafting, negotiation and early death of the Treaty Establishing a Constitution for Europe, followed by the drafting, ratification, adjustment and entry into force of the Lisbon Treaty. The international role of the EU featured prominently in the Declaration, which raised the question:

Does Europe not, now that is finally unified, have a leading role to play in a new world order, that of a power able both to play a stabilising role worldwide and to point the way ahead for many countries and peoples?¹

Throughout the process, which led, ultimately, to the entry into force of the Lisbon Treaty, the international role of the Union never ceased to be one of the core areas of attention for the negotiators. For instance, in the Declaration responding to the negative referendums in France and the Netherlands, European leaders underlined the need for the Union ‘to respond to the challenges of globalisation [and] to safeguard internal and external security’.² After all, the reform of the EU’s institutional and legal framework to which the EU elites aspired was deemed essential to the role of the Union on the world stage and had been articulated in grand terms in the Laeken Declaration.

The Lisbon Treaty, as well as its precursor, was drafted, negotiated and ratified amidst great hopes as to its impact in the area of foreign affairs, and was received with the expression of even greater relief and anticipation. The then President of the Commission, Romano Prodi, on the day of the signing of the Constitutional Treaty, declared: ‘[T]oday, Europe is reaffirming the unique nature of its political organisation in order to respond to the challenges of globalisation, and to promote its values and play its rightful role on the international scene.’³ Launching the Intergovernmental Conference (IGC), which led to the adoption of the Lisbon Treaty, the European Council stated that ‘[i]n order to secure our future as an active player in a rapidly changing world and in the face of ever-growing challenges, we have to maintain and develop the European Union’s capacity to act’.⁴ The European Council claimed that the Lisbon Treaty ‘will bring increased efficiency to our external action’.⁵ In its Opinion for the IGC, which led to the Lisbon Treaty, the European Commission expressed the view that the latter ‘will give Europe a clear voice in relations with our partners worldwide, and sharpen the impact and visibility of our message. … This will mean an EU able to play a more responsive and effective part in global affairs.’⁶ And the Commission President, José Barroso, in addressing the European Parliament, said that, ‘[w]ith the Reform Treaty, Europe will have the conditions and the instruments to shape globalisation’.⁷

Therefore, it was expected that the legal mechanisms set out in primary law would enable the Union to assume a central actor on the world stage. This role is defined by the Union itself with ambition and confidence.

2. THE INTERNATIONAL ROLE OF THE EUROPEAN UNION

The Laeken Declaration stated:

Now that the Cold War is over and we are living in a globalised, yet also highly fragmented world, Europe needs to shoulder its responsibilities in the governance of globalisation. The role it has to play is that of a power resolutely doing battle against all violence, all terror and all fanaticism, but which also does not turn a blind eye to the world’s heartrending injustices. In short, a power wanting to change the course of world affairs in such a way as to benefit not just the rich countries but also the poorest. A power seeking to set globalisation within a moral framework, in other words to anchor it in solidarity and sustainable development.⁸

Two years later, in December 2003, the European Council endorsed the European Security Strategy, drawn up by the then High Representative for the Common Foreign and Security Policy, Javier Solana.⁹ Prepared when the world was still trying to come to terms with the implications of the 9 September 2001 terrorist attacks, this document identifies the main tenets of the Union’s understanding of its internal role. Its starting point is the success of the project of European integration—its first sentence is: ‘Europe has never been so prosperous, so secure nor so free.’¹⁰ Its success on the internal plane should be translated into international action:

The increasing convergence of European interests and the strengthening of mutual solidarity of the EU makes us a more credible and effective actor. Europe should be ready to share in the responsibility for global security and in building a better world.¹¹

Given the wide range of policies in which it engages (economic, social, political, security) and the wide range of global threats, the European Security Strategy suggests that the Union ‘is particularly well equipped to respond to such multi-faceted challenges’.¹² It refers in detail to the need for strengthening an international order based on effective multilateralism, and concludes as follows:

This is a world of new dangers but also of new opportunities. The European Union has the potential to make a major contribution, both in dealing with the threats and in helping realise the opportunities. An active and capable European Union would make an impact on a global scale. In doing so, it would contribute to an effective multilateral system leading to a fairer, safer and more united world.

These documents are striking for both the ambition they convey and the strong sense of global responsibility for the Union that they articulate. This is consistent with the tenor of other policy documents of the period, such as the Report on the Implementation of the European Security Strategy endorsed by the European Council in December 2008¹³ and the European Consensus on Development, drawn up by the Council, the Commission, and the European Parliament, as well as the representatives of the governments of the Member States meeting within the Council.¹⁴ The wide range of policies carried out by the Union and the variety of techniques with which it interacts with the rest of the world feed these expectations. Cremona identifies a number of roles which the Union has assumed: laboratory and model, market player, role generator, stabiliser, and magnet and neighbour.¹⁵ Political scientists have also been attracted to the different functions which the EU assumes as a global actor.¹⁶

3. EXTERNAL ACTION

After Lisbon, the Union’s primary law refers to ‘external action’ rather than ‘external policies’. The use of the word ‘action’ in the singular connotes commonality of purpose and implies coherence and consistency. This was one of the main aims of the drafting of the Constitutional Treaty and the Lisbon Treaty which also intended to enhance the effectiveness of the Union’s international role. The term ‘external action’ is used in the Treaties to describe all policies carried out on the international scene, irrespective of their position in the supranationalism–intergovernmentalism spectrum. Whereas prior to the Lisbon Treaty they were scattered in different parts of primary law, under the current constitutional arrangements all but one of these policies are grouped together in Part V of the Treaty on the Functioning of the European Union (TFEU).

These policies are

• Common Commercial Policy (Articles 206–07 TFEU);

• development cooperation (Articles 208–11 TFEU);

• economic, financial and technical cooperation with third countries (Articles 212–13 TFEU);

• humanitarian aid (Article 214 TFEU);

• restrictive measures (Article 215 TFEU);

• international agreements (Articles 216–19 TFEU).

The only strand of the Union’s external action not included in Part V TFEU is the Common Foreign and Security Policy (CFSP) and the Common Security and Defence Policy (CSDP) which are governed by provisions laid down in Title V TEU. This separation is significant in legal terms and will be explored in Chapters 12 and 13.

The original Treaty of Rome only referred to the Common Commercial Policy and the negotiation and conclusion of association agreements, ie agreements establishing an association between the Community and one or more states or international organisations ‘involving reciprocal rights and obligations, common action and special procedure’ (Article 217 TFEU). The other policies were added in subsequent Treaty amendments.

In addition to the strands of external action grouped together in Title V TFEU, there are TFEU provisions for other forms of international cooperation. In the area of the environment, the Union is endowed with express treaty-making competence (Article 191(4) TFEU). The Union is also competent to establish ‘all appropriate forms of cooperation’ with the organs of the United Nations and its specialised agencies, the Council of Europe, the Organisation for Security and Cooperation in Europe (OSCE), the OECD and to maintain ‘such relations as are appropriate’ with any other international organisation (Article 220(1) TFEU).

In the areas of education (Article 165(3) TFEU), vocational training (Article 166(3) TFEU), culture (Article 167(3) TFEU) and public health (Article 168(3) TFEU), the Union is expressly competent to foster cooperation with third countries and international organisations. In the area of trans-European networks (TENS) (Article 171(3) TFEU), the Union is competent to cooperate with third countries to promote projects of mutual interest and to ensure the interoperability of networks. In the area of research, Article 186 TFEU provides that, in the context of its multiannual framework programme, the Union may provide for cooperation with third countries and international organisations.

These are the areas where the Treaties grant the Union a specific external role. However, they by no means provide the only terrain where the Union may act in the world. In areas where internal policies are carried out, the Union is often required to act externally too. In fact, a considerable part of its external activities fall within this category of implied competence. The legal issues which are raised in these areas are examined below in Chapter 3.

A question central to the Union’s external action is the nature of its competence. In the light of its implications for the powers of both the EU and the Member States, this is a question of utmost significance. Originally, primary law was silent about it and it was left to the Court of Justice to answer it on a case-by-case basis. However, one of the aims of the constitutional process which led to the entry into force of the Lisbon Treaty was the introduction of a clearer division of competence. To that effect, different categories of competence are set out in the TFEU....

Table of contents

• Cover
• Title Page
• Dedication
• Contents
• Table of Cases
• Table of Legislation
• Introduction
• Part I: The Regulation of EU International Relations Law
• Part II: The Management of EU International Relations Law 131
• Part III: EU–International Law
• Part IV: The Practice of EU International Relations Law
• Part V: Political Relations and Interactions Between Policies
• Bibliography
• Acknowledgements
• eCopyright