Chapter 24

EU External Action
Geert De Baere
Contents
1.
2.
3.
4.
5.
6.
7.
8.
9.

Introduction
The foundations of EU external action
The existence of EU external competences
The nature of EU external competences
Decision-making in EU external action
External representation and international agreements
Managing the vertical division of EU external competences
Managing the horizontal division of EU external competences
Conclusion

1. Introduction
In a 2010 article in Time Magazine, Singaporean scholar Kishore Mahbubani did not pull any
punches when describing the EU’s 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 EU’s 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.2 Those relations are both broad in scope and
varied in substance. The goods and services that cross the EU’s external borders, most of the
planes that fly across those borders, much of the pollution that comes from or enters into the
EU, the fish caught by EU fishermen outside EU waters – and many more issues besides – are
regulated by EU external action law.3
                                                            
K Mahbubani, ‘Europe’s Errors’ Time Magazine (8 March 2010).
An earlier attempt can be found in G De Baere, ‘The Basics of EU External Relations Law: An Overview of
the 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 Migration
and Asylum Law and Policy/Dimensions Externes du Droit et de la Politique d’Immigration et d’Asile de l’UE
(Brussels: Bruylant, 2011) 121-174.
3
This chapter uses the term ‘external action’ in the same sense as the Treaties, ie as encompassing all external
policies 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 and
second pillars of the EU before the Lisbon Treaty (see further chapter 2). The chapter occasionally uses the term
‘external relations’ in the same sense when appropriate (the term is also used twice in the Treaties, namely in
1
2

1 
 

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 EU’s 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 Union’s
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 Union’s external action,5 this chapter (with the exception of
a 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 EU’s 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’. 6 The 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 Búrca, ‘EU External Relations: The Governance Mode of
Foreign Policy’ in B Van Vooren, S Blockmans, and J Wouters (eds), The EU’s Role in Global Governance: The
Legal Dimension (Oxford: OUP, 2013) 39-58.
4
See eg with respect to the common commercial (ie external trade) policy (‘CCP’) and the doctrine of implied
external 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.
5
eg 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 and
12.
6
Art 18(4) TEU and Art 3(1) of Council Decision 2010/427/EU of 26 July 2010 establishing the organisation
and functioning of the European External Action Service [2010] L201/30 (‘EEAS Decision’). See further section
5.3 of this chapter.

2 
 

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 Union’s 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 the
Member 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 competences9 and b) it does not have general lawmaking 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 the
measure) that are amenable to judicial review,10 and 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.12 In 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

                                                            
G De Baere, Constitutional Principles of EU External Relations (Oxford: OUP, 2008) 10 and the literature
cited therein.
8
For more on the concept of EU competences, see chapter 5.
9
Further: P Craig, The Lisbon Treaty: Law, Politics, and Treaty Reform (Oxford: OUP, 2010) 156-157.
10
Case C-137/12 Commission v Council (‘Conditional Access Convention’) [2013] ECR I-0000, para 52 and the
case-law cited there.
11
See Case C-301/06 Ireland v Parliament and Council (‘Personal Data Protection’) [2009] ECR-593, para 56.
For more on the concept of legal bases, see chapter 5.
12
Opinion 2/94 Accession 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.
7

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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; and
b) 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 EU’s fundamentally different approach
to these two areas has persisted after Lisbon, despite the introduction of Title V of the TEU
(‘General Provisions on the Union’s External Action and Specific Provisions on the Common
Foreign and Security Policy’) and Part Five of the TFEU (entitled simply ‘The Union’s
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 state’s 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 content of 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 into
a 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 EU’s 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 Government’s 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.

                                                            
A Dashwood, M Dougan, B Rodger, E Spaventa, and D Wyatt, Wyatt and Dashwood’s European Union Law,
(6th edn, Oxford and Portland, OR: Hart Publishing, 2011) 13.
14
See also Art 205 TFEU.
15
C Hill, The Changing Politics of Foreign Policy (London: Palgrave, 2003) 4.
16
HM Government, Review of the Balance of Competences between the United Kingdom and the European
Union: Foreign Policy (London: 2013) 88, para 6.4.
13

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the Lisbon Treaty has subjected the CFSP to the overall constitutional framework of the EU. 209-213. ‘The Relationship Between the Member States and the European Union/European Community’ (2004) 41 CML Rev 357 et seq.18 Moreover. It shall provide the Union with an operational capacity drawing on civilian and military assets. which covers: all areas of foreign policy and all questions relating to the Union’s security. instead it essentially leaves the former second pillar standing in a modified manner. does not imply a complete harmonization of procedures and an integration of all policies under the former Community. The formal abolition of the pillar structure. which merely refers to the progressive framing of a common defence policy that might lead to a common defence. when the European Council. the allocation of competences in the CFSP consists of the general grant of competence in Article 24(1) TEU.2. The Lisbon Treaty therefore establishes a single legal order for the Union. 18 5    . 19 cf A Dashwood. which led to the adoption of the Lisbon Treaty. including the progressive framing of a common defence policy that might lead to a common defence. The CSDP is to include (Article 42(2) TEU): the progressive framing of a common Union defence policy.19 the present Chapter 2 of Title V TEU on the CFSP remains characterized by an absence of any clear let alone detailed list of what precisely it encompasses. however. so decides.20 However. 20 Emphasis added. n 7. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.                                                              17 Art 8 TEU. 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. which should be understood as an aspirational statement of a purely political nature. while the ordinary Union framework under the TFEU is governed by the technique of detailed and specific attribution of competences.4 The CFSP As is clear from Title V TEU (‘General Provisions on the Union’s External Action and Specific Provisions on the Common Foreign and Security Policy’). acting unanimously. but with a more markedly separate sub-order for the CFSP. 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 Union’s institutions are involved in law-making. 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. Instead. The 2007 Intergovernmental Conference. Further: De Baere. 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. with the CFSP and the European Neighbourhood Policy17 as the only substantive policies in the TEU. decided to drop the idea of one single Constitutional Treaty and to keep the TEU and the (renamed) TFEU as two distinct Treaties. This will lead to a common defence.

Article 21 TEU now contains the overall objectives of EU external action. as well as the principles of the Helsinki Final Act[22] and the objectives of the Paris Charter[23].21 Article 5(1) and (2) TEU (see above). including through the progressive abolition of restrictions on international trade. In removing those objectives from the CFSP chapter. independence and integrity. (c) preserve peace. fundamental interests. independence and integrity of the Union in conformity with the principles of the United Nations Charter. n 7. and respect for the principles of the United Nations Charter and international law. but in the first paragraph of then Article 5 TEC. and respect for human rights and fundamental freedoms. — to promote international cooperation. (d) foster the sustainable economic. the principles of equality and solidarity. the universality and indivisibility of human rights and fundamental freedoms. in order to’: (a) safeguard its values. human rights and the principles of international law. Paris 1990. development and enlargement. the rule of law. including those on external borders. respect for human dignity. the rule of law. has now removed all doubt in that regard. Helsinki. Article 21(2) TEU further elaborates these in a rather more comprehensive list of objectives. (b) consolidate and support democracy. Conference on Security and Co-operation in Europe Final Act. in accordance 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. including those relating to external borders. under the previous Treaty framework. security. some doubted whether the principle applied to the CFSP. 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. according to which the Union was to define and implement a CFSP covering all areas of foreign and security policy. however. and to ‘work for a high degree of cooperation in all fields of international relations. Remarkably. the principle of conferral was not explicitly enshrined in the former EU Treaty. the Lisbon Treaty has made the attribution within the CFSP even less detailed and specific than it was before.Does then the principle of conferral actually apply to the CFSP? Given that. 22 6    . Instead. 1975. as introduced by the Lisbon Treaty in Title I (‘Common Provisions’) of the EU Treaty. fundamental interests. with the primary aim of eradicating poverty. and which it seeks to advance in the wider world: democracy. in accordance with the purposes and principles of the United Nations Charter. It provides that the Union is to define and ‘pursue common policies and actions’.                                                              21 See the discussion in De Baere. — to develop and consolidate democracy and the rule of law. 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. 105. with the principles of the Helsinki Final Act and with the aims of the Charter of Paris. prevent conflicts and strengthen international security. the objectives of which were: — to safeguard the common values. 23 Charter of Paris for a New Europe. social and environmental development of developing countries. (e) encourage the integration of all countries into the world economy.

it is important to emphasize that they are objectives common to EU external action in its entirety. and Joined Cases 3. (c). 26 Contrary to the Community. respectively. an international organisation or a national of a third State’. as a legal person. para 3 TEU). paras 17-18. 25 but the general capacity derived from that Article did not constitute an independent legal basis for the adoption of international agreements. That provision stipulates that the Union may conclude an agreement with one or more third countries or international organizations                                                              24 Contrast Art 101 of the Treaty establishing the European Atomic Energy Community (consolidated version) (‘EAEC’) [2012] OJ C327/1. countries and regions confronting natural or man-made disasters. 7    . The Lisbon Treaty has reinforced the contrast between ordinary EU external action and the CFSP in that respect. Nevertheless. 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 Community had the capacity to exercise rights in international legal transactions and enter into obligations over the entire field of its objectives. the pre-Lisbon Union had not been explicitly endowed with legal personality. Article 216(1) TFEU affirms the general capacity of the Union to conclude international agreements. and pre-Lisbon practice tends to suggest that the EU already had legal personality. Detailed and specific attribution of competences is an important aspect of the principle of conferral as it operates under the TFEU. in order to ensure sustainable development. However. and 6/76 Cornelis Kramer and Others(‘Kramer’) [1976] ECR 1279. Furthermore.(f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources. Article 47 TEU explicitly confirms the Union’s legal personality (merged with the legal personality of the former Community: see Art 1.1 The fundamentals The former EC Treaty did not contain a general legal basis for external action.24 Article 281 TEC explicitly conferred legal personality on the Community. While some of the old CFSP objectives re-emerge in that list (notably in (a). paras 13-14. The existence of EU external competences 3. thereby removing any lingering doubt in that regard. and (h) promote an international system based on stronger multilateral cooperation and good global governance. 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’). within the limits of its powers and jurisdiction. Council Decision 2010/53/CFSP of 30 November 2009 concerning the conclusion of the Agreement between Australia and the European Union on the security of classified information [2010] OJ L 26/30. 27 eg Council Decision 2001/352/CFSP concerning the conclusion of the Agreement between the European Union and the Federal Republic of Yugoslavia (FRY) on the activities of the European Union Monitoring Mission (EUMM) [2001] OJ L125/1. (g) assist populations. enter into obligations by concluding agreements or contracts with a third State. 25 cf the identical Art 184 EAEC. 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’. and (h)). 4. 3. which provides: ‘The Community may.27 With the entry into force of the Lisbon Treaty. (b). 26 Case 22/70 Commission v Council (‘ERTA’) [1971] ECR 263.

and second. That provision encompasses three principles. 115. the Lisbon Treaty improved the situation somewhat by introducing Part Five TFEU. arguing that the Community as such should have concluded this agreement and not the Member States. of the European agreement concerning the work of crews of vehicles engaged in international road transport (‘ERTA’ in English or ‘AETR’ in French).28 b) is intended as a codification of the Court of Justice of the EU (‘ECJ’)’s case-law on implied competences. 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. 2011) 122. one of the objectives referred to in the Treaties. EU External Relations Law (2nd edn. the ECJ interpreted the existing Treaty provisions so as to allow the Union to develop a viable external action policy. which will be considered in turn. n 26. or b) where the conclusion of an agreement is ‘necessary in order to achieve. The proceedings concerned an arrangement arrived at. The Commission requested the annulment of the proceedings. which can be considered as a step in the direction of improved overall consistency in external action. 29-31 and 58-59. the (extensive and meandering) ECJ case-law on implied external competences has now been codified in Article 216(1) TFEU. as well as incomplete. 3. 407 (1819). under the auspices of the United Nations Economic Commission for Europe (‘UNECE’). As noted above. While a) encompasses the category of competences for the EU to act externally that have been explicitly provided for in the Treaties. As there were no relevant explicit external competences for the Community. The doctrine of implied competences is a well-known principle of municipal constitutional law and of the law of international institutions. not by the Council as an institution of the then Community. Attempts to address the lack of explicit legal bases have been made predominantly in two ways: 30 first. resulting in what is mostly referred to as ‘implied external competences’. P Eeckhout. which were recognized for the first time in ERTA.S. but by the Member States meeting in the Council. 316. 182. implied competences have been relied on mostly with regard to external action.29 That case concerned Council proceedings of 20 March 1970 regarding the negotiation and conclusion by the Member States of the then Community.. or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope’. See further De Baere. 30 EU external competences can also arise from such general legal bases as Arts 114. and 352 TFEU. n 7. Oxford : OUP. ERTA. 31 eg M’Culloch v The State of Maryland et al. Implied external competences will be examined more closely in the next section. n 7.2 Implied competences The Treaty provisions regulating external action have always been spread over the entire Treaty. Nevertheless.a) where the Treaties so provide. para 17.                                                              Further De Baere. 11-16. 31 Within the EU. The possibility for implied competences within the CFSP will also be briefly considered. and Reparation for Injuries suffered in the Service of the United Nations [1949] ICJ Reports 174. 17 U. explicit legal bases for external competences were added to the Treaties in subsequent amendments. within the framework of the Union’s policies. 28 29 8    .

n 26. Oxford: OUP.. because the situation cannot be remedied by merely disapplying the infringing rule. which necessitates the existence of EU competences to compensate for the Member States’ inability to act. para 3. and throughout all the Netherlands inland waterways and the German inland waterways linked to the Rhine basin. where the conclusion of an agreement is necessary in order to achieve. para 26.34 In contrast to ERTA. 2000) 127–132. But see already Kramer. 36 Opinion 1/76.2. n 12. 33 9    . External Relations (London: Sweet & Maxwell.2 Complementarity The Union: ‘may conclude an agreement with one or more third countries or international organisations .1 below. This codifies the ‘complementarity principle’.. 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. n 7. is likely to affect common rules or alter their scope’. The General Law of E... 37 M Cremona.. Given that vessels from Switzerland traditionally participate in navigation on these waterways.2.. 33 which was spelled out in Opinion 1/76 European laying-up fund for inland waterway vessels. 35 It was therefore necessary to bring Switzerland into the scheme through an international agreement. by elimination of short-term overcapacity of the fleet. In particular. This codifies the ERTA principle: the Member States are not allowed to act internationally in a way that would affect existing EU law. ‘The Attribution of External Relations Competence’ in A Dashwood and C Hillion (eds). it is not entirely clear whether external action should be necessary for the achievement of the objectives of an explicitly granted competence. 2011) 225.. where the conclusion of an agreement . paras 30 and 33. within the framework of the Union’s policies. it was hard to imagine how that objective could be achieved solely by the establishment of autonomous Community common rules.37                                                              32 See section 4. 35 See nevertheless De Baere. or whether the general objectives of EU external action in Article 21 TEU could also give rise to external Union competence on this basis. n 34. Hence the rule that whenever EU law has conferred internal competences on the institutions to attain a specific objective. one of the objectives referred to in the Treaties .1 ERTA The Union: ‘may conclude an agreement with one or more third countries or international organisations .C. 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.’. 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 subjectmatter. 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. The Community’s aim was the rationalization of the economic situation in the inland waterways sector in the Rhine and Moselle basins.32 3. However.2. A Dashwood. 57-58.3. The Evolution of EU Law (2nd edn.36 Internal Union competences are supported by the corresponding external competences only when the latter are truly ‘implicit’ in the former. The resulting EU competence is exclusive pursuant to Article 3(2) TFEU.. The Member States’ competence is thus excluded. ‘External Relations and External Competence of the European Union: The Emergence of an Integrated Policy’ in P Craig and G de Búrca (eds). Opinion 2/94. 34 [1977] ECR 741.

Both the internal and the external aspects of these policies belong to the exclusive competence of the Union.4 The CFSP In any event. or a decision. that is to say. (c) monetary policy for the Member States whose currency is the euro. 39 10    . a directive. (e) common commercial policy.’.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 .2.. 3.. 42 Art 2(2) TFEU. which will not be considered further in the present chapter. the first paragraph of which lists the five explicitly attributed or a priori exclusive competences of the Union: (a) customs union. 40 See also Art 2(3) and (5) TFEU. 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. 41 Art 2(1) TFEU. 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. (b) the establishing of the competition rules necessary for the functioning of the internal market. where the conclusion of an agreement . The nature of EU external competences 4. Three of those categories as listed in Article 2 TFEU are most relevant for the Union’s external action and will be further explored here: 40 exclusive competences. 44 While it attempts to codify the case-law of the ECJ on exclusive                                                              38 Art 288 TFEU. 43 Art 2(4) TFEU. (d) the conservation of marine biological resources under the common fisheries policy.43 The main principles on when the Union is exclusively competent have now been laid down in Article 3 TFEU. including the progressive framing of a CSDP. 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 the EU Treaty permits. That is even more the case with respect to the CFSP. 41 shared competences. In addition. As noted already.3. the categories of EU competences are fully examined in chapter 5. See section 5. 4. is provided for in a legally binding Union act . 42 and the competence to define and implement a CFSP.2. in a regulation. applying the doctrine of implied competences requires caution and restraint...38 That provision will be discussed in its relationship to Article 3(2) TFEU in the next section.. or in so far as its conclusion may affect common rules or alter their scope’.39 Moreover.. 44 Art 3(2) TFEU.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’.2.

even in the absence of any express                                                              In that sense also: Opinion of Advocate General (‘AG’) Kokott in Conditional Access Convention. Case C-472/98 Commission v Luxembourg [2002] ECR I-9741. 46 See. within the shared competences. even if there is no contradiction between those commitments and the common rules. Finland. n 7. see chapter 6. In turn.2 Exclusive external competence on the basis of Article 3(2) TFEU 4.49 The 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. Austria. 45 11    . Sweden. or within an area which is already largely covered by such rules.4. Belgium. However. Commission v Germany. and Craig.2. which follows the logic of the principle of primacy (ie the priority of EU law over Member States’ law). a number of further sub-categories can be distinguished: the shared competences that follow the basic rule. 50 See eg Commission v Denmark. Case C-471/98 Commission v Belgium [2002] ECR I-9681. paras 120-121.competences. n 10. n 7. All these form the subject of section 4.1 ERTA exclusivity 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’. The ECJ confirmed its approach in the 2002 Open Skies judgments in Case C-523/04 Commission v Netherlands [2007] ECR I-3267. 201–12. n 49. 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. Case C-469/98 Commission v Finland [2002] ECR I-9627. shared competences on the basis of minimum standards. n 9. it is important to understand that the EU’s competence should be presumed to be non-exclusive. 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. 431-433. 48 De Baere.50 The ECJ held that if the Union has achieved complete harmonization in a given area. and Germany. Case C-370/12 Pringle [2012] ECR I-0000. 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.2. points 111-113. That eventuality is called ‘the ERTAdoctrine’ or ‘ERTA exclusivity’. 47 but imposes greater strictures on the international actions of the Member States than primacy does internally. to that effect. 71-72. Case C-467/98 Commission v Denmark [2002] ECR I-9519. unless there are clear indications to the contrary. Case C-476/98 Commission v Germany [2002] ECR I-9855. The ECJ’s existing case-law on the nature of EU external competences will therefore need to be taken into account. 4. That reflects the possibility for an EU external competence to become exclusive through the exercise of an EU internal competence. and parallel competences. Case C-468/98 Commission v Sweden [2002] ECR I-9575. see De Baere. As to whether the principle of primacy applies to the CFSP. 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. Denmark. The coordination by the Union of Member States competences when EU competences are shared should also be examined in that connection. para 108.46 Within the category of non-exclusive competences. Case C-475/98 Commission v Austria [2002] ECR I-9797. para 82. it acquires an exclusive external competence in that area. n 49. 47 For more on the concept of primacy. Luxembourg.48 This manner of acquiring exclusive external competences was recognized for the first time by the ECJ in the ERTA case and further refined inter alia in the Open Skies cases. 49 Case C-466/98 Commission v United Kingdom [2002] ECR I-9427. a distinction should be made between shared competences on the one hand and CFSP competences on the other hand.

2. The principles and the complexity involved in their application can be illustrated by looking at the situation in Open Skies. n 49.51 Both explicit and implied external competences can become exclusive through the exercise by the Union of its competences. where they offer for use or use a computerised reservation systems (‘CRS’) in Community territory. para 110. the ECJ held that                                                              Commission v Denmark. As Advocate General Tizzano put it in his Opinion in Open Skies: 56 I must point out. 4. 57 cf Art 289(3) TFEU. 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. 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. n 49. Commission v Denmark. 53 ibid. 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. 54 Finally. however. para 106. Commission v Germany. with the result that the Community had exclusive competence to conclude agreements in that area with non-member countries. In Opinion 1/94 GATS and TRIPS. There. paras 102-103. As a consequence. 52 However. paras 91-92. 56 Opinion of Tizzano AG in Open Skies. 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. 55 ibid.provision authorizing its institutions to negotiate with non-Member States. 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. para 84. 51 52 12    . n 49. n 49. para 98. to air carriers of non-member countries. 54 ibid. 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. point 77. This is so because the common rules thus adopted could be affected within the meaning of the ERTA principle if the Member States retained freedom to negotiate with non-Member States. common rules for the allocation of slots at Community airports applied. In other words. 57 The Lisbon Treaty has thereby codified the ECJ’s case-law to that effect. subject to reciprocity. 53 Relevant Community legislation also applied to nationals of non-member countries. the Court held that the relevant Community legislation did not govern the granting of traffic rights on intra-Community routes to nonCommunity carriers nor operating licences of non-Community air carriers which operated within the then Community. what is required instead is to specify in detail the aspects of the Community legislation which could be prejudiced by the agreements.2 Exclusivity on the basis of a legislative act Article 3(2) TFEU provides that the Union will have exclusive competence for the conclusion of an international agreement ‘when its conclusion is provided for in a legislative act of the Union’. 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. Community rules had indirectly but definitely.

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. 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. it acquires exclusive external competence in the spheres covered by those acts. the Union shall have competence to carry out activities and conduct a common policy. As mentioned above. the exercise of that competence shall not result in Member States being prevented from exercising theirs. in particular to define and implement programmes. Furthermore. In the areas of development cooperation and humanitarian aid. 59 Perhaps the distinction in wording was introduced to make it clear that this principle cannot give rise to an exclusive competence within the CFSP. The Court disagreed. Commission v Germany. the Union acquires exclusive competence to conclude that agreement. however. whereby the Union cannot never prevent the Member States from acting (and vice versa): 3. the Union shall have competence to carry out activities.4.1). through internal Community rules.[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.3 Exclusivity on the basis of necessity for the exercise of internal competence Article 3(2) TFEU provides that the Union will have exclusive competence for the conclusion of an international agreement when this is ‘necessary to enable the Union to exercise its internal competence’.2. 4. the EC Treaty equally did not prevent the institutions from prescribing the                                                              [1994] ECR I-5267. which ostensibly provide for a type of shared competence without ‘pre-emption’ (see below section 4. however. technological development and space. 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’. If that same possibility is provided for in a legislative act. the EU acquires competence to conclude that agreement on the basis of Article 216(1) TFEU. Article 4(3) and (4) TFEU. para 109. TEU and Art 31(1) TEU exclude the adoption of legislative acts. inter alia. That statement does appear to merit some nuance in the light of. It held that the EC Treaty did not prevent the institutions from arranging. given that Art 24(1). para 83. second subpara. for example. In the areas of research. the exercise of that competence shall not result in Member States being prevented from exercising theirs. However. argued that such a situation was at hand in Open Skies. That codifies the ECJ’s 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. n 49. para 95. 58 13    .58 The ECJ seemed to hold that this automatically implied exclusive competence for the Union. see also Commission v Denmark. n 49. 4. The Commission had. concerted action in relation to the USA.

on the external front. 64 Compare Eeckhout. para 123. para 32. para 115. the Court held. including inter alia what is to be understood under ‘necessary’. 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 caselaw. n 28. The ECJ will presumably rely on its pre-codification case-law to interpret the text of those two provisions. by the fact that in 1992 the Council was able to adopt a set of measures achieving the internal market in air transport services without feeling the need to enter into any international agreements with the USA.. within the framework of the Union’s policies. especially with regard to the need for an ‘inextricable link’ in order for ‘necessity’ to give rise to an exclusive Union competence. The Union acquires a non-exclusive external competence in those situations.60 This was confirmed. in casu no question of an internal competence that can only be effectively exercised at the same time as the corresponding external competence. arguing that exclusive implied competences should in fact be confined to the ERTA doctrine.65                                                              Commission v Germany.63 though it is difficult to come up with an example of a situation that would unambiguously fall within that category.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. there may be the rare factual constellations in which the objectives of EU competences could not possibly be achieved without including third countries. 62 [1995] ECR I-521. 65 cf De Baere and Koutrakos. 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 and commercial matters [2006] ECR I-1145. n 4. therefore. pursuant to Article 216(1) TFEU. 61 Given that the Court appears to have regarded Opinion 1/76 (see section 3. para 85. 257 and 273.]’.] where the conclusion of an agreement is necessary in order to achieve. n 49. and that would render such a competence exclusive in accordance with the Court’s reading of Opinion 1/76. the question arises as to whether and how this blurring of the two issues found its way into the TFEU. through international agreements. n 49.64 At any rate. This is what Opinion 2/92 Third Revised Decision of the OECD on national treatment seemed to say62 and appears to correspond to Article 216(1) TFEU. paras 86–89. but which could nonetheless arguably have been sufficiently attained with internal rules only..2 above) as authority both for the existence and for the exclusive nature of implied external competence.. the optimal use of which presupposes an external complement. n 60. internal policy goals. 63 The ECJ omitted a reference to the need for such an inextricable link in Opinion 1/03. one of the objectives referred to in the Treaties [. there exist situations in which the Union wishes to further. 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. how can Article 3(2) TFEU in this respect be distinguished from the fact that the Union ‘may conclude an agreement with one or more third countries or international organisations [. In particular. 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. into the binding legal framework regulating the situation. 60 14    . 118. 61 Commission v Germany. neither Article 216(1) TFEU nor Article 3(2) TFEU sufficiently reflect the complexity of the case-law on which they are based. On the one hand. The Union would acquire exclusive implied external competences in case of such an inextricable link. On the other hand.

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. ‘no longer have the right. n 60. the Member States. b) second. enshrining the principle of loyalty and sincere cooperation. 15    .67 The ECJ also referred to what is now Article 4(3) TEU. the Member States. para 32.69 In other words. They are legally obliged not to exercise their competences to enter into certain international agreements. n 26. 71 See Opinion 1/03. 67 ERTA. n 26. There are three main reasons for this: a) first. only the Union may legislate and adopt legally binding acts. acting individually or even collectively. see further chapter 5. 68 Ibid. whether acting individually or collectively. This explains why even if the intended agreement would be consistent with EU law. Facilities and Transports that when external Union competence is exclusive.71 and c) third. further: Opinion 1/75 Draft Understanding on a Local Cost Standard drawn up under the auspices of the OECD [1975] ECR 1355. the desire to avoid adverse consequences for the Member States’ international liability in case they conclude an international agreement incompatible with EU law. On that principle. as the ECJ put it in ERTA. which are really two sides of the same coin:66 a) First.4. TEU. first subpara. para 17. 1364. to undertake obligations with third countries’.68 b) Second. when the external competence in a certain area is exclusive. para 22. the Member                                                              66 Exclusivity also implies the inapplicability of the principle of subsidiarity: Art 5(3). thus ‘freezing’ Union law in the state it is in at the moment the agreement is concluded.70 Exclusivity imposes an obligation on the Member States not to enter into any international agreements that could affect the Union’s exclusive competences. the ECJ pointed out in Ruling 1/78 Draft IAEA Convention on the Physical Protection of Nuclear Materials. paras 122–133. 69 [1978] ECR 2151. the Member States must not attempt to constrain the Union’s exercise of its exclusive competence and must cooperate loyally with it in order to facilitate such an exercise. 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. 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. Specifically with respect to external action.3 Consequences of exclusive competence Article 2(1) TFEU provides that when the Treaties confer on the Union exclusive competence in a specific area.1 and 5.2). paras 44–45. 70 cf ibid. paras 33 and 22. it follows from the ECJ’s case-law that the exclusivity of the Union’s external competence has two main consequences. In other words. are no longer able to impose on the [Union] obligations which impose conditions on the exercise of prerogatives which thenceforth belong to the [Union] and which therefore no longer fall within the field of national sovereignty. 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 States in sections 5. Kramer. it limits the possibility for law-making by the Member States.

there will be no final text of the agreement at that point in time. recognition. or has decided to cease exercising. and Ramopoulos. and enforcement of judgments and decisions in matrimonial matters. and matters relating to maintenance obligations.74 Examples 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. 86. n 28. as provided for by Articles 2(2) and 4 TFEU (sometimes referred to as ‘concurrent’ competences).States are not allowed to conclude it if it falls under exclusive Union competences. n 7. matters of parental responsibility. 74 See further De Baere. Given that. 162. 72 Moreover. 77 See Declaration 18 in relation to the delimitation of competences [2012] OJ C326/346. Eeckhout. Article 2(2) TFEU therefore ties Member States’ competences to the evolving exercise of EU competence over time:78                                                              See also the Opinion of Tizzano AG in Open Skies.4. Hoffmeister. 59-61. See Kuijper. 76 Case C-45/07 Commission v Greece [2009] ECR I-701. the division of competences must equally be complied with. See Eeckhout. in the nature of things. and Member States are not to make unilateral proposals. as it needs to be established who will negotiate. it is important to understand that competence issues in principle need to be resolved before the intended international agreement is even negotiated. points 71-74. and the law applicable to matters relating to maintenance obligations.4 Non-exclusive competences 4. can be exercised by the Member States to the extent that the Union has not exercised. 76 4. This is evident from the text of Article 2(1) TFEU. Exclusive Union competences simply require them not to act autonomously. 75 A particular issue arises when an agenda item in an international organization relates to a subject falling within exclusive Union competence. Wouters. 72 73 16    . EU law can therefore authorize the Member States to act jointly on the international plane even within exclusive external Union competences. n 49. the Member States retain capacity to conduct international relations both under national and international law. De Baere. 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. even for non-binding acts. In such situations. 78 The 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 C326/307.73 However. 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.1 Shared competences The basic rule ‘Shared competences’. 222-225. 75 Council Regulation (EC) No 664/2009 [2009] OJ L200/46. n 28. n 5.77 its competence. the resolution of the competence question cannot depend on the existence of an actual conflict between the agreement and the EU common rules. Compare Regulation (EC) No 662/2009 of the European Parliament and of the Council of 13 July 2009 establishing a procedure for the negotiation and conclusion of agreements between Member States and third countries on particular matters concerning the law applicable to contractual and non-contractual obligations [2009] OJ L200/25. but where the Union itself has not managed to become a member of the organization.

by analogy with US constitutional doctrine. the Union and the Member States may legislate and adopt legally binding acts in that area. G De Baere. Apart from the parallel competences discussed further in this section. even if the [Union] rules and the provisions of the agreement cover the same area. mainly because the Union can only lay down minimum standards. 80 Opinion 1/03. Federalism in the European Union (Oxford and Portland.                                                              79 See the discussion of the pre-emption doctrine in G De Baere and K Gutman. If an international agreement lays down an absolute standard. The ECJ further clarified the impact of minimum standards in Case C-246/07 Commission v Sweden (‘PFOS’) [2010] ECR I-3317.When the Treaties confer on the Union a competence shared with the Member States in a specific area. Nevertheless. a number of shared competences preclude the EU from fully harmonizing the law in a certain area. Such measures must be compatible with the Treaties. the ECJ has not adopted this term. 79 However. 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. the Opinion of Ruiz-Jarabo Colomer AG in Case C-478/07 Budĕjovický Budvar [2009] ECR I-7721. para 102. They shall be notified to the Commission. the term has on occasion been used by an Advocate General: see. External environmental competences and the impact of the fact that they are mostly based on minimum requirements will be further explored in this chapter’s case study. The effect of this is often referred to as ‘occupying the field’ or. As will be illustrated there. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. a conflict may arise with inevitable consequences for the international responsibility of the Union. ‘pre-emption’. 17    . However.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. para 18. The concept of internal Union minimum standards thus involves the Union harmonizing a certain policy area on the basis of minimum requirements. OR: Hart Publishing. which determines that the substantive environmental measures adopted on the basis of Article 192 TFEU are to be only minimum measures: The protective measures adopted pursuant to Article 192 shall not prevent any Member State from maintaining or introducing more stringent protective measures. and there is no academic consensus on its usage. eg. paras 123 and 127. the mechanism is not as generally applicable as it may seem. Minimum standards A prominent example is Article 193 TFEU. 2012) 157-165. n 60. while leaving the Member States free to adopt more stringent measures. and the Union subsequently decides to raise its minimum standards above the absolute standard of the agreement. See also Opinion 2/91 ILO Convention No 170 [1993] ECR I-1061. point 93. and S Sottiaux (eds). As the ECJ held in Opinion 1/03. the principle of sincere cooperation in Article 4(3) TEU may nevertheless restrict Member State action. See further below. ‘Federalism and International Relations in the European Union and the United States: A Comparative Outlook’ in E Cloots. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence. even if they are acting within their own sphere of competence.

83 The Agreement was provisionally applied from 30 March 2008 for all EU Member States. meeting within the Council. airlines. concerted action in relation to the United States of America. 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 EU’s exercise of its competence. Regulation (EC) No 847/2004. However. are to cooperate with third countries and with the competent international organizations. which states that the Union and the Member States. and communities on both sides of the Atlantic not just between the initial parties. Following the judgments in Open Skies. 85 Decision 2010/465/EU of the Council and the Representatives of the Governments of the Member States of the European Union.82 Furthermore. [2010] OJ L223/1. meeting within the Council. 86 See Art 9(1) of the Protocol to the EU-US Air Transport Agreement. Furthermore. 84 See Art 25(1) of the EU-US Air Transport Agreement. Pursuant to Article 209(2) TFEU. [2004] OJ L157/7. but also by extending the Agreement to include third countries. in Open Skies. 84 and amended by a Protocol.87 a call to which Norway and                                                              81 See also Art 191(4) TFEU (environmental policy) and Art 219(4) TFEU (monetary policy). so as to mitigate any discrimination or distortions of competition which might result from the implementation of the commitments entered into by certain Member States with the United States of America under open skies agreements.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. in the common rules laid down by them. 82 18    . 87 Art 18(5) of the EU-US Air Transport Agreement. [2007] OJ L134/1. 86 The Agreement aims to open access to markets and to maximize benefits for consumers. For example. 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. 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. 83 Decision 2007/339/EC of the Council and the Representatives of the Governments of the Member States of the European Union. thus creating parallel competences in those areas. 85 signed and provisionally applied on 24 June 2010. the arrangements for Union cooperation may be the subject of agreements between the Union and the third parties concerned. labour. 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’. or to prevent them prescribing the approach to be taken by the Member States in their external dealings. each within their respective spheres of competence. the Court countered the Commission’s 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. on 30 April 2007. Article 4(4) TFEU provides for the exercise of the Union’s competence in the areas of development cooperation and humanitarian aid not to result in Member States being prevented from exercising theirs. An important example of the latter category 81 is Article 211 TFEU on development cooperation.

annexed to the Lisbon Final Act.90 it appears highly unlikely that the Member States had the intention of subjecting the CFSP to the corollary of shared competences. the European Economic and Social Committee and the Committee of the Regions: The EU's External Aviation Policy . 93 Art 17(2) TEU. the EU and the Member States have jointly agreed a number of comprehensive treaties with third states on aviation issues. 95 Arts 289(1) and 294 TFEU. [2011] OJ L283/1. 90 [2012] OJ C326/345. as was done with regard to research. see section 7. These two declarations emphasize that the provisions on the CFSP in the TEU do not ‘affect’ the responsibilities.94 c) involvement of the European Parliament with varying intensity depending on the decisionmaking procedure. 94 Art 16(3) TEU. if the CFSP was intended to be a ‘shared competence’. including the liberalization of traffic rights.96                                                              88 Decision 2011/708/EU of the Council and of the Representatives of the Governments of the Member States of the European Union. 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. 91 Moreover. 96 Art 19(1) TEU. the existing legal basis.93 b) qualified majority voting (‘QMV’) in the Council. meeting within the Council of 16 June 2011. 89 See the Annex to the Communication from the Commission to the European Parliament.Addressing Future Challenges COM(2012) 556 final. Decision-making in EU external action 5.1 below). space.88 Besides that. 182. 92 This chapter uses the term ‘ordinary Union method’ for what formerly was usually referred to as the ‘Community method’.4.2 The CFSP Finally. 4.89 Due to the shared competence on these issues. in view of Declarations Nos 13 and 14. 19    . 91 Art 2(2) TFEU. the Council. n 9. 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’. but since Lisbon mostly through the ordinary legislative procedure. and the powers of the Member States for the formulation and conduct of their foreign policy. paras 26-27. cf Craig. these treaties are ‘mixed agreements’ (ie agreements to which both the EU and the Member States are parties.1 The ordinary Union method The ordinary Union method92 of decision-making is characterized by a) the central role of the Commission in formulating proposals. technological development. for example. which applies.95 and d) the role of the ECJ in ensuring judicial accountability.Iceland have responded. to the common agricultural policy: eg Case C-373/11 Panellinios Syndesmos Viomichanion Metapoiisis Kapnou [2013] ECR I-0000. development cooperation and humanitarian aid in Article 4(3) and (4) TFEU? 5. 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’.

97 However. K Raube. 104 Art 9 EEAS Decision. 73-74 and 119-121. The Lisbon Treaty has changed the role of the European Parliament in EU external action in quite important ways. especially with regard to the ordinary EU external action (see further section 6. Further on the EEAS-Commission relationship: J Wouters.2 below). a couple of particular points as regards its operation within the field of external action need to be made. the Union legal instruments are identical in internal and external policies. which implements the Union budget 103 and retains the authority over the operational credits. an all-important point of discussion regarding the ordinary Union method is the procedure followed by the Council for adopting decisions. n 7. 100 Art 291(1) TFEU.102 the Commission actively oversees implementation. would seem to point to there being less need to have recourse to legal instruments outside the scope of that Article. on the Council. those acts are to confer implementing powers on the Commission. see chapter 3 (as regards the political institutions) and chapter 10 (as regards the Court). the CCP is now in principle subject to full parliamentary control. As regards the CCP. the EEAS has a particular role in the programming. Because Article 218(6)(a)(v) TFEU now provides for the Parliament’s consent to be necessary for agreements covering fields to which the ordinary legislative procedure applies. mostly through QMV.101 In the field of development cooperation. Challenges and Opportunities (Brussels: European Parliament. The options range from unanimity to several forms of majority voting.104                                                              97 On this issue. as far as autonomous acts are concerned. Second. see chapter 4. Third. 101 Art 291(2) TFEU. B Van Vooren. However. and the EEAS is to contribute to the programming and management cycle for such instruments. For example. or. both as regards autonomous measures and international agreements.99 Fourth. but the management of the Union’s external cooperation programmes remains under the responsibility of the Commission. or in programmes such as under the European Neighbourhood and Partnership Instrument. in the Union’s largest and most successful area of external action. That said. First. The fact that decisions not specifying to whom they are addressed. T Ramopoulos. G De Baere. is still smaller than with regard to internal Union policies. 102 Regulation (EC) No 1638/2006 of the European Parliament and of the Council. The Organisation and Functioning of the European External Action Service: Achievements. T Van den Sanden. which formerly fell outside the scope of ex Article 249 TEC and were therefore sui generis. 99 eg Art 207(4) TFEU. In ordinary EU external action. in the absence of specific provisions to the contrary. Policy Department. [2006] OJ L310/1. Article 207(2) TFEU now provides for the ordinary legislative procedure to apply to measures defining the framework for its implementation. if uniform conditions for implementing legally binding Union acts are required at the Union level. to be implemented by the Member States. for example.This is not the place for an exhaustive analysis of the various aspects of the ordinary Union method. the Commission needs to coordinate in that regard with the High Representative. On Council voting rules generally.98 are now given an explicit legal basis in the fourth paragraph of Article 288 TFEU. See De Baere. in duly justified specific cases. J Odermatt. the European Parliament had no formal role in the internal decision-making procedure. 2013) 4657 (‘EP EEAS Study’). while larger than in the CFSP (see section 5. 98 20    .2 below). the role of the European Parliament in the Union’s ordinary external action. 103 Art 317 TFEU. Y Tanghe. Directorate-General for External Policies of the Union. the common commercial (ie external trade) policy (‘CCP’). This was even more the case before the entry into force of the Lisbon Treaty. Union measures are.100 with due regard to the principle of sincere cooperation in Article 4(3) TEU. Directorate B.

108 ATAA. 221.113 ie they contain a clear and precise obligation that is not subject. the EU must be bound by those rules. the agreement envisaged may not enter into force unless it is amended or the Treaties are revised. 213 U. the Court ruled that the then Community could not accede to the European Convention on Human Rights (‘ECHR’)105 without amendment of the Treaties. 109 Case 181/73 Haegeman [1974] ECR 449. in Opinion 2/94.112 third. para 7. para 73. 111 See Joined Cases 21/72 to 24/72 International Fruit Company and Others [1972] ECR 1219. as laid down in Article 218(11) TFEU: A Member State. 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 Court has played a crucial role in the development of Union external action through its case-law and its advisory opinions. The Union cannot afford to conclude an agreement with third countries that will later be found to be infringing the Treaties. on which see G De Baere and C Ryngaert. The most significant contrast with respect to the role of the Court between internal and external matters. as regards their interpretation and the validity of the decisions to conclude them on the EU’s behalf. and ATAA. 112 See Joined Cases C-120/06 P and C-121/06 P FIAMM and Others v Council and Commission [2008] ECR I-6513.Finally. para 39. 21    . 114 See Case 12/86 Demirel [1987] ECR 3719. the Court’s normal jurisdiction applies to treaties concluded by the EU. See further chapter 6.T. paragraph 5. n 107. ‘The ECJ’s Judgment in Air Transport Association of America and the International Legal Context of the EU’s Climate Change Policy’ (2013) 18 Eur Foreign Affairs Rev 389-410.109 The 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:110 First. paras 52-55. to be unconditional and sufficiently precise. in its implementation or effects. There is no similar procedure for determining in advance whether an internal proposal is in accordance with 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. para 14.114                                                              105 Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950. pending. Where the opinion of the Court is adverse. 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. 107 See eg Case C-366/10 Air Transport Association of America and Others (‘ATAA’) [2011] ECR I-0000.111 second. para 110. the treaty provisions relied upon for the purpose of examining the validity of the EU act in question appear. For example. apart from its generally more circumspect approach to the latter. n 107.106 Moreover. and the Court of Justice has been asked whether this agreement is compatible with EU law: Opinion 2/13 [2013] OJ C260/19. Such agreements prevail over EU acts. 110 ATAA. is the specific procedure for a preliminary opinion. to the adoption of any subsequent measure.N.S. the European Parliament. See further chapter 9. 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.108 and their provisions form an integral part of the EU legal order as from their entry into force. 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’. n 107. 113 Case C-344/04 IATA and ELFAA [2006] ECR I-403. as regards their content. para 50. 106 An agreement on the EU’s accession to the ECHR was reached in April 2013.

but in the development of a detailed policy framework.115 However. Art 291(2) TFEU. 118 De Baere. thereby remedying the impossibility in that regard under ex Article 13 TEU. and (iii) arrangements for the implementation of the decisions referred to in points (i) and (ii). n 7. and develops a specific set of CFSP decision-making procedures. and now the High Representative have the lead in implementing adopted measures. Article 25 TEU states that the Union is to conduct the CFSP by (a) defining the general guidelines.                                                              115 Art 291(1) TFEU. an important and specific feature of the CSDP is that the European Council has become involved not only in setting general guidelines. By contrast. but on the Council. Like with respect to ordinary EU external action. see further chapter 3.1 Preparation and adoption Under the ordinary Union method. the formal distinction between the preparation and the adoption of measures is not part of 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. CFSP measures are in the first place to be implemented by the Member States. 117 various Council bodies. 5. which as mentioned also has the main responsibility for implementing measures that may be necessary at Union level. (b) adopting decisions defining: (i) actions to be undertaken by the Union. Moreover. which probably played a large part in the demise of the preLisbon common strategies.116 The Council.2.2. those acts are to confer implementing powers not on the Commission. 117 On the Council Presidency. its rotating Presidency (held in practice by each Member State in turn for six-month periods). Article 24(1) and 31(1) TEU now also explicitly exclude legislative acts from being adopted within the CFSP. where uniform conditions for implementing legally binding CFSP acts are needed. it defines the legal instruments that the EU has at its disposal to conduct the CFSP. no decision under Article 22(1) TEU has yet been adopted. In other words. which provides for the European Council to adopt decisions ‘on the strategic interests and objectives of the Union’.2 The CFSP 5. with only a few exceptions. 116 22    .118 Nevertheless. which are to relate to the CFSP and to other areas of the external action of the Union.5. 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. 114-115.2 Legal instruments While the EU Treaty does not provide for a specific and detailed attribution of competence in the CFSP. despite their potential for contributing to greater consistency in EU external action. and by (c) strengthening systematic cooperation between Member States in the conduct of policy. (ii) positions to be taken by the Union. The Council therefore needed to be equipped with an infrastructure specifically designed for the development and implementation of the CFSP. nothing can happen without an initiative from the Commission.

S Ehret. the default rule of consensus would apply within the European                                                              119 Art 31(1). the loyalty works both ways. 124 See.2. Council decisions – one might add. CM 448/08 of 4 February 2008. made on its own initiative or that of the High Representative. as referred to in Article 22(1). Article 31(1) TEU reverses that order within the field of the CFSP: decisions under the CFSP are to be taken by the European Council and the Council acting unanimously. That makes political and legal sense. which authorizes the European Council unanimously to adopt a decision stipulating that the Council is to act by a qualified majority in cases other than those referred to in Art 31(2) TEU. refrain from any action likely to conflict with or impede Union action based on the decision on which it has decided to abstain. by Cyprus. 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. 121 Council Joint Action 2008/124/CFSP. and J Maillo. 2009) 87. ‘Enhanced Cooperation and the European Foreign and Security and Defence Policy’ in JM Beneyto. M Bolle. the passerelle in Art 31(3) TEU. 120 23    . the decision cannot be adopted. 1999) 144. 122 Council Doc. 123 Art 31(2) TEU. While. especially with regard to external action – should have the support of a substantial number of the members of the Council. See M Cremona. Unity and Flexibility in the future of the European Union: the challenge of enhanced cooperation (Madrid: CEU Ediciones.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. Pursuant to what is sometimes called ‘constructive abstention’. — when adopting any decision implementing a decision defining a Union action or position. M Cremona. or how can it plausibly be claimed that the Union has acted. which abstained on the adoption of the Joint Action setting up the Rule of Law Mission in Kosovo121 on the grounds that it would have preferred an explicit UN Security Council authorization. for example. — when appointing a special representative in accordance with Article 33. Nevertheless. however. QMV is to be the rule and unanimity the exception since the entry into force of the Lisbon Treaty. As with the sincere cooperation obligation of Article 4(3) TEU. J Baquero. The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (The Hague/Boston/London: Kluwer Law International. 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 other Member States have to respect the position of the abstaining Member State. However. 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. — when adopting a decision defining a Union action or position. second subpara TEU.5. differentiation and opting out has its limits. ‘in a spirit of mutual solidarity’. The Member State in question must also. B Becerril. cf RA Wessel. 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. it has the possibility of qualifying this abstention by making a formal declaration. However. though it must accept that the decision binds the Union. when a Member State decides to abstain in a vote. V López-Ibor. The only significant extension124 of QMV in the CFSP is the possibility under the second indent above.122 By derogation from the unanimity rule in the CFSP. except where Chapter 2 of Title V of the TEU (ie the Chapter on the CFSP) provides otherwise. [2008] OJ L42/92. pursuant to Article 16(3) TEU.119 and it will then not be obliged to apply the decision.120 The mechanism was used.

129                                                              125 Art 15(4) TEU. 5. 2002) 170. first. Twice a year. 127 Special representatives may be involved in briefing the Parliament. 128 Art 36. Furthermore. An innovation 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. QMV does often lead to decisions being taken more speedily. second indent EU (proposal from the High Representative). and fourth indent TEU.Council in this situation. but it does not automatically lead to better decisions.4 The role of the European Parliament Article 36 TEU sets out a number of basic possibilities for the Parliament’s involvement in the CFSP. ‘for vital and stated reasons of national policy. 126 24    . as described in Article 31(1) TEU. para 2 TEU. ‘basic choices’. which are all except for the appointment of a special representative premised on a prior decision having been taken by unanimity or consensus. n 7. The Parliament can also address questions to the Council or the High Representative or make recommendations to them. E Denza. including the CSDP. and would amount to the High Representative trying his or her best to broker a unanimous decision in the Council. The Intergovernmental Pillars of the European Union (Oxford: OUP. second subparagraph. unanimity has not necessarily always formed a serious obstacle to the development of the CFSP. as exemplified by expressions such as ‘main aspects’.126 In sum. 161-166. it intends to oppose the adoption of a decision to be taken by qualified majority’. which is still the rule. there are three CFSP decision-making procedures available for the Council:  unanimity. under Article 31(2) TEU.  QMV in the less strict version (Article 16(4) TEU): in the case described in Article 31(2). n 104. 127 On the relationship between the High Representative and the EEAS on the one hand and the European Parliament on the other hand. This is to happen ‘in close consultation with the Member State involved’. which would make a referral to the European Council superfluous. third. 129 De Baere. the Parliament is kept at a distance from any particular CFSP measure. and can only exercise influence on the general policy choices. Indeed. it has often led to decisions based on a wide understanding of the issue and of the advantages and the risks to the Union. a Member State has the option of preventing a vote when it declares that.2.125 The same rationale applies to the other possibilities for QMV. The High Representative has to consult the Parliament regularly on ‘the main aspects and the basic choices’ of the CFSP and the CSDP and ‘inform it of how those policies evolve’. She also has to ensure that the views of the European Parliament are ‘duly taken into consideration’. see EP EEAS Study.128 All in all. However.  QMV in the stricter version (Article 238(2) TFEU): in the cases described in Article 31(2). 58-61. and ‘regularly’ is not encouraging for the Parliament’s possibilities for scrutiny. it is required to hold a debate on ‘progress in implementing’ the CFSP. The imprecision in formulating the High Representative’s obligations.

See the interpretation of that latter provision in Case T-509/10 Manufacturing Support & Procurement Kala Naft v Council [2012] ECR II-0000. reviewing the legality of decisions providing for restrictive measures against natural or legal persons. Article 4(3) TEU contains one principle of sincere cooperation for the Union as a whole (see further section 7. 5.3 The High Representative and the European External Action Service With the entry into force of the Lisbon Treaty. two exceptions: the ECJ has jurisdiction 130 a) to monitor compliance with Art 40 TEU.132 In international organizations 133 and at international conferences. brought in accordance with Art 263. The Member States shall work together to enhance and develop their mutual political solidarity. More particularly. paras 32–39. TFEU. There are. as was the case with respect to ex Article 10 TEC in the Community sphere. 131 cf Art 222 TFEU (the ‘solidarity clause’). The Council and the High Representative shall ensure compliance with these principles. fourth para.2. TEU and Art 275.134 5. Article 24(3) TEU still contains the specific principle of loyalty for the CFSP: The Member States shall support the Union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and shall comply with the Union's action in this area. The appeal is currently before the ECJ: Case C-348/12 P Council v Manufacturing Support & Procurement Kala Naft [2012] OJ C287/27.5. the High Representative of the Union for Foreign Affairs and Security Policy. 25    . 132 Arts 28 and 29 TEU.5 The role of the ECJ The role of the ECJ forms perhaps the biggest contrast between the CFSP and the rest of the EU legal order: Articles 24(1) TEU and 275 TFEU simply exclude the Court’s jurisdiction in the CFSP. and compliance with. see section 8 of this chapter below) and b) to rule on proceedings. pending. the decisions defining Union positions and actions adopted pursuant to the CFSP provisions. first para. which concerns the dividing line between the CFSP and other EU competences (on which. 133 See also Art 220 TFEU. TFEU. TEU. as well as in third countries. while at the same time.[ 131] They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations.2 below). the implementation of CFSP legal instruments by the Member States took place against the background of the solidarity principle in ex Article 11(2) TEU. however.6 Implementation Under the pre-Lisbon framework. second para. replaced both the former                                                              130 Art 24(1). 134 See Art 35. Now. currently Baroness Ashton.2. both the diplomatic and consular missions of the Member States and the Union delegations have to cooperate to ensure implementation of. the Member States have certain duties as regards the implementation of decisions defining actions to be undertaken by the Union and decisions defining positions to be taken by the Union. second subpara.

144 Third. it must ‘extend appropriate support and cooperation to the other institutions and bodies of the Union. 140 See EP EEAS Study. ensuring the consistency of the EU’s external action. 145 Art 3(1) EEAS Decision. ‘A Legal Institutional Perspective on the European External Action Service’ (2011) 48 CML Rev 501. 135 The intention is for her to form a bridge between the CFSP and the other elements of the Union’s external action. the diplomatic services of the Member States as well as the General Secretariat of the Council and the services of the Commission. ‘separate from the General Secretariat of the Council and from the Commission’ and ‘with the legal capacity necessary to perform its tasks and attain its objectives’. The latter capacity not only includes ‘responsibilities incumbent on [the Commission] in external relations’ but also ‘coordinating other aspects of the Union’s external action’. See also section 2 above. 139 See B Van Vooren. second para. cf Art 21(3). who ‘at his level and in that capacity’. The EEAS was established by a Council decision as a ‘functionally autonomous body’ of the EU. and the Commission in the exercise of their respective functions in the area of external relations’. presiding over the Foreign Affairs Council142 and acting as Vice-President of the Commission. is to ensure the external representation of the Union on issues concerning its CFSP. 141 Art 2(1) EEAS Decision. 26    . 138 This indeterminate status is the result of a compromise between those wanting the EEAS to be an essentially intergovernmental body close to or part of the Council and those preferring it to be close to or part of the Commission.140 First. the EEAS is to ‘support. and work in cooperation with. it is to ‘elaborate the Union's external action on the basis of strategic guidelines laid down by the European Council and ensure that the Union's action is consistent’.High Representative for the CFSP and the Commissioner for external relations. Pursuant to Art 16(6). 136 Art 18(4) TEU. The EEAS was therefore set up as a ‘sui generis’ body ‘equidistant’ from the Council and the Commission. which is why one of her core tasks is to ‘ensure the consistency of the Union's external action’. currently Mr. which is what on the whole appears to happen in practice. 142 ie the configuration of the Council of Ministers where EU external action is discussed. the High Representative has to share the international scene with the President of the European Council. n 104. in particular to the European                                                              135 See Art 18 TEU. 136 However. 144 Art 2(2) EEAS Decision. see chapter 3.145 Fourth. third para TEU. 137 Art 15(6) TEU. TEU. the EEAS is to ‘support the High Representative in fulfilling his/her mandates’. Article 27(3) TEU provides that in fulfilling his mandate. 141 which include conducting the CFSP and CSDP.137 That probably implies that the President of the European Council is to represent the Union at the level of Heads of State and Government.143 Second. which is to ‘work in cooperation with the diplomatic services of the Member States and shall comprise officials from relevant departments of the General Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic services of the Member States’. the High Representative is to be assisted by the EEAS. the EEAS must ‘assist the President of the European Council. in order to ensure consistency between the different areas of the Union’s external action and between those areas and its other policies’. For more on the appointment of the High Representative and her position in the broader institutional context. the President of the Commission. while the High Representative ensures representation at ministerial level. 18. Van Rompuy.139 The inherent structural complexities of the EEAS are evident from the enumeration of its tasks in the Decision establishing the service. without prejudice to the powers of the High Representative. 143 Art 18(4) TEU. 138 Art 1(2) EEAS Decision.

and includes a fragile balancing act vis-à-vis (‘without prejudice to the normal tasks of’) the General Secretariat of the Council and the services of the Commission. Second. this complex set of tasks is determined by reference to other EU external actors. 152 In that respect. which provides that. n 104. Furthermore. are to ‘work in close cooperation and share information with the diplomatic services of the Member States’.Parliament’. 151 EP EEAS Study. 149 Art 221 TFEU. while the Council Presidency represented the Union in other cases. without prejudice to the powers of the High Representative (Article 15(6) TEU).151 6. the Commission represented EU positions concerning the first pillar. EP EEAS Study. a New Era?’ in P Koutrakos (ed. 147 27    . 152 See further E Paasivirta. the logic of the principle of sincere cooperation laid down in Article 4(3) TEU indicates that this cannot be only a one-way street. external representation is ensured by the High Representative (Article 18(2) TEU) and as mentioned above. and by the Commission in other external action matters. that does not mean that the Commission necessarily decides on the content of the position to be represented. the Union delegations. the EEAS must work in cooperation with Member State diplomatic services. 150 Although the reciprocal obligation to share information provided for in the initial draft does not appear in the final text of the Decision.).1 External Representation A distinction must be made between internal EU decision-making on the one hand and external representation on the other hand.147 Adding to this complexity are the numerous cooperative duties listed in Article 3 of the Decision. The European Union's External Relations a year after Lisbon (The Hague: CLEER. with the exception of the CFSP and other cases provided for in the Treaties. External representation and international agreements 6. the EEAS and the services of the Commission are to ‘consult each other on all matters relating to the external action of the Union in the exercise of their respective functions. the Lisbon Treaty removed all explicit references in the Treaties to the role of the Council Presidency in the external representation of the EU. ‘at his level and in that capacity’. 2011) 3947. 149 ie the Union’s diplomatic representations and as such part of the EEAS. in the CFSP. and the EEAS is to ‘take part in the preparatory work and procedures relating to acts to be prepared by the Commission in this area’. Before the entry into force of the Lisbon Treaty. a balance must be found between the policy-making functions of the Council under Article 16 TEU on the one hand and Article 17 TEU on the other hand. the Commission is to ensure the Union’s external representation. 148 Art 3(2) EEAS Decision. by the President of the European Council. and in particular between the institution that decides the policy line and the institution responsible for representing it externally. However. 150 Art 5(9) EEAS Decision. 148 Third. 18-19. 18. ‘The EU's External Representation after Lisbon: New Rule. n 104. While the Lisbon Treaty thus leaves the Council Presidency without a formal role in the external representation of the Union. mostly pertaining to the CFSP. As will be illustrated in the case study below. the Member States retain their sovereignty to conduct                                                              146 Art 3(4) EEAS Decision.146 With the exception of the CFSP/CSDP. The new Treaty rules (Articles 17 and 27(2) TEU) set a clear framework: the external representation of the EU is ensured by the High Representative in the CFSP. except on matters covered by CSDP’. First.

1 Negotiation As under ex Article 300 TEC.2.their own foreign relations. agreements to which the Union is a party may include a dispute settlement system. Article 218 TFEU introduced one single procedure for negotiating and concluding international agreements over the entire field of Union competences. assisted by the Commission if necessary. to commence negotiations. in practice these stages are not always as clearly separable from each other. the Commission Legal Service represents the Union in such international litigation.2 International agreements With the entry into force of the Lisbon Treaty. 157 De Baere. 157 By contrast. with regard to which certain issues remain unclear. and Ramopoulos. The World Trading System: Law and Policy of International Economic Relations (2nd edn. 158 Art 37 TEU now simply provides that the Union may conclude agreements with one or more States or international organizations within the CFSP area. Hoffmeister. De Baere. Cases and Materials (3rd edn. nor of which institution is to represent it in such fora. Generally. 156 though this is often preceded by exploratory talks in the pre-negotiation stage between the Commission and potential third country treaty-partners. The Treaties make no specific mention of the possibility for the EU to take part in international dispute settlement. 2013) 79–81. during which the scope of the then Community’s competences were disputed) leading up to the WTO Agreement. Wouters. on a recommendation from the Presidency. 79. which could authorize the Presidency. the attention as regards external representation post-Lisbon has shifted from the CFSP to the notion of shared competences. n 7. subject to the rules of the Treaty. 154 6. MA and London: The MIT Press. While for analytical purposes a distinction between several procedural stages is useful. Nevertheless. 33 ILM 1144 (1994). an                                                              153 Agreement Establishing the World Trade Organization. 154 28    . 1867 UNTS 154. 159 ex Art 24(1) TEU. the procedure under Article 218 TFEU starts with the Commission making a recommendation to the Council. would then conclude any resulting international agreement. which encompassed several consecutive phases of negotiation. duly adapted and with a number of exceptions in order to be applicable also to CFSP treaties. 156 Art 218(1) TFEU. P Van den Bossche and W Zdouc. The Council. 155 See eg JH Jackson. This is especially the case with regard to complex negotiations such as the Uruguay Round of the GATT (an important international trade negotiation.160 Nevertheless. Cambridge: CUP. Cambridge. so long as they respect the principle of sincere cooperation. The Member States are in principle free to determine their own representation when acting outside the Union institutional framework. An example thereof will be examined in the case study below. Kuijper. largely based on the old Community treaty-making procedure in ex Article 300 TEC.155 6. n 5. 159 International agreements concluded in accordance with the procedure set out in ex Article 24 TEU bind the institutions of the Union. most notably the Dispute Settlement Understanding in Annex 2 of the World Trade Organization (‘WTO’) Agreement. 153 In practice. 160 ex Art 24(6) TEU. This section describes the different stages of the procedure and the respective roles of the different EU actors involved. 62-67. The Law and Policy of the World Trade Organization: Text. the ex Article 24 TEU 158 procedure for making international agreements within the spheres of the CFSP and PJCCM was set in motion by the Council. 1997) 44–46.

Art 207(3) TFEU (the Commission is the only possible negotiator in the field of the CCP) and Art 219(3) TFEU (the Commission is to be merely ‘fully associated with the negotiations’ concerning monetary or foreign exchange regime matters). the negotiator has to consult with special committees appointed by the Council to assist it in this task. Mixed Agreements Revisited. Nonetheless. cf nevertheless Art 218(8) TFEU on the agreement on accession of the Union to the ECHR. the Council does not need to act unanimously to amend it. the High Representative makes a recommendation to the Council. While it had quite an important role in negotiating international agreements in the sphere of the CFSP. 162 G De Baere. it adopts a decision authorising the opening of negotiations and. This is one example of how the Lisbon Treaty. nominating the Union negotiator or the head of the Union’s negotiating team. depending on the subject of the agreement envisaged. maintains the differentiation between ordinary EU external action and the CFSP. despite the increased consistency due to the unified treaty-making procedure. but does not explicitly determine who is to be the negotiator. especially when a proposed international agreement touches upon or includes aspects of Member State competence. is therefore inapposite: F Hoffmeister. the same would not appear to be the case as regards the withdrawal of a recommendation under Article 218(3) TFEU. a possibility that no longer exists after Lisbon. The question was at issue during the conflict between the Commission and the Council in the course of the negotiations towards a global ban on mercury. the Council Presidency. ‘Mercury Rising: The European Union and the International Negotiations for a Globally Binding Instrument on Mercury’ (2012) 37 ELR 648. The EU and its Member States in the World (Oxford and Portland.agreement was not to be binding on a Member State whose representative in the Council stated that it had to comply with the requirements of its own constitutional procedure. and operates under the aegis of COREPER or another senior preparatory committee) 166 in consultation with which the negotiations must be conducted. one might presuppose that the Council Presidency will continue to play a role in some form. ie a Council preparatory committee that performs the ‘ground work’ in one of the EU’s diverse policies. 165 These directives do not constitute delegated powers from the Council to the Commission and the term ‘mandate’. 164 and it will therefore probably let the appointment of the negotiator depend upon what it judges to be the ‘centre of gravity’ of the agreement. however. ‘Curse or Blessing? Mixed Agreements in the Recent Practice of the European Union and its Member States’ in C Hillion and P Koutrakos (eds. Under Article 218(3) TFEU. n 7.161 However. appears to lose out in the evolution from ex Article 24 TEU to Article 218 TFEU. OR: Hart Publishing. while the withdrawal by the Commission of a proposal under Articles 293294 TFEU implies an immediate end to the ongoing ordinary legislative procedure. 131. 29    . Art 218 TFEU spells out who is to submit recommendations under what circumstances. Given that a recommendation under Article 218(3) TFEU is not a Commission proposal under Article 293(1) TFEU. it will most likely appoint the High Representative as negotiator. Furthermore.162 If the Council deems the negotiation of the proposed international agreement in question to be opportune. When negotiating the agreement. 2010) 253.167                                                              161 ex Art 24(5) TEU. where the envisaged agreement exclusively or principally concerns the CFSP. and stay within the confines of the negotiating directives given to it by the Council.). 167 Art 218(4) TFEU.163 Article 218(3) TFEU appears to give the Council a choice. 166 See De Baere. If the Council deems it to be the CFSP. 163 Art 218(3) TFEU. its role appears now to have been mostly taken over by the High Representative. as mentioned above with respect to external representation. The Council can also address directives165 to the negotiator and designate a special committee (which is often a Council working party. 164 See. though used in daily practice. which will be discussed in the case study.

The Council acts unanimously a) when the agreement covers a field for which unanimity is required for the adoption of a Union act. which is the case for the Agreement on Trade-Related Aspects of Intellectual Property Rights.171 Indeed. 174 Art 212 TFEU. 171 Art 218(6) TFEU. UN Doc. 177 See Case C-414/11 Daiichi Sankyo and Sanofi-Aventis Deutschland [2013] ECR I-0000.176 Article 207(4) TFEU. 172 For example. [iii] land use. pursuant to the second subparagraph. with the exception of waste management. paras 52-53. acting on a proposal by the negotiator. (b) measures affecting: [(i)] town and country planning. 23 May 1969. 172 b) as regards association agreements. 15 April 1994. A/Conf. The Council is to act unanimously as regards agreements in trade in services. which may include a decision on the provisional application of the agreement. or by unanimity in the same circumstances as regarding the conclusion of the agreement.2. unanimity is required for the limited set of environmental matters listed in Art 191(2) TFEU: ‘(a) provisions primarily of a fiscal nature.6.3 Conclusion The Council concludes the agreement through a decision by QMV. the commercial aspects of intellectual property. 176 Art 218(8) TFEU. the first subparagraph of Article 218(8) TFEU specifies that the Council is to act by QMV throughout the procedure.168 starts with the negotiator nominated by the Council making a proposal to that effect. which forms the subject of the case study below.2 Signature The signing stage. adds more exceptions. 177 and foreign direct investment where such agreements include                                                              168 cf Art 25 Vienna Convention on the Law of Treaties. which contains a number of specific rules on the negotiation and conclusion of agreements within the sphere of the CCP.175 Additionally. directly or indirectly. Art 218(5) TFEU.’ On the difficulties associated with interpreting these exceptions: JH Jans and HHB Vedder.2. only those with a specific link to international trade are capable of falling within the concept of “commercial aspects of intellectual property” in Article 207(1) TFEU and hence the field of the common commercial policy’.170 6. 33 ILM 1197 (1994) (‘TRIPS-Agreement’). Groningen: Europa Law Publishing.173 and c) as regards agreements establishing economic. A specific case in which the Council is to act unanimously concerns the agreement on accession of the Union to the ECHR. (c) measures significantly affecting a Member State’s choice between different energy sources and the general structure of its energy supply. 175 Art 6(2) TEU. 173 Art 217 TFEU. 169 30    .169 It is then up to the Council to decide on the signing of the agreement and hence to approve or disapprove of the negotiator’s proposal. acting by QMV. 1155 UNTS 331. where the ECJ clarified that ‘of the rules adopted by the European Union in the field of intellectual property. the decision concluding this agreement is to enter into force only after it has been approved by the Member States in accordance with their respective constitutional requirements. 2012) 59-63. 1869 UNTS 299. a number of exceptions apply. financial and technical cooperation174 with candidate Member States. Nonetheless. the availability of those resources. 170 Art 218(8) TFEU.39/27. European Environmental Law After Lisbon (4th edn. [ii] quantitative management of water resources or affecting. in the field of external environmental law.

4 Role of the European Parliament Article 218(10) TFEU provides for the European Parliament to be immediately and fully informed ‘at all stages of the procedure’. with the exception of agreements relating exclusively180 to the CFSP. These are all sensitive areas in which the Member States did not wish to run the risk of the EU concluding an international agreement without the possibility to stop it. the agreement on Union accession to the ECHR. see section 7. (i) (ii) (iii) (iv) association agreements. the Council is to act unanimously as regards agreements a) in the field of trade in cultural. while others will follow the format for shared competences. 179 Some of the international agreements in that field will be concluded on the basis of exclusive Union competence. 182 Given that most agreements involving a cooperation procedure establish some sort of institutional framework. but nonetheless not concluded under the legal basis for association agreements (Art 217 TFEU). Article 207(5) TFEU simply contains a cross-reference to the Title on transport in the TFEU. A recent illustration of the sensitivity of audiovisual services in particular was provided by the decision of the Council in June 2013 that those services should initially not be part of the negotiation directives for the EU-US trade and investment negotiations. 180 Agreements under Art 218 TFEU may include both issues falling under the ordinary EU framework and falling under the CFSP. the latter can hardly be the distinguishing feature of this type of agreement.2. and 218(6)(a) and (8). which will often imply that they will be concluded as mixed agreements (ie agreements to which both the EU and the Member States are parties. where these agreements risk seriously disturbing the national organisation of such services and prejudicing the responsibility of Member States to deliver them. In practice the large majority of international agreements concluded by the Union are deemed to fall under one of the categories listed in Article 218(6)(a) TFEU and are subject to consent:181. and health services. and b) in the field of trade in social. With respect to such agreements. as well as mixed agreements in other fields. but that the Commission may make recommendations to the Council on possible additional negotiating directives at a later stage.183 and                                                              178 Commission MEMO/13/564 of 15 June 2013.provisions for which unanimity is required for the adoption of internal rules. where these agreements risk prejudicing the Union’s cultural and linguistic diversity. 181 See also chapter 4.182 agreements with important budgetary implications for the Union. education. a requirement for unanimous voting applies de facto due to the Member States’ involvement in the negotiation and ratification of those treaties. This category therefore probably refers to international agreements setting up an institutional structure attaining a certain level of complexity. with respect to agreements in the field of transport. parliamentary involvement in the conclusion of international agreements is now the rule. Title VI of Part Three TFEU. and audiovisual services. Moreover. agreements establishing a specific institutional framework by organising cooperation procedures. 212. 179 31    .178 Finally. eg Council Decision 2006/719/EC of 5 October 2006 on the accession of the Community to the Hague Conference on Private International Law [2006] OJ L297/1. 6. Furthermore. which is based on a joint legal basis of Arts 31(1) and 37 TEU and Arts 209.1 below). second subpara. eg Council Decision 2012/308/CFSP on the accession of the European Union to the Treaty of Amity and Cooperation in Southeast Asia [2012] OJ L154/1. TFEU.

185 Category (v) brings about a small revolution in EU external action. 75 and 85. n 26. 6. 187 De Baere. Article 218(6)(b) TFEU provides for consultation of the European Parliament to be required in all cases except those for which consent is required pursuant to Article 218(6)(a) TFEU. 187 Since the entry into force of the Lisbon Treaty. see further chapter 5. Art 294 TFEU. para 42.5 Legal instrument The internal Union instruments used to conclude international agreements are often decisions not specifying to whom they are addressed. Under the second paragraph of ex Article 300(3) TEC. 183 184 32    . Nonetheless. the Union’s residual competence. 184 or the special legislative procedure where consent by the European Parliament is required. but in all areas in which its consent is mandatory. regardless of whether the legal instrument by which an international agreement is concluded is listed in Article 288 TFEU or is sui generis. the Parliament underlined its greater powers by first withholding its consent to the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program (‘SWIFT’). As mentioned above. For example. as mentioned above. The change is perhaps most dramatic in the CCP where. it is amenable to judicial review by the ECJ.188 The Parliament has been keen to demonstrate its increased powers not just in the area of external trade. eg Art 352(1) TFEU.0158/2010 – 2010/0178(NLE)) [2011] OJ C351E/453.190 Furthermore. paras 20–32 for the relevant criteria.(v) agreements covering fields to which either the ordinary legislative procedure applies. shortly after the entry into force of the Lisbon Treaty. 190 European Parliament legislative resolution of 8 July 2010 (11222/1/2010/REV 1 and COR 1 – C7. 186 Emphasis added.2. for example. 191 ERTA. There would therefore be less need than before the entry into force of the Lisbon Treaty to have recourse to legal instruments outside the scope of that Article. that category contained ‘agreements entailing amendment of an act adopted under the [co-decision] procedure’.189 another controversial international agreement. That much is clear. and only agreeing to consent after it felt that its concerns had been taken into account. Article 218(6)(a)(v) TFEU implies a substantial extension of the power of the European Parliament. the European Parliament’s consent is now required for agreements in the CCP. 185 Art 289(2) TFEU.186 Given that consent of the Parliament is now required every time the ordinary legislative procedure applies and given the fact that the scope of the ordinary legislative procedure has been significantly enlarged in comparison to the co-decision procedure. (12195/2011 – C7-0027/2012 – 2011/0167(NLE)). these are now given an explicit legal basis in the fourth paragraph of Article 288 TFEU. n 7. notably on account of its alleged infringement of the right to protection of personal data. On the scope of the ordinary legislative procedure and special legislative procedures. before Lisbon the Parliament had no formal role in internal decision-making and did not even need to be consulted with respect to international trade agreements. 189 European Parliament legislative resolution of 11 February 2010 (05305/1/2010 REV 1 – C7-0004/2010 – 2009/0190(NLE)) [2010] OJ C341E/100. from the Parliament’s refusal to consent to the highly controversial Anti-Counterfeiting Trade Agreement (‘ACTA’).191                                                                                                                                                                                            See Case C-189/97 European Parliament v Council [1999] ECR I-4741. 188 European Parliament legislative resolution of 4 July 2012.

and for the EU in general.194 while the European Parliament is to be ‘immediately and fully informed’. while respecting the possibilities for differentiation within and across the several levels of government.6 Decision-making in a body set up by an international agreement The conclusion by the Union of an ‘association agreement’ under Article 217 TFEU or another international agreement will sometimes give rise to the establishment of its own decision-making organs within which the Union will wish to take positions. 7. paras 8–11. Article 218(9) TFEU gives the Council the competence. remain broadly consistent and coherent. as well as the external aspects of its other policies. [1977] L361. 193 eg Art IX(1) WTO Agreement. Such bodies with the competence to take binding decisions often do so by consensus. Because of its internally differentiated constitutional structure. through a set of values that are to govern all EU action. as it is at all stages of the Article 218 TFEU procedure. 193 The common positions to be defended by the Union need to be established in advance of the meeting at which the decision is scheduled to be taken. between the EU and its Member States. 2009) 287-343 and De Baere and Gutman. excluding.196 as well as a single set of principles and objectives for the entire field of EU external action. 197 The Union must respect those principles and pursue those objectives in the development and implementation of the different areas of the Union’s external action. towards the outside world? A crucial element in understanding how the current arrangement of the deck chairs on the ship of EU external action affects the Union’s ability to have a consistent and effective external policy is to grasp the fact that the Union must do so against the background of 28 Member States retaining a large part of their external sovereignty and consequently their ability to have their own foreign policies. which is often considered as at least as important. on a proposal from the Commission or the High Representative. both internally and. the determination of the Union position cannot be left solely to the Commission. [1973] C113/1. 197 Arts 3(5) and 21 TEU. Given that the adoption of binding decisions in such international bodies in effect amounts to a new way of making EU law.198 The Union must also                                                              192 Agreement establishing an Association between the European Economic Community and Turkey – Protocol 1: Provisional Protocol – Protocol 2: Financial Protocol – Final Act – Declarations [1964] OJ 217/3687. and at least the involvement of the Council seems therefore necessary. acts supplementing or amending the institutional framework of the agreement. and vertically. See further chapters 3 and 4. Managing the vertical division of EU external competences How is a federal-type structure like the EU195 to ensure that its policies. and policies. when such a body is ‘called upon to adopt acts having legal effects’. These binding decisions do become an integral part of the EU legal system. 198 Art 21(3). paras 14–18.6. the EU has to strive for consistency on two fronts: horizontally between its different institutions. The Lisbon Treaty has tried to tackle that issue by providing an overarching constitutional framework for the EU’s external action. however. Notable examples include the association agreement with Turkey192 and the WTO Agreement. 194 eg Case C-192/89 Sevince [1990] ECR I-3461. n 79. ie constitutional decisions sensu stricto. This also implies that the Court has jurisdiction to give preliminary rulings on questions of interpretation of such (even non-binding) decisions: eg Case C-188/91 Deutsche Shell AG v Hauptzollamt Hamburg-Harburg [1993] ECR I-363.2. first subpara. and Art 205 TFEU. structures. 196 Art 2 TEU. TEU. 33    . 195 Further: R Schütze. to establish the positions to be adopted on the Union’s behalf in such treaty-based bodies. From Dual to Cooperative Federalism: The Changing Structure of European Law (Oxford: OUP.

201 Eeckhout. to know who should be held responsible in the event of noncompliance. 220-221. J Heliskoski.204 Under Article 218 TFEU. n 7. The Council and the Commission. under the previous Treaty framework. 202 Opinion in Case C-240/09 Lesoochranárske zoskupenie [2011] ECR I-1255. 2010). the preferred solution was often to consider the ‘second pillar’ aspects of the agreement as belonging to Member State competences and resorting to a mixed agreement involving the Community and the Member States. second subpara. 2001) 7. the Union manages the vertical and horizontal division of external action competences through a combination of pragmatism and principle. OR: Hart Publishing. are to ensure that consistency and are to cooperate to that effect. 200 34    . such a ‘cross-pillar’ agreement can be concluded as one integrated Union agreement while taking into account the differences in procedure between the CFSP and non-CFSP aspects of the agreement. 294-298.1. 202 Their lack of clarity as to the precise vertical division of competences makes mixed agreements suitable for enabling the Union to act internationally while keeping the competence situation sufficiently vague so as not to affect openly the Member States’ external competences. n 28.1. 7. Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (The Hague/London/New York: Kluwer Law International. particularly for third parties to a mixed agreement. 203 The Lisbon Treaty may have reduced the need for mixed agreements.                                                              199 Art 21(3). the present section analyses two constitutional concepts of vital importance for the management of the vertical division of competences: the technique of mixity and the principle of sincere cooperation. Mixed Agreements Revisited: The EU and its Member States in the World (Oxford and Portland. Moreover. 204 De Baere.199 In practice. n 28.200 7. assisted by the High Representative.201 As Advocate General Sharpston put it. 203 See Eeckhout.1 What are mixed Agreements? An introduction into the law of EU external action would not be complete without a few words on the peculiar species called ‘mixed agreements’. While section 8 examines the horizontal division of competences. and which fall partly within the competence of the Union and partly within the competence of the Member States. 262-264. ‘the mixed agreement is itself a creature of pragmatic forces – a means of resolving the problems posed by the need for international agreements in a multi-layered system’. point 56. However. the unwillingness of the Union to provide any clear division of competences makes it difficult.2 Why are there mixed agreements? Mixed external action is almost invariably the outcome of internal power struggles within the Union. Further: C Hillion and P Koutrakos. if an agreement needed to integrate both first and second pillar elements. TEU. and virtually never the result of a specific demand from a non-Union contracting partner. which can be defined as agreements that include among their parties the Union and all or some of the Member States.ensure consistency between the different areas of its external action and between these and its other policies. For example. an overly precise determination of the respective competences of the Union and the Member States might ‘freeze’ the Union’s competences and hinder its evolving constitutional order.1 Mixed agreements 7.

1997) 53–59.210 Apart from this.211 Mixed agreements concluded by the Union form an integral part of the EU legal order. Not only ‘trade in goods and services. and the European Community and its Member States. 211 Eg Council Decision 2012/196/EC of 13 July 2009 on the signing and provisional application of the Interim Agreement establishing a framework for an Economic Partnership Agreement between the Eastern and Southern Africa States. most often including scrutiny and approval by the Member State parliaments. n 177 paras 52-53. in order to avoid so-called ‘partial mixity’.209 A mixed agreement has to be ratified by both the Union – which requires going through the normal Article 218 TFEU procedure and. in combination with a more pronounced presence of Member State representatives. For example. which (as revised by the Lisbon Treaty) considerably expands the Union’s exclusive competence in the CCP. 7. 209 See Opinion 1/94. The Council adopted the practice of only concluding a mixed agreement after all Member States have ratified. The Union has thus had to develop a strategy to tackle the problems engendered by the potentially long time-span between the signing and the entry into force of a mixed agreement. n 58. notwithstanding the acrimonious battles over the vertical division of competences during the Uruguay Round. includes the formal involvement of the European Parliament – and by every single Member State (if all Member States.3 Concluding mixed agreements There is no specific procedure for concluding mixed agreements. 208 leaving aside until the end of the negotiations the issue of who was competent – which was then submitted to the Court of Justice. and the commercial aspects of intellectual property’ 207 are now covered. but also ‘foreign direct investment’. 208 cf P Van den Bossche. as well as coordination meetings during which the line to be followed by the Commission during the negotiations is decided. n 10. Implementing the Uruguay Round (Oxford: OUP.205 It appears to be intended to cover essentially the full scope 206 of the WTO covered agreements. 35    .Another factor that has the potential of reducing the need for mixed agreements is Article 207 TFEU. participate in the agreement). but a practice has developed by which the majority of mixed agreements are negotiated under the Article 218 TFEU procedure (see section 6. in a clear majority of the cases.1. 206 With the notable exception of transport: Art 207(5) TFEU. which will have to go through its own constitutional procedures. as is usual. facilitate or govern trade and has direct and immediate effects on trade’: Conditional Access Convention. in which the ECJ held the TRIPS-Agreement to fall within the exclusive competence of the EU in the field of the CCP. not to trade in the internal market’. 210 cf Art 102 EAEC.2 above). An EU act falls within that policy ‘if it relates specifically to international trade in that it is essentially intended to promote. and the ECJ has jurisdiction to give preliminary rulings concerning the interpretation of such                                                              205 Nevertheless. on the one part. 207 See Daiichi Sankyo. and the mere fact that an EU act ‘is liable to have implications for international trade’ is not enough for it to fall within the CCP. paras 56-57 and the case-law cited there. as provided for by Article 218(5) TFEU and Article 25 of the Vienna Convention on the Law of Treaties. the ECJ has clarified that the CCP only ‘relates to trade with non-member countries. It does not require much imagination to see that this is liable to be a cumbersome process. which can be concluded by a Council decision or can have the agreement provisionally applied from the time of signature. the Union can also enter into an interim agreement on the Union aspects of the mixed agreement. the Member States let the Commission act as the negotiator as regards the entire agreement. on the other part [2012] OJ L111/1. ‘The European Community and the Uruguay Round Agreements’ in JH Jackson and AO Sykes (eds). which expressly provides for this approach.

219 PFOS.215 Crucially. the Court has jurisdiction to define the obligations which the Union has assumed and those which remain the sole responsibility of the Member States in order to interpret the mixed agreement in question. paras 33–34. It requires the Union and the Member States. n 80. is of great importance for the Union’s external action and for its entire constitutional structure.220 Indeed. ‘The Limits of European Community Powers’ (1996) 21 ELR 114. Developments in EU External Relations Law (Oxford: OUP. ‘Defending the Community Interest: the Duties of Cooperation and Compliance’ in M Cremona and B de Witte (eds). n 69. This operation of the duty of cooperation underscores the distinction between the scope of Union law and the scope of Union competences. 212 213 36    . n 80. Constitutional Fundamentals (Oxford: Hart Publishing. paras 30-31 and the case-law cited there. un pour tous! Coherence in the External Relations of the European Union’ in M Cremona (ed). PFOS. The Member States are to take any appropriate measure. the duty of cooperation in Union law does not regulate the vertical or horizontal division of competences. 214 Ruling 1/78. to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union and to facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives. in full mutual respect. n 202. 215 Opinion 2/91.214 which in turn results from the requirement of unity in the international representation of the Union. ‘Tous pour un. 218 Case C-266/03 Commission v Luxembourg [2005] ECR I-4805 and Case C-433/03 Commission v Germany [2005] ECR I-6985. 221 The duty of cooperation makes this quite clear.218 and the prohibition for a Member State to distance itself from an agreed Union strategy by taking action within an international organization that could potentially bind the Union. 221 A Dashwood. 216 Nevertheless. the ECJ has been steadily reinforcing the procedural obligations flowing from the duty of loyal cooperation: from the prohibition on submitting a case that falls within the scope of EU law to a non-EU judicial organ. discovering the limits of Union competences is not the same as discovering the limits of the Treaties’ scope of application.an agreement. In particular.2 Sincere cooperation The duty of loyal cooperation or sincere cooperation. EU Foreign Relations Law. paras 69-71 and the case-law referred to therein. 217 Case C-459/03 Commission v Ireland (‘Mox Plant’) [2006] ECR I-4635. 2008) 168. to assist each other in carrying out tasks which flow from the Treaties. 212 7. It is clear that the strictures of the duty of cooperation depend crucially on the international context in which the Union and the Member States operate together. but the exercise of those competences. The duty of sincere cooperation is of general application and does not depend either on whether the Union competence concerned is exclusive or on any right of the Member States to enter into obligations towards non-member countries. 219 The procedural duties imposed on Member States by the principle of loyal cooperation cannot be captured in a simple dichotomy of the Member States’ ability or inability to act independently. 220 See M Cremona. as laid down in Article 4(3) TEU. 216 See C Hillion. 2008) 28.213 That duty lies at the basis of the specific duty of cooperation in external matters. Member States and the Union institutions within their respective spheres of competence are under a mutual obligation to                                                              Lesoochranárske zoskupenie. general or particular. The decisive criterion is whether the action of the Member States is likely to hinder or impede the Union’s action. n 80.217 to that on negotiating separate treaties without as much as informing the Commission after the latter has been authorized by the Council to negotiate international agreements with the same third State(s) on the same subject-matter. para 36.

222 The protection of the environment is mentioned twice among the basic objectives of the Union’s external action. on behalf of the European Community. which is further considered in the case study. measures based on Article 191(4) TFEU leave the Member States’ competence to act internationally intact. 229 Opinion 2/00. 227 and the eventual Council decision. The ERTA doctrine would in principle appear to apply to such measures. the legal bases for EU external environmental law are to be found in Articles 191 and 192 in Title XX of Part Three of the TFEU. which implies a parallel competence (see section 4. Wouters. which was based on ex Article 174(4) TEC.1 above). clear from comparing the Commission proposal regarding the Kyoto Protocol. the ECJ has severely limited the applicability of that article as a legal basis.228 Most substantive measures were based on ex Article 175 TEC and will now presumably be based on Article 192 TFEU. see chapter 22. That is illustrated by the PFOS case. 223 Art 21(2)(d) and (f) TEU. n 12. of the Kyoto Protocol to the United Nations Framework Convention on Climate Change and the joint fulfilment of commitments thereunder (COM/2001/0579 final) [2002] OJ 75E/17.223 ‘Environment’ is listed as a shared competence under Article 4(2)(e) TFEU.224 Article 193 TFEU 225 further clarifies that measures taken on the basis of Article 192 TFEU are to be minimum requirements. Hoffmeister. on behalf of the European Community. an international agreement linked to the United Nations Framework Convention on Climate Change. De Baere.1: external environmental policy As a constantly growing policy field with a complex competence structure. 230 Further: G De Baere. based on ex Article 175(1) TEC (now Article 192(1) TFEU). which sets internationally binding emission reduction targets. There is an explicit legal basis for EU external action in Article 191(4) TFEU. ‘“O. of the Kyoto Protocol to the United Nations Framework Convention on Climate Change and the joint fulfilment of commitments thereunder [2002] OJ L130/1. n 5. Where is Loyalty?” Some Thoughts on the Duty of Loyal Cooperation and the Union’s External Environmental Competences in the light of the PFOS Case’ (2011) 36 ELR 405-419. 225 Ex Art 176 TEC. However.230                                                              222 For more on the detail of EU environmental law. 224 Ex Arts 174 and 175 TEC. n 12. The ECJ further clarified the scope of Article 193 TFEU in the PFOS case.229 However. which provides for the Union and the Member States to cooperate with third countries and with the competent international organisations within their respective spheres of competence.4.226 As a consequence. 227 Proposal for a Council Decision concerning the approval.1 above). minimum standards such as those pursuant to Article 193 TFEU normally give rise to non-exclusive EU competences. for example. In particular. As is clear from its second subparagraph. That is. adding that the arrangements for Union cooperation ‘may be the subject of agreements between the Union and the third parties concerned’.4. 226 Opinion 2/00. Case study 24.cooperate. Further on EU external environmental policy: Kuijper. 228 Council Decision 2002/358/EC of 25 April 2002 concerning the approval. ch 10. external environmental policy provides an excellent testing ground to see the post-Lisbon framework for EU external action in operation. ex Article 174(4) TEC (now Article 191(4) TFEU) was abandoned as the default legal basis for external environmental agreements. paras 44-46. 37    . and Ramopoulos. as mentioned above (see section 4. Where is Faith? O. para 44.

resist degradation. n 80.236 to which the EU is an observer. 232 38    . where they accumulate in terrestrial and aquatic ecosystems. and Ramopoulos. on behalf of the European Community. water and migratory species. 1716. is quite a different thing and does not fall within the scope of Article 193 TFEU. the principle of sincere cooperation (now Art 4(3) TEU) required that it take into account the fact that the Union too is competent in the matter and that a strategy had been agreed within the Council. 813-814. Hoffmeister. in doing so. In the context of talks about the reform of the IWC. to which the Union 232 and all Member States are parties. of the Stockholm Convention on Persistent Organic Pollutants [2006] OJ L209/1. An amendment to the Whaling Convention allowing the EU to become a member would require the ratification of a protocol by all IWC members. The first recital in the preamble to the Convention specifies that POPs possess toxic properties. at the next three meetings of the International Whaling Commission. The Convention is a mixed agreement. 40 ILM 532 (2001). 233 PFOS. the Commission in 2011 proposed to support proposals addressing the revision of the Convention including the possibility for the EU to become a party to the IWC: COM(2011) 495 final. para 19. including the related inter-sessional meetings. Council Decision 2006/507/EC of 14 October 2004 concerning the conclusion. on 2 December 1946.235 the international organisation competent for the conservation and management of whale stocks. if the Union were not to be bound by a more stringent measure. in relation to matters falling within its competence. across international boundaries and deposited far from their place of release. the objective of which is to protect human health and the environment from Persistent Organic Pollutants (‘POPs’). Wouters. De Baere. the Member States would arguably be free to adopt it or propose it in the relevant international fora.C. the Council on that basis adopted a Council Decision establishing the position to be adopted on behalf of the European Union. 161 UNTS 72. 235 See Kuijper. An example of this would be the participation of the Member States in the International Whaling Commission (‘IWC’). The Commission adopted a proposal in 1992 (COM(92) 316) to negotiate the accession of the Community to the Whaling Convention. which would imply that the Union may be bound by a more stringent measure with which it did not express its agreement.234 It is important to appreciate that Sweden was exercising its own competence when it submitted the proposal to list PFOS. bioaccumulate and are transported. It was set up by the International Convention for the Regulation of Whaling (‘the Whaling Convention’). However. 233 A Member State is free to adopt measures providing for a higher level of protection within its own jurisdiction. proposing such measures within the framework of an international agreement to which the Union is a party. 234 PFOS. through air.237 EU regulatory activity as regards matters pertaining to whaling does not come                                                              231 Adopted on 22 May 2001. However. but the Council did not follow up on this proposal. 18153/11. n 80. At its meeting on 19 December 2011. often because the international agreement in question does not permit international organizations to become a party. n 5. 62 Stat. The International Whaling Commission However. para 102. with regard to proposals for amendments to the International Convention on the Regulation of Whaling and its Schedule: Council Doc.The PFOS case The PFOS case concerned infringement proceedings brought by the Commission against Sweden for having unilaterally proposed that perfluoroctane sulfonate (‘PFOS’) be added to Annex A to the Stockholm Convention on Persistent Organic Pollutants. 236 Signed in Washington D. Such a situation would typically occur with respect to an international agreement to which the Union has not acceded. 237 Membership of the IWC is only open to governments that adhere to the Whaling Convention.231 The Stockholm Convention is a multilateral agreement.

Chapter 3 mentions ‘Fish. 244 UNEP.under the exclusive common fisheries policy. all the powers previously exercised by the Member States that fall within the convention in question. a specific institutional application of which is now explicitly contained in Article 13(2) TEU. 242 See in that sense also L Krämer. The main source of such exposure is seafood consumption. while being prevented from supporting any measure lowering such protection below the level guaranteed by EU law. Art 4(2)(e) TFEU. 244 The potentially adverse effects of the presence of mercury in the environment have been well documented.245                                                              238 Art 3(1)(d) TFEU. 239 39    . 238 but under the shared competence on the environment. 640-655.242 The Mercury negotiations The complexity of EU external environmental competences being what it is. whether and. The latter are only mentioned in Chapter 15. n 107. Annex I to the TFEU lists the products coming under art 38 TFEU on the common agriculture and fisheries policy. all of which are bound by the duty of sincere cooperation in Article 4(3) TEU. 241 ATAA. but not marine mammals. 240 eg Council Regulation (EEC) No 348/81 of 20 January 1981 on common rules for imports of whales or other cetacean products [1981] OJ L39/1. Global Mercury Assessment (UNEP Chemicals: Geneva. EU action on whaling has as a rule been taken under environmental competence. Would the same count if a position had been reached? Given that the EU is not a Party to the Whaling Convention and cannot be bound by the decisions taken by the IWC. At any rate. 2010) 6-7. to what extent a specific issue that forms the subject of international negotiations falls within the competence of the Union or of the Member States is often less than clear.243 Elemental mercury is a shiny. That situation will inevitably lead to competence quarrels between the Union and the Member States and between the EU institutions. and thus had transferred to it. it must have assumed. A particularly unseemly example of how things can go awry regardless is the saga surrounding the negotiations for an international binding instrument on mercury. The ECJ has put the threshold for that to happen rather high: in order for the Union to be capable of being bound. That would quite clearly be the case if no position on such a proposal could be reached within the Council. Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein [1997] OJ L 61/1.239 While Union action on whaling has been taken. recent research has shown substantial economic impacts to the EU from neurocognitive impairment associated with methylmercury (MeHg) exposures. n 162.240 it would go too far to say that the Union has exercised its competence to such an extent that it has replaced the Member States within the IWC and is consequently bound by its decisions. crustaceans and molluscs’. ‘Future trends in environmental mercury concentrations: implications for prevention strategies’ (2013) 12 Environmental Health 2. Negotiating and voting on whale protection within the International Whaling Commission (IWC) (International Fund for Animal Welfare. 243 Further De Baere. including many marine species harvested from the global oceans. Switzerland. Indeed. December 2002) 40. of fish and marine mammals. whether or not refined’. it would seem legitimate for a Member State to vote in favour of any measure proposed within the IWC that would strengthen the protection of whales beyond and above the protection agreed within the Union. silver-white metal that is a liquid at room temperature and is or was traditionally used in thermometers. Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/7. it would seem that it must follow from Article 193 TFEU that Member States ought to remain free to support measures enhancing the protection of whales. 245 EM Sunderland and NE Selin. which provides for the institutions to ‘practice mutual sincere cooperation’.241 Given that EU action as regards whaling most likely does not meet that threshold. if so.04: ‘Fats and oil. para 63.

Further statements were then made partly by the Commission on behalf of the EU.247 the Commission suggested that mercury was a substance already regulated to a large extent by existing legislation at Community level.250                                                              246 Ibid. acceptance. on behalf of the Community in the negotiations. 248 Council Doc. is that the Commission withdrew its recommendation. it would likewise continue to take the floor on behalf of the EU. 16632/10. 247 40    . Recommendation from the Commission to the Council on the participation of the European Community in negotiations on a legally binding instrument on mercury further to Decision 25/5 of the Governing Council of the United Nations Environment Programme (UNEP). on the substance. The mercury negotiations should therefore have been relatively easy from a technical point of view. 249 Article 1 of the Council Decision on the participation of the Union in negotiations on a legally binding instrument on mercury further to Decision 25/5 of the Governing Council of the United Nations Environment Programme (UNEP). In order to avoid a further eye-wateringly undignified display of disunion. explaining that it was not in a position to negotiate and that the Member States likewise could not negotiate an instrument that affected internal EU rules. the Convention is to enter will into force on the ninetieth day after the date of deposit of the fiftieth instrument of ratification. Nevertheless. practical arrangements were subsequently agreed for the Presidency to speak on behalf of the Member States on certain topics and for the Commission to speak on behalf of the EU and its Member States on other topics. but global-scale action is needed to address the mercury problem. SEC(2009) 983 final. all Member States agree that mercury should be phased out. partly by the Presidency on behalf of the Member States. 248 The Commission took a particularly dim view of that proposed arrangement. What emerges from the publicly available documents.249 The irony of this unedifying episode is that. which led to an unprecedented institutional crisis. That gave rise to what must have been a baffling spectacle. The first session of the intergovernmental negotiating committee (INC) took place in Stockholm from 7 to 11 June 2010. The absence of a decision authorising the Commission to participate in the negotiations resulted in intense and protracted discussions between the Member States and the Commission on the issue of who should take the floor at the Plenary Session. However. A compromise was finally reached in late 2010. In its recommendation of 15 July 2009. 246 Such action was the objective of the negotiations under the United Nations Environment Programme (UNEP) for a global mercury treaty. all’s well that ends well. as the international mercury negotiations culminated in January 2013 in the adoption of the text of a global legally binding instrument on mercury called the ‘Minamata Convention on Mercury’. an opening statement was made by the Commission on behalf of the EU. the Council Presidency prepared a text that provided for the EU and its Member States to be represented by the Commission and the rotating Presidency. 250 In accordance with its art 31(1). Council Doc.Mercury controls have been shown to lead to reductions in fish MeHg concentrations at local scales. In addition to an opening statement by the Council Presidency on behalf of the Member States. 9504/10. at ‘Implications for prevention strategies’. It requested that the Council authorize it to participate. The Commission was authorised to participate on behalf of the Union in the negotiations on a binding instrument as regards matters falling within the Union’s competence and in respect of which the Union has adopted rules. approval or accession. in consultation with the special committee designated by the Council in accordance with the negotiating directives. The Commission further made it clear that if the Presidency proceeded to intervene on behalf of the Member States. on behalf of whom and on what basis. and the EU wished to take part in the process.

of Council Decision 2004/833/CFSP of 2 December 2004 implementing Joint Action 2002/589/CFSP with a view to a European Union contribution to the Economic Community of West African States (ECOWAS) in the framework of the Moratorium on Small Arms and Light Weapons. The Mercury Saga is arguably the most flagrant failure yet of post-Lisbon unified international representation and consistent and efficient external action and PFOS the most recent judicial reinforcement of the loyalty obligation. 252 41    . The Commission’s quarrel was with the fact that the Council had adopted the                                                              251 Emphasis added. which provided that the Union was to be ‘founded on the European Communities. against Council Joint Action 2002/589/CFSP254 on which the disputed Decision was based. The dispute in the context of the negotiations on a binding instrument on mercury between the Commission as defender of increased consistency and efficiency in EU external environmental action through a more unified external representation under its aegis and the Council as the defender of Member State interests is telling in this regard. 254 Council Joint Action 2002/589/CFSP of 12 July 2002 on the European Union’s contribution to combating the destabilizing accumulation and spread of small arms and light weapons and repealing Joint Action 1999/34/CFSP [2002] OJ L191/1. for lack of competence. 8. nor indeed the reinforcement of loyalty in the Treaties and in the case-law appear to have been able to prevent the mercury debacle. Finally. 253 [2004] OJ L359/65. 252 The Commission had brought an action seeking the annulment. Case C-91/05 Commission v Council (‘Small Arms and Light Weapons’ or ‘SALW’) [2008] ECR I-3651. will remain as elusive a goal in the post-Lisbon era as it has been up to now.Conclusion Member States’ desire to remain present on the international scene as autonomous actors appears not to have diminished after the entry into force of the Lisbon Treaty. It is therefore as yet unclear whether a more unified international representation and consistent external action. it is perhaps a sobering thought that neither the explicit categorization of the Union’s competences by the FEU Treaty. The ECJ had to ensure this. Both pleas were based on the same grounds.253 In addition. and did so most notably for external action in Small Arms and Light Weapons. a case of great significance for the relationship between first and second pillar external action in the pre-Lisbon constitutional framework. the Commission raised a plea of illegality. as the example of the IWC demonstrates. especially in areas of shared competence. However. ex Article 47 TEU was designed to preserve the integrity of the Community legal order and provided that nothing in the EU Treaty could affect ‘the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying or supplementing them’. nor the structures set-up to provide for a more unified international representation and consistent and efficient external action.1 Pre Lisbon The point of departure for the relationship between the first and the second pillar under the old Treaty framework was ex Article 1 TEU. Managing the horizontal division of EU external competences 8. pursuant to ex Article 46 TEU. the international context within which the EU operates may also necessitate the continued presence of Member States in the external representation of EU competences. Mixed representation would appear to be here to stay even after Lisbon. Following a similar logic. supplemented by the policies and forms of cooperation established’251 by the EU Treaty. in external environmental policy as in other areas. pursuant to ex Article 241 TEC (now Article 277 TFEU).

had as their main purpose the implementation of a Community policy. However. respectively. Article 47 EU aims […] to maintain and build on the acquis communautaire and that a measure having legal effects adopted under the CFSP affected the provisions of the EC Treaty ‘whenever it could have been adopted on the basis of the EC Treaty’. para 76. according to which recourse to a dual legal basis is not possible where the procedures laid down for each legal basis are incompatible with each other. but on the position of principle that the Union could not have recourse to a legal basis falling within the CFSP in order to adopt provisions which also fell within a Community competence. the ECJ appeared to shut the door not only to internal cross-pillar measures with a legal basis in both the first and the second pillars. within Community development cooperation policy and within the CFSP. which was concluded under then Community competences. 259 SALW.255 The ECJ held that. Caribbean and Pacific Group of States of the one part. 260 Case C-300/89 Commission v Council [1991] ECR I-2867 (‘Titanium Dioxide’). whereas the spread of small arms and light weapons is covered by Article 11 of the Cotonou Agreement. by not basing its reasoning on the procedural argument. development cooperation measures were to be adopted by the Council acting in accordance with the co-decision procedure.258 The ECJ also explicitly held that a combination of legal bases was impossible with regard to a measure that pursues a number of objectives or which has several components falling.disputed Decision under the CFSP. Whereas CFSP measures were. in providing that nothing in the EU Treaty is to affect the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying or supplementing them. those provisions infringed ex Article 47 TEU. in principle. n 252. paras 17-21. signed in Cotonou on 23 June 2000 [2000] OJ L317/3. and if they could properly have been adopted on the basis of the EC Treaty. 261 ex Art 251 TEC. and where neither one of those components is incidental to the other.257 The ECJ added that it was unnecessary in this respect to examine whether the measure prevented or limited the exercise by the Community of its competences. on account of both their aim and their content. but also to cross-pillar international agreements. paras 58–60. Such an approach was not conducive to overall consistency and effectiveness of EU external action in general and development cooperation policy in particular.256 This was in line with Advocate General Mengozzi’s suggestion that ex Article 47 TEU had to be read as providing that ‘if an action could be undertaken on the basis of the EC Treaty. 261 Under the Titanium dioxide line of case-law. 256 SALW. 42    . point 116.260 created insuperable difficulties for cross-pillar internal measures involving the first and second pillars. base this conclusion on what would seem to be legally the most convincing argument. and the European Community and its Member States. to be adopted solely by the Council acting unanimously. n 252. para 60. 257 Opinion in SALW. The Titanium Dioxide line of case-law. n 252. 262 De Baere. however.259 The ECJ did not. 296-297. The only consideration that mattered is that if the provisions of a CFSP measure. it must be undertaken by virtue of that Treaty’. 258 SALW. n 252. of the other part. these procedures would indeed seem incompatible.262                                                              255 Partnership Agreement between the members of the African. n 7.

However.8. thereby rejecting the European Parliament’s argument that the measure ought to have been taken on the basis of Article 75 TFEU. respectively. See further Joined Cases C-584/10 P. the distinction between ‘preserving peace and/or strengthening international security’ (CFSP) and ‘social and economic development’ (development cooperation) would not resolve any border conflict between ordinary external action of the Union and the CFSP. This makes the ECJ’s objectives-based analysis in Small Arms and Light Weapons difficult. which ensured a greater degree of parliamentary participation through the ordinary legislative procedure.263 Article 40 TEU now prohibits any mutual invasion of territory between the ‘Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union’ (viz the former first pillar competences) and the CFSP. because as noted above. the absence of specific CFSP objectives post Lisbon makes it considerably more difficult for the ECJ to                                                              263 See also Art 1(2) TFEU. 268 Recital 4 in the preamble to Regulation 1286/2009. under Articles 21(2)(c) and 21(2) (d) TEU. [2002] OJ L139/9. and the Taliban.270 It therefore left the question open of how to choose between the CFSP and ordinary external action on the basis of the indications given by the ECJ in Small Arms and Light Weapons. 265 [2009] OJ L346/42. 270 Opinion in LBRM. following the Court’s judgment267 in Kadi and Al Barakaat.268 The Court held that the contested regulation was rightly based on Article 215(2) TFEU. A Albors-Llorens.264 There. forthcoming 2013). C-593/10 P and C-595/10 P Commission. 267 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351.265 The contested regulation amends Regulation 881/2002266 to provide for a listing procedure ensuring that the fundamental rights of the defence and in particular the right to be heard are respected. the Al-Qaeda network. if not impossible to undertake. For example. 266 Regulation (EC) No 881/2002.2 Post Lisbon The picture has become quite different after the entry into force of the Lisbon Treaty. The third paragraph of Article 1 TEU now provides that the Union is to be founded on the EU Treaty and on the TFEU: ‘Those two Treaties shall have the same legal value’. the ECJ refused to attach any of the objectives of Article 21 TEU specifically to the CFSP.269 In doing so. the Court rejected the European Parliament’s action for annulment against Council Regulation (EU) No 1286/2009 of 22 December 2009 amending Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden. Council and UK v Kadi [2013] ECR I-0000 and the case studies in chapters 8 and 9. M Gehring and R Schütze (eds). But I Think I Got Away with it All Right”: Reflections on the Choice of Legal Basis in EU External Relations after the Legal Basis for Restrictive Measures Judgment’ in C Barnard. n 264. Further: G De Baere. OR: Hart Publishing. against the advice of Advocate General Bot. Cambridge Ybk of Eur Leg Stud. The matter was before the Court in the post-Lisbon Legal Basis for Restrictive Measures case. Unless one is willing to adopt Advocate General Bot’s approach and sacrifice the Lisbon Treaty’s clear aim to infuse more unity in the EU’s external action through a set of common objectives. Case C-130/10 Parliament v Council [2012] ECR I-0000 (‘Legal Basis for Restrictive Measures’ or ‘LBRM’). ‘From “Don’t Mention the Titanium Dioxide Judgment” to “I Mentioned it Once. the CFSP under the Lisbon Treaty loses its specific objectives. points 62-63. 264 43    . it is not entirely clear how the ECJ might judge whether or not a first pillar measure has encroached upon the CFSP. Both would fall under the general objectives of the Union’s external action. Vol 15 2012-2013 (Oxford and Portland. 269 Article 294 TFEU.

The ECJ seemed to take the CFSP procedure necessary to adopt the basic decision under the EU Treaty as integral to the procedure to adopt the subsequent decision under the TFEU. While the ECJ has thereby not necessarily a priori excluded every combination between the ordinary external action of the EU and the CFSP. 273 Case C-658/11 Parliament v Council [2012] OJ C58/6. police cooperation. it has made such combinations rather unlikely. the adoption of which. without one being secondary to the other. to determine where the centre of gravity of a measure lies ‘all things considered’. A Dashwood. the differences in the procedures applicable under Articles 75 and 215(2) TFEU mean that they cannot form a combined legal basis. calls for unanimous voting in the Council acting alone. recourse to Article 215(2) TFEU.272 The Court has the chance to clarify this issue in a pending action brought by the Parliament against the Council. 169.273 The Parliament takes the view that a Council Decision. requires a previous decision in the sphere of the CFSP.apply Article 40 TEU. Therefore. which entails QMV in the Council and the Parliament’s full participation in the procedure. for the ECJ. para 47. Hence. n 28. covering fields to which the ordinary legislative procedure applies. the Union’s external action system and by extension the Union as a whole appears to be constantly rebuilding the ship on the open sea. arguing for a nuanced approach. Conclusion Rather than merely reshuffling the occasional deck chair. 275 Council Decision 2011/640/CFSP . 277 LBRM. even if the contested regulation does pursue several objectives at the same time or have several components indissociably linked. the ECJ then added: ‘Differences of that kind are such as to render those procedures incompatible’. n 264. if they cannot agree. In addition. [2011] OJ L254/1. pending.274 on the conditions of transfer of suspected pirates and associated seized property from the European Union-led naval force to the Republic of Mauritius and on their conditions after transfer 275 is invalid because it does not relate exclusively to the CFSP. n 264. ‘never able to dismantle it in dry-dock and to reconstruct it there out of the best                                                              271 Compare Eeckhout. 274 On the basis of Art 37 TEU in combination with Art 218(5) and (6) TFEU. the Agreement should have been concluded after obtaining the European Parliament’s consent in accordance with Article 218(6)(a)(v) TFEU.276 Building on Titanium Dioxide. Article 215(2) TFEU entails merely informing the Parliament.271 Perhaps the ECJ ought from now on predominantly to refer to the actual content of a measure instead of its objectives in order to determine its legal basis. 9. 2008) 101. but also to judicial cooperation in criminal matters. The most viable approach is likely to be for the political institutions and. What does the equality of the TEU and TFEU (as per the third paragraph of Article 1 TEU and Article 1(2) TFEU) imply for the possibility of legal instruments based on a combined legal basis in the EU Treaty as regards the CFSP and within the FEU Treaty as regards the ordinary external action of the Union? In Legal Basis for Restrictive Measures. 272 44    .277 In other words. as a general rule. para 48. Salient Features of a Changing Landscape (Cambridge: CUP. the Parliament is arguing that the Council has violated the Treaties by failing to choose the appropriate legal basis for the conclusion of the Agreement. adopted within the CFSP. and development cooperation. the ECJ noted that while Article 75 TFEU provides for the application of the ordinary legislative procedure. 276 LBRM. ‘Article 47 TEU and the relationship between first and second pillar competences’ in A Dashwood and M Maresceau (eds) Law and Practice of EU External Relations. unlike recourse to Article 75 TFEU.

The complexity this involves is. unavoidable. the establishment of the office of the High Representative and of the EEAS are an attempt to bridge the divide between ordinary EU external action and the CFSP. Developments in EU External Relations Law (Oxford: OUP. Yet. As discussed above.280 From its modest beginnings as a customs union (which contains an essential external aspect by requiring the adoption of a common customs tariff in the relations of the Member States with third countries). 282 De Baere. Illinois: The Free Press. Nevertheless.                                                              cf the metaphor by O Neurath. External Relations (London: Sweet & Maxwell. Treaty amendment after Treaty amendment. It does. even in the face of evident structural problems. 84. n 104. EU Foreign Relations Law: Constitutional Fundamentals (Oxford and Portland. 2008). where they remain determined to assert their status as full subjects of the international order. 278 45    . as the tension between the selfconsciousness of the Member States and their constitutional relationship within the Union is especially pronounced in external action. ‘Protocol Sentences’ in AJ Ayer (ed). rebuilding the ship remains a challenge. Furthermore. A Dashwood and C Hillion (eds). The need for the Union’s socio-economic external action to form a part of one unified policy together with the CFSP was elegantly phrased by Dworkin.1959) 201. 2000). Logical Positivism (Glencoe. to a significant degree. The jury is still out on whether the result is a success.282 The Union’s external action therefore operate as a multi-level system. 279 R Dworkin.C. Justice for Hedgehogs (Cambridge MA and London: Belknap/Harvard. M Cremona and B de Witte (eds). if the EU is able to form a common foreign policy and execute it with the economic power of its community giving strength to its united arm. but it cannot be denied that the post-Lisbon institutional system has created opportunities to foster consistency. who saw it as an example of a valuable shift in political boundaries from smaller and more homogeneous political communities to larger and more diverse ones: 279 Both the European nations and the world will gain.281 the Union has come a long way to the current rather impressive array of external policies. 2011) 382. make the Union an often slightly bewildering international actor for third parties as well as for students of EU external action. 280 EP EEAS Study. n 7. the nominal abolition of the pillar structure essentially leaves the former second pillar in place. 281 Art 28 TFEU. Selected further reading M Cremona (ed. 2008). effectiveness.278 At the same time. The General Law of E. the Union has seen a further development of its external competences and an elaboration of its institutional structure for external action. 1.materials’. That is a remarkable feat. however. forms a major obstacle to consistent and efficient external action. OR: Hart Publishing.). most actors in the Union have now realized that the fundamentally different approach to ordinary EU external action on the one hand and the CFSP on the other hand. and continuity in the EU’s external action. I believe. reflecting the uniqueness of the Union as a body organized along federal lines but with fully-fledged States as its component political entities.

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