Robert Schütze Professor of European Law Durham Law School Visiting Professor, LUISS College of Europe, Bruges

EU External Powers EU External Powers – Scope EU External Powers – Nature EU External Procedures, esp. Treaty-Making EU External Powers and the Member States

EU External Competences: Scope Article 21 TEU lists the objectives of EU “foreign policy” and among the Union-specific objectives is: “safeguard its values, fundamental interests, security, independence and integrity”, but also free trade and the eradication of poverty. … but what are the Union competences?

Common Foreign & Security Policy Article 24 TEU here grants the Union “competence in matters of common foreign and security policy [that] shall cover all areas of foreign policy and all questions relating to the Union’s security, including the progressive framing of a common defence policy that might lead to a common defence”.

Common Security & Defence Policy The Common Security and Defence Policy (CSDP) is seen as “an integral part” of the CFSP. What is the scope of the CSDP? The latter “shall provide the Union with an operational capacity”, which the Union may use “on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter”.

CFSP – Substantive Decisions European Security Strategy European “Missions” (civilian/military missions) Restrictive Measures (= Sanctions) against “rogue states” or individuals, especially terrorists

“Special” External Competences

Common Commercial Policy This is the external expression of the Union’s internal market. The Union is here tasked to represent the common commercial interests of the Member States on the international scene and to contribute to “the harmonious development of world trade”.

Original Competence Ex-Article 133 EC [T]he common commercial policy shall be based on uniform principles, particularly in regard to changes in tariff rates, the conclusion of tariff and trade agreements, the achievement of uniformity in measures of liberalization, export policy and measures to protect trade . . .

Development of the CCP

CCP Competence Today Under Article 207 TFEU, the Union is entitled to adopt (unilateral) legislative acts, and to conclude international agreements. The scope of the CCP covers all matters relating to trade in goods and services, commercial aspects of intellectual property, and foreign direct investment. Two Important cases: Opinion 1/75 (exclusive nature) & Opinion 1/78 (regulation of trade)

Trade Agreements & Union Measures WTO Agreement: solely customs duties are recognized as legitimate barriers to international trade; yet only under the condition that they themselves are subjected to the “Most-Favoured- Nation” (MFN) principle. Bilateral Agreements: “Preferential Agreements” (Korea, US?) and “Non-Preferential Agreements (Russia) Unilateral Measures: Anti-Dumping Regulation

Development Aid: General Regime Article 208: “Union policy in the field of development cooperation shall be conducted within the framework of the principles and objectives of the Union’s external action… Union development cooperation policy shall have as its primary objective the reduction and, in the long term, the eradication of poverty.” Article 209 TFEU entitles the Union to adopt legislative measures or conclude international agreements

Development Aid: Budget

Development Aid: ACP Countries On the basis of Article 217 TFEU, the Union has concluded two major development agreements ‘associating’ former colonies: the Lome Convention(s) and the Cotonou Agreement. Since the 1973 accession of the United Kingdom, the regional scope of these conventions covers a number of African, Caribbean and Pacific countries (ACP countries).

European Development Fund

Article 216 TFEU: A Residual Power History: Under the 1957 Rome Treaty, the European Union only enjoyed two express treaty-making powers: one with regard to the Common Commercial Policy, and the other with regard to Association Agreements, but… ERTA (Case 22/70) and the doctrine of implied powers

ERTA The competence to conclude international agreements “arises not only from an express conferment by the Treaty”, “but may equally flow from other provisions of the Treaty and from measures adopted, within the framework of those provisions, by the [Union] institutions” … but this case is badly codified in…

Article 216 TFEU The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope.

Relationship between CFSP and Special TFEU Policies: Article 40 TEU

2. Nature of External Competences

Exclusive Competences (Art. 3) customs union; the establishing of the competition rules necessary for the functioning of the internal market; monetary policy for the Member States whose currency is the euro; the conservation of marine biological resources under the common fisheries policy; common commercial policy.

Shared Competence (Art.4) 2. … Shared competence between the Union and the Member States applies in the following principal areas: internal market; social policy… 4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy…

So, it seems… … that in general, external competences follow the rules of legislative competences, yet there are two exceptions to this rule. First, Article 2 TFEU specifically isolates the Union’s CFSP competence from its ordinary competence categories – an arrangement that suggests a sui generis competence. Second, Article 3 (2) TFEU provides a source of exclusivity for the conclusion of international agreements that goes beyond the competence areas listed in Article 3(1) TFEU.

Subsequently Exclusive Competences Article 3(2) TFEU The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope.

Article 3(2): Three Situations These three situations correspond to three famous cases… Situation 1: where conclusion of an international agreement “is provided for in a legislative act”. This corresponds to the “Opinion 1/94 (WTO) Doctrine”. Situation 2: where this “is necessary to enable the Union to exercise its internal competence”. This codify the “Opinion 1/76 Doctrine” Situation 3: where Union has adopted internal legislation. This codifies the “ERTA Doctrine”.

Union Competences?

3. EU Treaty-Making Procedures Taking a Comparative Look: U.S. Constitution, Article II-Section 2 “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur[.]”

Treaty–Making in the EU Humble Beginnings Treaty-Making = Commission + Council Luns Procedure (1964) Westerterp Procedure (1973) “Stuttgart Declaration” (1983) Treaty Amendments untill Lisbon

Why is this important? The Union legal order adopts – again like the United States – a monist stance vis-à-vis international treaties; and a Union treaty will thus be “equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provisions[.]” What is the democratic legitimation behind this form of “external legislation”?

“Ordinary” Treaty-making Article 218 TFEU The Council shall authorize the opening of negotiations, adopt negotiating directives, authorize the signing of agreements and conclude them.”

Procedural Stages Initiation: Commission or High Representative Negotiations: Council nominates: Commission or HR, but where is the European Parliament? Conclusion Council & Parliament (except for CFSP)

Initiation/Negotiation 3. The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union's negotiating team.

Council Directives Article 218(4) TFEU “The Council may address directives to the negotiator and designate a special committee in consultation with which the negotiations must be conducted.”

Council Conclusion Article 218 (8) TFEU The Council shall act by a qualified majority throughout the procedure. However, it shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of a Union act as well as for association agreements and the agreements referred to in Article 212 with the States which are candidates for accession...

Parliamentary Involvement Article 218(6) TFEU: Except where agreements relate exclusively to the common foreign and security policy, the Council shall adopt the decision concluding the agreement: (a) after obtaining the consent of the European Parliament in the following cases: (i) association agreements… (v) agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required.

CFSP: Article 36 TEU “The High Representative of the Union for Foreign Affairs and Security Policy shall regularly consult the European Parliament on the main aspects and the basic choices of the common foreign and security policy and the common security and defence policy and inform it of how those policies evolve. He shall ensure that the views of the European Parliament are duly taken into consideration.

CFSP Procedural Specificity The central policy maker is the European Council, which identifies the strategic interests and general guidelines for the CFSP. But the Council (here: the Foreign Affairs Council) is the central decision-making body in the CFSP. Voting arrangements Rule: Unanimity (but “constructive abstention”) Exception: QMV (but limit)

CFSP Specificity (2) High Representative of FASP 1. The High Representative of the Union for Foreign Affairs and Security Policy, who shall chair the Foreign Affairs Council, shall contribute through his proposals to the development of the common foreign and security policy ... 2. The High Representative shall represent the Union for matters relating to the common foreign and security policy. He shall conduct political dialogue with third parties on the Union’s behalf and shall express the Union’s position in international organisations and at international conferences.

4. Coordination with the Member States The Union is an open federation. How has the European legal order coordinated the (potentially) dual presence of the Union and its Member States? The Union has followed two mechanisms. The first mechanism is an external one and called mixed agreements. By contrast, a second mechanism is “internal” to the Union and imposes a “duty of cooperation” on the Member States.

Mixed Agreements (1) Definition Mixed agreements = agreements to which both the Union and some or all of its Member States appear as contracting parties.

Mixed Agreements: Reasons Mixed agreements would allow the Union and its Member States to complement their competences. The uncertainty surrounding the nature of the treaty-making powers of non-state actors under international law. Member States insist to participate in their own name so as to remain “visible” on the international scene

Mixed Agreements Problems The widespread use of mixed external action evinces a remarkable Union tolerance towards the Member States’ international powers, as the practice of mixed agreements entails a significant anti-Union consequence: ratification by all Member States requires UNANIMITY! Luxembourg Compromise!

Coordination: Internal EU solution For the Union legal order has employed the duty of cooperation to facilitate the (autonomously) exercise of the Union’s external competences. This facilitating role has been expressed in a positive and a negative manner. The positive aspect of the duty of cooperation may demand that the Member States act as “trustees of the Union interest”. By contrast, the negative aspect of the duty of cooperation can place a limit on the Member States’ exercising their shared external competences.

Positive Aspect: Member States as “Trustees of the Union” Problem: only “States” can participate in some international organisations (e.g. UN, ILO, and previously: ECHR) Solution: Opinion 2/91: ““In this case, cooperation between the [Union] and the Member States is all the more necessary in view of the fact that the former cannot, as international law stands at present, itself conclude an ILO convention and must do so through the medium of the Member States.

Negative Aspect: “Reverse” Subsidiarity Problem: due to the various procedural obstacles in the Union treaty-making power, the Member States might be much quicker in exercising their shared competence. Solution: Court has imposed specific obligations on the Member States. These obligations limit the exercise of their shared powers, and thus – to some extent – mirror and invert the principle of subsidiarity.

Commission v Sweden, Case 246/07 “…that Member States are subject to special duties of action and abstention in a situation in which the Commission has submitted to the Council proposals which, although they have not been adopted by the Council, represent a point of departure for concerted [Union] action”