1. The External Powers of the EU
Tamara Ćapeta
Jean Monnet chair
Faculty of law, university of zagreb
2015

2. Division of powers in external relations
Unlike most federal states, in which external power is exercised by federation, in the EU external power is shared between the EU and its Member States
division of powers between the EU and its Member States is complex and constantly changing
When can EU act in international relations?

3. Legal personality Article 47 TEU :
“The Union shall have legal personality.”
EU has legal personality since Lisbon Treaty
Untill Lisbon treaty, European Communities had legal personality
Legal personality means, among other, that EU is legal subject in international relations

4. Objectives of EU external action
Principles and objectives stated in Article 21 TEU
They relate to the entire EU (supranational and CFSP):
Article 21/3:
“The Union shall respect the principles and pursue the objectives set out in paragraphs 1 and 2 in the development and implementation of the different areas of the Union's external action covered by this Title and by Part Five of the Treaty on the Functioning of the European Union, and of the external aspects of its other policies.”

5. Principle of conferral
EU has powers to regulate only those relations for which Member States have transferred a competence
Applicable also in the field of external powers
To enable the EU to conclude an international agreement, Treaty needs to contain a legal basis which authorizes EU to do so
If the legal basis does not exist, an international agreement concluded by the EU is legally invalid
Choice of legal basis is subject to judicial review

6. Difference ‘ordinary’ external relations and CFSP
Principle of conferral applies to both ‘ordinary’ external relations and the CFSP
International action, including an international treaty signed by the EU must demonstrate legal basis
Procedure for signing, implementation and the legal effect of international agreement within the supranational pillar and the CFSP differ

7. Principle of conferral in international relations
EU can sign an international agreement
When the Treaty expressly grants external powers – express powers
When the Treaty is silent about the possibility of signing an international agreement, but there is a power to regulate this area internally– implied powers
Wide EU powers in international relations , based on the doctrine of implied powers, are largely the result of case-law, starting with the case ERTA (1971.)

8. Codification of case law by the Lisbon Treaty?
Article 216 TFEU
1. 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.

9. Express external powers
Sector-by-sector approach: external aspect today mentioned in different ways in different policy areas, but not in all
Lisbon Treaty has increased number of such areas:
CCP and common customs tariff, agriculture, movement of capital and payments, transport, monetary policy, education and vocational training, culture, public health, trans-European networks, research and technological development, cooperation in the field of environmental protection, development cooperation, humanitarian aid, economic and financial cooperation with third countries, association agreements

10. Implied external powers
Case ERTA:
Existence of external power linked to the adoption of internal measures
Later case-law:
- EU has external power whenever there is an internal power, even if the internal power was not yet exercised (no internal measures were yet adopted)

11. Exclusive or shared power?
Exclusive power – means that Member States have lost the power to regulate certain issue on the international level – the EU only can sign an international agreement
Shared power – means that certain issue may be regulated internationally by both, the EU and the Member States
Shared powers become exclusive in certain situations

12. When is an EU external power exclusive?
When thus provided in the Treaty (eg. customs treaties, CCP, monetary issues for euro countries …)
ERTA – when the EU has enacted internal measures implementing certain policy, the external power is exclusive
Later case-law– additional conditions for the power to become exclusive
If an agreements contains rules which could affect internally adopted common rules (Open Sky cases)
If internal rules largely regulate the area covered by an international agreement (2/91 ILO Convention on Chemicals)
If secondary law provides that the EU will regulate relations with third states (1/03 – Lugano Convention)
Case-law since the mid-1990s: presumption of shared powers

13. Exclusive external powers in Lisbon Treaty
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.”

14. Consequences of the existence of exclusive power
Only EU can in such case negotiate and sign an international agreement
If the Member States entered into agreements within the areas of EU exclusive competence, they have the obligation to cancel such agreements according to the rules of international law
Example: Open skies cases

15. Shared powers – examples
When thus provided by the Treaty
E.g. Article 191/4 TFEU (environment) :
“Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and with the competent international organisations. The arrangements for Union cooperation may be the subject of agreements between the Union and the third parties Concerned.”

16. Shared powers – examples
When the EU has not yet adopted detailed rules in the area covered by an international agreement
When the agreement to be signed regulates issues which fall both under the EU and under the Member State competences (SAAs; 1/78 Natural Rubber Agreement)
When the EU has only power to enact minimum rules, and the Member States are entitled to keep higher standards (1/91 ILO Convention on Chemicals at Work)
When an area is parallelly regulated by both the EU and the MS (e.g. trademarks)

17. Concurrent and Parallel Powers
Shared powers are concurrent powers – this means that Member States’ action is prevented if the EU has signed an international agreement
In certain areas, powers of the EU and the Member States can be exercised simultaneously – parallel powers:
Development policy
Humanitarian aid
Research, space

18. Political importance of shared powers
Justification for conclusion of mixed agreements
Mixed Agreements: international agreements in which both the EU and its Member States appear as a party on the same side of the agreement
Example: all Stabilisation and Association Agreements; TTiP
For entry into force of such agreements, EU and each Member State has to ratify them
Important for states in order to retain international visibility and control international legal commitments

19. Mixed Agreements
EU must conclude an agreement together with its Member States if such agreement relates also to issues for which EU lacks competence
EU may conclude an agreement together with its Member States if it has competence in the area which agreement covers, but such competence is shared with its Member States.
EU may sign such agreements without the participation of Member States as parties

20. Obligation to cooperate
When the power is shared, the EU and the MSs must cooperate
This is sometimes expressly provided for by the Treaty: e.g. Article 210 TFEU (development cooperation)
“1. In order to promote the complementarity and efficiency of their action, the Union and the Member States shall coordinate their policies on development cooperation and shall consult each other on their aid programmes, including in international organisations and during international conferences. They may undertake joint action. Member States shall contribute if necessary to the implementation of Union aid programmes.”

21. Obligation to cooperate
Obligation to cooperate exists even if not expressly provided for in the Treaty
Opinion 1/94:
“108) Next, where it is apparent that the subject-matter of an agreement or convention falls in part within the competence of the Community and in part within that of the Member States, it is essential to ensure close cooperation between the Member States and the Community institutions, both in the process of negotiation and conclusion and in the fulfilment of the commitments entered into. That obligation to cooperate flows from the requirement of unity in the international representation of the Community...”

22. General obligation to cooperate
Article 4/3 TEU:
“Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.”

23. Procedure for signing international agreements
Article 218 TFEU
Actors:
Commission or High Representative: initiate and negotiate
Council: gives negotiating mandate, signs and ratifies internally (by unanimity or qualified majority)
European Parliament – consent or consultation
A priori control by the CJEU – Article 218/11 TFEU

24. EU in international organisations
EU can be a founder of an international organisation, or succeed to the place or parallel to Member States (WTO)
Membership in existing organisations – dependent on the rules of that organisation
Problem – if organisation does not allow for participataion of international organisations UN
Council of Europe – rules modified

25. When EU cannot be a member of an international organisation
Obligation to cooperate and adopt common positions
Opinion 1/13
the Hague Convention on international child abduction
MS are parties; EU is not
if EU is not a party to an international agreement its external competences have to be exercised jointly by Member States
MS have to decide jointly on admitting new state to the agreement
Case C-399/12 Germany v Council (OIV)
if EU is not a member of an international organisation, the Member States who are members have to adopt common position in order not to influence EU internal policies