Constitutional Principles of EU External Relations [1 ed.] 78–0–19–954668–8

Table of contents :
Contents
General Editors’ Preface ix
Foreword xi
Acknowledgements xiii
Abbreviations xxi
Table of Cases xxiii
Table of Legal Instruments and Other Documents xxxi
Introduction 1
PART ONE: EC EXTER NA L R EL ATIONS
1. Conferral 9
1.1 Introduction 9
1.2 Explicit Attribution 11
1.2.1 Th e EC Treaty 11
1.2.2 Th e Treaty of Lisbon 15
1.3 Implied External Relations Competences 16
1.3.1 Introduction 16
1.3.2 Capacity v competence 18
1.3.3 Existence or nature 20
1.3.4 Specifi c competences 21
1.3.5 ERTA-competence 21
1.3.6 Complementarity 23
1.4 General Legal Bases in the EC Treaty and the
Existence of External Competences 29
1.5 Conclusion 31
2. Vertical Confl ict Resolution in EC External Relations:
Exclusivity and Non-exclusivity 33
2.1 Introduction 33
2.2 Confl ict Resolution in Internal Community Matters:
Direct Eff ect, Primacy and the New Legal Order 34
2.3 Confl ict Resolution in Community External Relations:
Exclusivity and Non-exclusivity 38
2.3.1 Introduction 38
2.3.2 Exclusivity 39
2.3.2.1 Th e Treaty itself grants exclusive competence:
a priori exclusivity 39xvi Contents
2.3.2.2 Exclusivity arising out of the exercise of Community
internal competence: the ERTA doctrine 43
2.3.2.3 Exclusivity arising out of internal Community
legislative acts 51
2.3.2.4 Exclusivity arising out of the fact that the
internal and external aspects of the policy area
can only be exercised eff ectively together 52
2.3.2.5 General legal bases in the EC Treaty and exclusive
external competence 58
2.3.2.6 Eff ects of exclusivity 59
2.3.3 Non-exclusivity 61
2.3.3.1 Non-exclusive competence pending exercise of
Community competence 62
2.3.3.2 Non-exclusive competence fl owing from the legal
basis for external action in the Treaty 62
2.3.3.3 Non-exclusive external competence on the basis of
internal Community minimum standards 65
2.3.3.4 Non-exclusive competence in areas where Community
and Member State competence can co-exist 67
2.4 Categories of Competence in the Treaty on the
Functioning of the European Union 67
2.4.1 Exclusive competences 68
2.4.2 Shared competences 70
2.5 Concluding Observations on Primacy and Exclusivity
in Community External Relations 71
3. Th e Community Method 73
3.1 Introduction 73
3.2 Autonomous Measures 74
3.2.1 Initiative stage 74
3.2.2 Decision-making stage 75
3.3 International Agreements 77
3.3.1 Introduction 77
3.3.2 Negotiation 79
3.3.3 Signature 83
3.3.4 Conclusion 84
3.3.5 Suspension (and termination) 89
3.3.6 Decision-making in a body set up by an
international agreement 90
3.4 Implementation Stage 91
3.5 Th e Court of Justice in Community External Relations 93
3.6 Conclusions 96xvii Contents
PA RT T WO: THE COMMON FOR EIGN A ND
SECUR IT Y POLICY
4. Th e CFSP in Contrast with EC External Relations 101
4.1 Introduction 101
4.2 Conferral 101
4.2.1 Th e EU Treaty 101
4.2.2 ‘All areas’ and the vertical and horizontal questions 106
4.2.3 Th e Constitution and the Treaty of Lisbon 108
4.3 CFSP Decision-Making Compared With the Community Method 112
4.3.1 Introduction 112
4.3.2 CFSP legal instruments for autonomous action 113
4.3.2.1 Introduction 113
4.3.2.2 Common strategies 113
4.3.2.3 Joint actions 115
4.3.2.4 Common positions 118
4.3.2.5 Sui generis instruments 119
4.3.2.6 Enforceability 122
4.3.2.7 Legal instruments for the CFSP under the Constitution
and the Treaty of Lisbon 122
4.3.2.8 Concluding remarks on CFSP legal instruments 123
4.3.3 CFSP decision-making 125
4.3.3.1 Introduction 125
4.3.3.2 An enhanced role for the European Council 125
4.3.3.3 Th e decision-making process: autonomous measures 128
4.3.3.4 Th e decision-making process: international agreements 138
4.3.4 Implementation of CFSP acts 146
4.3.4.1 General framework 146
4.3.4.2 Implementing the ESDP 150
4.4 Conclusions 157
5. Democracy and the Rule of Law in EU Foreign Policy 159
5.1 Introduction 159
5.2 Legitimacy, Accountability, and Democracy
in EU Foreign Policy 161
5.2.1 Th e European Parliament 161
5.2.2 National parliaments and EU foreign policy 167
5.2.3 Foreign policy and open government 169
5.3 Th e Rule of Law in the CFSP 176
5.3.1 Introduction 176
5.3.2 Th e Court of Justice of the European
Communities and the CFSP 177
5.3.2.1 Scope for judicial control under existing constitutional
arrangements 177
5.3.2.2 Th e Treaty of Lisbon 189xviii Contents
5.4 Conclusions 191
6. Th e Dichotomy between EC External Relations and the CFSP 201
6.1 Introduction 201
6.2 Th e CFSP and the ‘New Legal Order’ 201
6.3 Changes Proposed by the Constitution and the Treaty of Lisbon 209
6.3.1 Legal order 209
6.3.2 From Union Minister for Foreign Aff airs to High
Representative of the Union for Foreign Aff airs
and Security Policy 213
6.4 By way of Conclusion: No Salvation
without Communitarization? 219
PA RT THR EE: M A NAGING THE V ERTICA L A ND
HOR IZONTA L A X ES
7. Managing the Vertical Axis 231
7.1 Introduction 231
7.2 Mixity 231
7.2.1 Introduction 231
7.2.2 Mixed agreements 232
7.2.2.1 Negotiation 238
7.2.2.2 Signature and ratifi cation 239
7.2.2.3 Implementation and international responsibility 241
7.2.2.4 Partially mixed agreements 245
7.2.3 Mixed representation in international organizations 246
7.3 Vertical Consistency through Loyal Cooperation 250
7.3.1 Introduction 250
7.3.2 Loyalty in the Community 252
7.3.3 Loyalty in the Union 259
7.3.4 Loyalty under the Treaty of Lisbon 262
7.4 Conclusions 264
8. Managing the Horizontal Axis 267
8.1 Introduction 267
8.2 Horizontal Consistency or Divide et Impera? Th e
Relationship Between Community External
Relations and the CFSP 267xix Contents
8.3 Two Border Quarrels 274
8.3.1 Th e Yusuf and Kadi Cases 275
8.3.2 Th e Small Arms and Light Weapons Case 283
8.4 ‘Cross-Pillar Mixity’? 294
8.5 Conclusions 298
PA RT FOUR: CONCLUSIONS
Conclusions 307
Th e Constitutional Particularities of EU Foreign Policy 307
EU Foreign Policy, Identity, and Law 312
Bibliography 316
Index 333

Citation preview

OX FOR D S T U DI E S I N EU ROPE A N L AW General Editors: PAUL CR AIG AND GR ÁINNE DE BÚRCA

Constitutional Principles of EU External Relations

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Constitutional Principles of EU External Relations GE E RT DE BA E R E

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Great Clarendon Street, Oxford OX2 6DP Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Th ailand Turkey Ukraine Vietnam Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York © Geert De Baere, 2008 The moral rights of the author have been asserted Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Database right Oxford University Press (maker) First published 2008 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer British Library Cataloguing in Publication Data Data available Library of Congress Cataloging in Publication Data Baere, G. de. Constitutional principles of EU external relations / Geert de Baere. p. cm. Includes bibliographical references and index. ISBN 978–0–19–954668–8 (alk. paper) 1. European Union countries—Foreign relations—Law and legislation. 2. European Union countries—Defenses. 3. Constitutional law— European Union countries. 4. Treaty on European Union (1992). Protocols, etc., 1997 Oct. 2. I. Title. KJE5105.B34 2008 342.24'0412—dc22 2008036905 Typeset by Newgen Imaging Systems (P) Ltd., Chennai, India Printed in Great Britain on acid-free paper by CPI Antony Rowe, Chippenham, Wiltshire ISBN 978–0–19–954668–8 1 3 5 7 9 10 8 6 4 2

Opgedragen in dankbare herinnering aan mijn moeder, Greet Wellens (1941–2006)

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πλιν δε . . . ταu~τα λγν [sc. δε~ι] παραλαβu~σαν, νμν θεμε´νην, αU= τl~ τε = μιλε~ιν και` τα~ις A
´λλαις πλεσιν. the polis . . . should make reason into a law for itself and be guided thereby both internally and in its relations with other poleis. Plato, Laws, Book I, 645b.

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General Editors’ Preface The area of external relations of the European Union, sometimes referred to as international or foreign relations, has been a significant growth area in recent years. But as the EU continues to develop and advance its role as a global actor, moving beyond the established fields of trade, development and cooperation policy to embrace many other important areas including aspects of foreign and security policy, the challenges posed by the complicated legal and decision-making framework for EU external relations become all the more evident. The law of EC external relations has always been complex, even arcane, on account of the division of powers between the Community on the one hand and the member states on the other, involving confusing typologies of exclusive, shared, concurrent and complementary competences. But it has grown even more confusing with the emergence of the three-pillar structure of the Union following the Maastricht Treaty, as different sets of institutional and decision-making rules govern foreign relations under each of the pillars. Geert De Baere’s book tackles this challenging legal terrain by analysing the relationship between two significant areas of EU law: the supposed generality of its constitutional legal framework on the one hand, and the supposed specificity of its external relations on the other. His aim is to consider how the complex and multifaceted field of external relations fits into the constitutional framework of EU law. In a carefully structured and rigorously argued book, he examines the extent to which and the way in which the familiar constitutional law of the EU applies in the field of foreign policy. Taking the aspects of constitutional law which are most relevant to the area of external relations, he considers the principle of conferred power, the principle of primacy/supremacy, and the Community method of decision-making. The book is divided into two parts, the first part focusing on Community external relations under the first pillar, and the second part focusing on the common foreign and security policy under the second pillar. This enables him to contrast the way in which the same constitutional principles and rules apply to the law governing external relations under each of the two pillars. The book is carefully and comprehensively researched, and contains a wealth of information about the operation of EU external relations law, in particular under the first and second pillars. It comprises thoughtful analysis and reflection on the shortcomings and trends within these areas, and ultimately suggests that the overall trend is not to ‘communautairize’ EU foreign policy, but rather to bring EU foreign relations gradually within the realm and the rule of law.

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General Editors’ Preface

Overall the book therefore addresses an important and challenging set of questions for EU lawyers and scholars more generally. It should be of interest to all those concerned with the global role and identity of the EU, in particular to legal scholars and practitioners of EU law who are interested in foreign relations. Paul Craig Gráinne de Búrca

September 2008

Foreword There are some concepts, within EU law, that are more existential than others. Most of us can understand the essential principles behind the single market and, against that background, appreciate the significance of the four freedoms. The topic that Geert De Baere addresses here is at the opposite end of the accessibility spectrum. As he truly states, ‘Legal reflections on European Union foreign policy such as those contained in this book face the problem of dealing with two sui generis concepts: the EU, and foreign policy. The EU cannot be fitted easily within either constitutional or international law, and foreign policy has frequently been claimed to escape any grasp of law.’ Moreover, in order to address the question of how foreign policy fits within the constitutional structures of the EU, Geert De Baere has to grapple simultaneously with the division of external relations competences between the EU and its constituent Member States (a division that he terms ‘the vertical axis’) and with the further division between the Community competences of the ‘first pillar’ and the common foreign and security policy (‘CFSP’) competences of the ‘second pillar’ (the ‘horizontal axis’). In this study, Geert De Baere sets himself a formidable list of rather difficult questions to answer. Even within the first pillar, external relations are treated rather differently from ordinary ‘internal’ policies. How do the principles of conferral and primacy and the Community method of decision-making operate within Community external relations, as compared to their operation with respect to internal Community policies? Why are external relations under the second pillar so different from everything else that the EU attempts to do? Why (and to what extent) does that justify different institutional arrangements (in particular, a lesser degree of democratic accountability and a striking absence of judicial supervision)? What happens to conferral, primacy (in its more typical expression of exclusivity), and decision-making when we move from the first pillar to the second? Does the second pillar already form part of the ‘new legal order’ established by the EC Treaty and famously proclaimed by the Court in Van Gend en Loos? Would the Constitution—and will the Treaty of Lisbon—move the CFSP in the direction of communitarization? Throughout his meticulous analysis, Geert De Baere does not shy away from asking awkward questions in his turn (even if he puts them with extreme courtesy and diffidence). He highlights the lack of proper involvement by the European Parliament and the dominant role played by the Council (already significant within the first pillar; and noticeably more pronounced within the second pillar). He points, for example, to the lack of a legal remedy if a CFSP measure has an impact on individuals without having to be implemented by either a Community act or a Member State act that would be challengeable. He wonders whether the

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Foreword

apparent impossibility of reconsidering the Court of Justice’s role in the CFSP (yoked as it appears to be to the debate on the extension of the Community method of decision-making to the CFSP) should really mean that more moderate possibilities (such as a limited judicial review or a procedural review within the second pillar) remain unconsidered. The label ‘foreign policy’ still implies substantial limits on the operation of such core principles as accountability, the rule of law, and human rights (within the first pillar and even more within the second)—whilst these differences are to some extent justified, are they really as unassailable as is often presumed? How much of the problem stems from the underlying disjuncture between external economic relations (such as external trade, development cooperation, and economic aid), falling within the first pillar, and ‘high politics’ (diplomatic activity and security and defence issues), falling within the CFSP? Geert De Baere provides both an analysis of the constitutional reality of EU foreign policy and a series of critical theoretical reflections, whilst suggesting possibilities for reform. This is a thoughtful and intellectually rigorous study. It will be of value to anyone who is prepared to invest the necessary time and effort to get to grips with this complex, difficult, and sensitive area of the EU’s activities. Eleanor Sharpston Advocate General at the Court of Justice of the European Communities

Acknowledgements This book is an edited, updated, and revised version of my doctoral dissertation, defended at the University of Cambridge on 25 April 2007. I am indebted to many people whose help has been indispensable during the process of writing my dissertation and making the necessary revisions for its publication as a book. Professor Alan Dashwood CBE, who supervised my doctoral research, shared his immense knowledge and experience in the area with me very fully and generously. Most of what I know about EU external relations law, I learnt from him. Being examined by Professor Piet Eeckhout and Professor Christophe Hillion was both an honour and a pleasure. The Kenneth Polack Studentship at King’s College, Cambridge, the Arts and Humanities Research Council, and the Cambridge European Trust together provided funding for my doctoral project. The Modern Law Review Scholarship funded my research at Columbia Law School. The Research Awards Committee of the Board of Graduate Studies of the University of Cambridge and King’s College, Cambridge funded my final term in Cambridge. Advocate General Eleanor Sharpston QC was a great support throughout my time in Cambridge. It is a privilege now to work in her chambers at the Court of Justice in Luxembourg. Professor Philip Allott FBA and Professor Johan Meeusen provided the all-important inspiration and encouragement in conceiving the doctoral project. Professor Catherine Barnard, Dr William Burgwinkle, Dr Loraine Gelsthorpe, and Ms Penny Hayman were an immense support at crucial moments. Professor George Bermann and the people at the European Legal Studies Center in particular and at Columbia Law School in general provided a very pleasant temporary base during my all too short stay in New York City during the summer and autumn of 2005. Dr Gwen Booth and Ms Bethan Cousins at Oxford University Press, as well as the copy-editor, Mr Gary Hill and the proof reader Ms Margaret Humbert, have been as efficient as they have been kind and patient. Many people within and outside King’s College and the Cambridge Faculty of Law, but equally across the Channel in Belgium, have provided inspiration, advice, and encouragement. Some have read and commented on various draft excerpts of my doctoral dissertation. Others have been available for various conversations on topics related to my dissertation or have provided me with invaluable references to further research material. Still others have just been there to listen to my endless perorations about my dissertation or anything vaguely related to it; though an honest application of that criterion would possibly require me to include everyone I met for more than two minutes during the last five years. Space prevents me from mentioning everyone I would like to thank personally, and I am aware that I am committing many a sin of omission, but I want to extend my special thanks to Dr Shantanu Agrawal, Dr Albertina Albors-Llorens, Professor John Bell QC, FBA, Dr May Chiu, Professor James Crawford SC, FBA,

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Acknowledgements

Professor Guido De Baere SJ, Ms Maria de la Riva, Dr Sally Gore, Mr Brooks Hickman, Ms Alison Hirst, Ms Cath Howdle, Mr Angus Johnston, Mr Daniel Joyce, Judge Koen Lenaerts, the Rev. Richard Lloyd-Morgan, Dr Jonathan Mannering, Mr Henry Mares, Professor Susan Marks, Dr Delphine Mordey, Dr Alex Mills, Dr Roger O’Keefe, Dr Amanda Perreau-Saussine, Dr Emile Perreau-Saussine, Mr Jacob Rowbottom, Mr Joost Saveniers, Dr Andrej Savin, Dr David Scannell, Professor Joanne Scott, Mr Dennis Seeldrayers, Dr François Soyer, Dr Eleanor Spaventa, Dr Neta Spiro, Dr Nikolas Stürchler, Ms Kimberley Trapp, Dr Mark Turner, Dr Isabelle Van Damme, Mr Jan Van den Bossche, Mr Emmanuel Van de Putte, Dr Owain Vaughan, Ms Lutgart Wellens, and Ms Margaret Young. Finally, I could not have wished for more loving and encouraging parents: Mr and Mrs Hugo and Greet De Baere-Wellens. Bedankt, mama en papa. GDB

Antwerp and Luxembourg Easter 2008

Contents General Editors’ Preface Foreword Acknowledgements Abbreviations Table of Cases Table of Legal Instruments and Other Documents Introduction

ix xi xiii xxi xxiii xxxi 1

PA RT ON E: EC E X T E R N A L R E L AT IONS 1. Conferral 1.1 Introduction 1.2 Explicit Attribution 1.2.1 The EC Treaty 1.2.2 The Treaty of Lisbon

1.3 Implied External Relations Competences 1.3.1 1.3.2 1.3.3 1.3.4 1.3.5 1.3.6

Introduction Capacity v competence Existence or nature Specific competences ERTA-competence Complementarity

1.4 General Legal Bases in the EC Treaty and the Existence of External Competences 1.5 Conclusion

2. Vertical Conflict Resolution in EC External Relations: Exclusivity and Non-exclusivity 2.1 Introduction 2.2 Conflict Resolution in Internal Community Matters: Direct Effect, Primacy and the New Legal Order 2.3 Conflict Resolution in Community External Relations: Exclusivity and Non-exclusivity 2.3.1 Introduction 2.3.2 Exclusivity 2.3.2.1 The Treaty itself grants exclusive competence: a priori exclusivity

9 9 11 11 15 16 16 18 20 21 21 23 29 31

33 33 34 38 38 39 39

Contents

xvi

2.3.2.2 Exclusivity arising out of the exercise of Community internal competence: the ERTA doctrine 2.3.2.3 Exclusivity arising out of internal Community legislative acts 2.3.2.4 Exclusivity arising out of the fact that the internal and external aspects of the policy area can only be exercised eff ectively together 2.3.2.5 General legal bases in the EC Treaty and exclusive external competence 2.3.2.6 Eff ects of exclusivity 2.3.3 Non-exclusivity 2.3.3.1 Non-exclusive competence pending exercise of Community competence 2.3.3.2 Non-exclusive competence flowing from the legal basis for external action in the Treaty 2.3.3.3 Non-exclusive external competence on the basis of internal Community minimum standards 2.3.3.4 Non-exclusive competence in areas where Community and Member State competence can co-exist

2.4 Categories of Competence in the Treaty on the Functioning of the European Union 2.4.1 Exclusive competences 2.4.2 Shared competences

2.5 Concluding Observations on Primacy and Exclusivity in Community External Relations 3. The Community Method 3.1 Introduction 3.2 Autonomous Measures 3.2.1 Initiative stage 3.2.2 Decision-making stage

3.3 International Agreements 3.3.1 3.3.2 3.3.3 3.3.4 3.3.5 3.3.6

Introduction Negotiation Signature Conclusion Suspension (and termination) Decision-making in a body set up by an international agreement

3.4 Implementation Stage 3.5 The Court of Justice in Community External Relations 3.6 Conclusions

43 51

52 58 59 61 62 62 65 67 67 68 70 71 73 73 74 74 75 77 77 79 83 84 89 90 91 93 96

Contents

xvii

PA RT T WO: T H E C OM MON FOR E IGN A N D SE C U R I T Y P OL IC Y 4. The CFSP in Contrast with EC External Relations 4.1 Introduction 4.2 Conferral

101

5. Democracy and the Rule of Law in EU Foreign Policy 5.1 Introduction 5.2 Legitimacy, Accountability, and Democracy in EU Foreign Policy

159

101 101 4.2.1 The EU Treaty 101 4.2.2 ‘All areas’ and the vertical and horizontal questions 106 4.2.3 The Constitution and the Treaty of Lisbon 108 4.3 CFSP Decision-Making Compared With the Community Method 112 4.3.1 Introduction 112 4.3.2 CFSP legal instruments for autonomous action 113 4.3.2.1 Introduction 113 4.3.2.2 Common strategies 113 4.3.2.3 Joint actions 115 4.3.2.4 Common positions 118 4.3.2.5 Sui generis instruments 119 4.3.2.6 Enforceability 122 4.3.2.7 Legal instruments for the CFSP under the Constitution and the Treaty of Lisbon 122 4.3.2.8 Concluding remarks on CFSP legal instruments 123 4.3.3 CFSP decision-making 125 4.3.3.1 Introduction 125 4.3.3.2 An enhanced role for the European Council 125 4.3.3.3 The decision-making process: autonomous measures 128 4.3.3.4 The decision-making process: international agreements 138 4.3.4 Implementation of CFSP acts 146 4.3.4.1 General framework 146 4.3.4.2 Implementing the ESDP 150 4.4 Conclusions 157

5.2.1 The European Parliament 5.2.2 National parliaments and EU foreign policy 5.2.3 Foreign policy and open government

5.3 The Rule of Law in the CFSP 5.3.1 Introduction 5.3.2 The Court of Justice of the European Communities and the CFSP 5.3.2.1 Scope for judicial control under existing constitutional arrangements 5.3.2.2 The Treaty of Lisbon

159 161 161 167 169 176 176 177 177 189

Contents

xviii

5.4 Conclusions 6. The Dichotomy between EC External Relations and the CFSP 6.1 Introduction 6.2 The CFSP and the ‘New Legal Order’ 6.3 Changes Proposed by the Constitution and the Treaty of Lisbon 6.3.1 Legal order 6.3.2 From Union Minister for Foreign Affairs to High Representative of the Union for Foreign Affairs and Security Policy

6.4 By way of Conclusion: No Salvation without Communitarization?

191 201 201 201 209 209

213 219

PA RT T H R E E : M A N AGI NG T H E V E RT IC A L A N D HOR I Z ON TA L A X E S 7. Managing the Vertical Axis 7.1 Introduction 7.2 Mixity 7.2.1 Introduction 7.2.2 Mixed agreements 7.2.2.1 Negotiation 7.2.2.2 Signature and ratification 7.2.2.3 Implementation and international responsibility 7.2.2.4 Partially mixed agreements 7.2.3 Mixed representation in international organizations

7.3 Vertical Consistency through Loyal Cooperation 7.3.1 7.3.2 7.3.3 7.3.4

Introduction Loyalty in the Community Loyalty in the Union Loyalty under the Treaty of Lisbon

7.4 Conclusions 8. Managing the Horizontal Axis 8.1 Introduction 8.2 Horizontal Consistency or Divide et Impera? The Relationship Between Community External Relations and the CFSP

231 231 231 231 232 238 239 241 245 246 250 250 252 259 262 264 267 267

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Contents

8.3 Two Border Quarrels 8.3.1 The Yusuf and Kadi Cases 8.3.2 The Small Arms and Light Weapons Case

8.4 ‘Cross-Pillar Mixity’? 8.5 Conclusions

xix 274 275 283 294 298

PA RT FOU R : C ONC LUSIONS Conclusions The Constitutional Particularities of EU Foreign Policy EU Foreign Policy, Identity, and Law

307 312

Bibliography Index

316 333

307

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Abbreviations ACP AETR (ERTA)

AG CAP CCP CFP CFSP CHODs COREPER CSDP CYELP CYELS DTC EC ECOWAS ECSC

EDA EDC EEAS EEC

EMU ENP EPC ERTA (AETR)

ESDP EU EUMC EUMS

African, Caribbean and Pacific states Accord européen relatif au travail des équipages des véhicules effectuant des transports internationaux par route (European Agreement Concerning the Work of Crews of Vehicles Engaged in International Road Transport) Advocate General at the Court of Justice of the European Communities Common Agricultural Policy Common Commercial Policy Common Fisheries Policy Common Foreign and Security Policy Chiefs of Defence Comité des représentants permanents (Permanent Representatives Committee) Common Security and Defence Policy Croatian Yearbook of European Law & Policy Cambridge Yearbook of European Legal Studies Draft Treaty establishing a Constitution for Europe European Community or (after Article number) Treaty establishing the European Community Economic Community of West African States European Coal and Steel Community or (after Article number) Treaty establishing the European Coal and Steel Community European Defence Agency European Defence Community European External Action Service European Economic Community or (after Article number) Treaty establishing the European Economic Community Economic and Monetary Union European Neighbourhood Policy European Political Cooperation European Agreement concerning the Work of Crews of Vehicles Engaged in International Road Transport (Accord européen relatif au travail des équipages des véhicules effectuant des transports internationaux par route) European Security and Defence Policy European Union or (after Article number) Treaty on European Union European Union Military Committee European Union Military Staff

xxii EURATOM

FAO GATS GATT HRCFSP HRUFASP ICJ IGC ILO JHA KEDO MERCOSUR Milreps NGO OECD OJ PCIJ PJCCM PoCo PSC QMV RPC RPCJEC RPEP SEA TACIS TC TFEU TRIPS UMFA UN UNCLOS UNITA USA WAEMU WEU WHO WMD WTO YEL

Abbreviations European Atomic Energy Community or (after Article number) Treaty establishing the European Atomic Energy Community Food and Agricultural Organisation of the United Nations General Agreement on Trade in Services General Agreement on Tariffs and Trade High Representative for the common foreign and security policy High Representative of the Union for Foreign Affairs and Security Policy International Court of Justice Intergovernmental Conference International Labour Organisation Justice and Home Affairs Korean Peninsula Energy Development Organisation Mercado Común del Sur (Southern Common Market) Military representatives Non-governmental Organisation Organisation for Economic Co-operation and Development Official Journal of the European Union Permanent Court of International Justice Police and Judicial Cooperation in Criminal Matters Political Committee Political and Security Committee Qualified majority voting Rules of Procedure of the Council Rules of Procedure of the Court of Justice Rules of Procedure of the European Parliament Single European Act Technical Aid to the Commonwealth of Independent States Treaty establishing a Constitution for Europe Treaty on the Functioning of the European Union Agreement on Trade-Related Aspects of Intellectual Property Rights Union Minister for Foreign Affairs United Nations United Nations Convention on the Law of the Sea National Union for the Total Independence of Angola United States of America West African Economic and Monetary Union Western European Union World Health Organisation Weapons of Mass Destruction World Trade Organisation Yearbook of European Law

Table of Cases C OU RT OF J U S T IC E OF T H E E U ROPE A N C OM M U N I T I E S Cases Case 8/55 Fédération Charbonnière de Belgique v High Authority of the European Coal and Steel Community [1954–1956] ECR 292 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Case 25/62 Plaumann v Commission [1963] ECR 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Case 26/62 NV Algemene Transport- en Expeditie Onderneming Van Gend & Loos v Nederlandse Administratie der Belastingen [1963] ECR 1 . . . . . . .21, 34–35, 38, 202, 279 Case 6/64 Flaminio Costa v ENEL [1964] ECR 585 . . . . . . . . . . . . . . . . . . . . . . . . . . .36, 201, 211 Joined Cases 6/69 and 11/69 Commission v France [1969] ECR 523 . . . . . . . . . . . . . . . . . . . . . 253 Case 22/70 Commission v Council [1971] ECR 263 . . . . . . . . . . . . . . 3, 18–24, 27–30, 41, 43–46, 48–50, 59, 61–64, 66, 70–71, 89, 178, 185, 241, 254, 256, 265 Case 167/73 Commission v France [1974] 359 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 Case 181/73 Haegeman v Belgium [1974] ECR 449 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242 Case 8/74 Procureur du Roi v Benoît et Gustave Dassonville [1974] ECR 837 . . . . . . . . . . . . . . . . 41 Joined Cases 3, 4 and 6/76, Cornelis Kramer and others [1976] ECR 1279 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 23–25, 42, 59–60, 254 Case 41/76 Suzanne Criel, née Donckerwolcke and Henri Schou v Procureur de la République au tribunal de grande instance de Lille and Director General of Customs [1976] ECR 1921 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36–37 Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Case 804/79 Commission v United Kingdom [1981] ECR 1045 . . . . . . . . . . . . . . . . . . . . 25, 42, 60 Case 104/81 Hauptzollamt Mainz v C.A. Kupferberg & Cie KG a.A. [1982] ECR 3641 . . . . . . . 89 Case 230/81 Luxembourg v European Parliament [1983] ECR 255 . . . . . . . . . . . . . . . . . . 254, 260 Case 191/82 EEC Seed Crushers’ and Oil Processors’ Federation (FEDIOL) v Commission [1983] ECR 2913 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 Case 14/83 Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen [1984] ECR 1891 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207 Case 294/83 Parti écologiste «Les Verts» v European Parliament [1986] ECR 1339 . . . . . . . . . . . 184 Case 44/84 Derrick Guy Edmund Hurd v Kenneth Jones (Her Majesty’s Inspector of Taxes) [1986] ECR 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Case 222/84 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Case 187/85 EEC Seed Crushers’ and Oil Processors’ Federation (Fediol) v Commission [1988] ECR 4155 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 Joined Cases 281/85, 283-285/85 and 287/85 Germany and others v Commission [1987] ECR 3203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 17 Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECR 4199 . . . . . . . . . . . . . 180, 184–5 Case 12/86 Meryem Demirel v Stadt Schwäbisch Gmünd [1987] ECR 3719. . . . . . . . . . 235, 242–3 Case 45/86 Commission v Council [1987] ECR 1493 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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Case 121/86 Anonymos Etaireia Epichirisseon Metalleftikon Viomichanikon kai Naftiliakon AE and others v Council [1989] ECR 3919 . . . . . . . . . . . . . . . . . . . . . . . . . . . 197–8 Case 204/86 Greece v Council [1988] ECR 5323. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255 Joined Cases C-51/89, C-90/89 and C-94/89 United Kingdom, France and Germany v Council [1991] ECR I–2757 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 32 Case C-192/89 S. Z. Sevince v Staatssecretaris van Justitie [1990] ECR I–3461 . . . . . . . . . . . . . . 91 Case C-300/89 Commission v Council [1991] ECR I–2867 . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 295 Case C-97/91 Oleificio Borelli SpA v Commission [1992] ECR I–6313 . . . . . . . . . . . . . . . . . . . 184 Case C-155/91 Commission v Council [1993] ECR I–939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 Joined Cases C-181/91 and C-249/91 European Parliament v Council and Commission [1993] ECR I–3685. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .63, 178, 289 Case C-188/91 Deutsche Shell AG v Hauptzollamt Hamburg-Harburg [1993] ECR I–363 . . . . . 91 Case C-314/91 Beate Weber v European Parliament [1993] ECR I–1093 . . . . . . . . . . . . . . . . . . 184 Case C-316/91 European Parliament v Council [1994] ECR I–625 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 61, 63, 178, 244, 269, 289–90 Case C-327/91 France v Commission [1994] ECR I–3641. . . . . . . . . . . . . . . . . . . . . . . . .78, 85, 89 Case C-65/93 European Parliament v Council [1995] ECR I–643 . . . . . . . . . . . . . . . . . . . . . . 255 Case C-473/93 Commission v Luxemburg [1996] ECR I–3207 . . . . . . . . . . . . . . . . . . . . . . . . . 252 Case C-25/94 Commission v Council [1996] ECR I–1469 . . . . . . . . . . . . . . . . . . . .239, 248–9, 255 Case C-58/94 Netherlands v Council [1996] ECR I–2169 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 Case C-70/94 Fritz Werner Industrie-Ausrüstungen GmbH v Germany [1995] ECR I–3189 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .198, 283, 301 Case C-120/94 Commission v Greece, removed from the register [1996] ECR I–1513 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182, 194–5 Case C-167/94 Criminal proceedings against Juan Carlos Grau Gomis and others [1995] ECR I–1023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212 Case C-268/94 Portugal v Council [1996] ECR I–6177 . . . . . . . . . . . . . . . . . 237–8, 257, 286, 291 Case C-28/95 A. Leur-Bloem v Inspecteur der Belastingdienst/Ondernemingen Amsterdam 2 [1997] ECR I–4161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243 Case C-57/95 France v Commission [1997] ECR I–1627 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 Case C-84/95 Bosphorus Hava Yollari Turizm ve Ticaret AS v Ministry for Transport, Energy and Communications, Ireland and the Attorney General [1996] ECR I–3953 . . . . . . . . 95 Case C-122/95 Germany v Council [1998] ECR I–973 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 Case C-124/95 The Queen, ex parte Centro-Com Srl v HM Treasury and Bank of England [1997] ECR I–81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302 Case C-130/95 Bernd Giloy v Hauptzollamt Frankfurt am Main-Ost [1997] ECR I–4291 . . . . 243 Case C-177/95 Ebony Maritime SA and Loten Navigation Co. Ltd v Prefetto della Provincia di Brindisi and others [1997] ECR I–1111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Case C-299/95 Kremzow [1997] ECR I–2629 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 Case C-53/96 Hermès International v FHT Marketing Choice [1998] ECR I–3603 . . . . 242–4, 266 Case C-149/96 Portugal v Council [1999] ECR I–8395 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Case C-162/96 A. Racke GmbH & Co. v Hauptzollamt Mainz [1998] ECR I–3655 . . . . . . . 89–90 Case C-170/96 Commission v Council [1998] ECR I–2763 . . . . . . . . . . . . . . . . 177–9, 205, 268–9, 285, 289–91, 293 Case C-386/96 P Dreyfus v Commission [1998] ECR I–2309 . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Joined cases C-10/97 to C-22/97 Ministero delle Finanze v IN.CO.GE.’90 Srl, Idelgard Srl, Iris’90 Srl, Camed Srl, Pomezia Progetti Appalti Srl (PPA), Edilcam Srl, A. Cecchini & C. Srl, EMO Srl, Emoda Srl, Sappesi Srl, Ing. Luigi Martini Srl, Giacomo Srl and Mafar Srl. [1998] ECR I–6307 . . . . . . . . . . . . . . . . . .37, 72 Case C-42/97 European Parliament v Council [1999] ECR I–869 . . . . . . . . . . . . . . . . . . . . . . 295 Joined cases C-164/97 and C-165/97 European Parliament v Council [1999] ECR I–1139 . . . . 295

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Case C-189/97 European Parliament v Council ECR [1999] I–4741 . . . . . . . . . . . . . . . . . . . . . . 87 Case C-273/97 Angela Maria Sirdar v The Army Board and Secretary of State for Defence [1999] ECR I–7403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196 Case C-36/98 Spain v Council [2001] ECR I–779 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 Case C-62/98 Commission v Portugal [2000] ECR I–5171 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198 Joined Cases C-300/98 and C-392/98 Parfums Christian Dior SA v Tuk Consultancy BV (C-300/98) and Assco Gerüste GmbH, Rob van Dijk, trading as Assco Holland Steigers Plettac Nederland v Wilhelm Layher GmbH & Co KG, Layher BV (C-392/98) [2000] ECR I–11307 . . . . . . . . . . . 242–3, 254 Case C-376/98 Germany v European Parliament and Council [2000] ECR I–8419. . . . . . . . . . . 32 Case C-466/98 Commission v United Kingdom [2002] ECR I–9427 . . . . . . 18, 20, 29, 40, 47–51, 56–57, 60, 64, 69, 96 Case C-467/98 Commission v Denmark [2002] ECR I–9519 . . . . . . .18, 20, 29, 40, 47–51, 56–57, 60, 64, 69, 96 Case C-468/98 Commission v Sweden [2002] ECR I–9575 . . . . . . . .18, 20, 29, 40, 47–51, 56–57, 60, 64, 69, 96 Case C-469/98 Commission v Finland [2002] ECR I–9627 . . . . . . . .18, 20, 29, 40, 47–51, 56–57, 60, 64, 69, 96 Case C-471/98 Commission v Belgium [2002] ECR I–9681 . . . . . . . .18, 20, 29, 40, 47–51, 56–57, 60, 64, 69, 96 Case C-472/98 Commission v Luxembourg [2002] ECR I–9741 . . . . . . . . . . 18, 20, 29, 40, 47–51, 56–57, 60, 64, 69, 96 Case C-475/98 Commission v Austria [2002] ECR I–9797 . . . . . . . . .18, 20, 29, 40, 47–51, 56–57, 60, 64, 69, 96 Case C-476/98 Commission v Germany [2002] ECR I–9855 . . . . . . . . . . . . 18, 20, 29, 40, 47–51, 56–57, 60, 64, 69, 96 Case C-1/99 Kofisa Italia Srl v Ministero delle Finanze, Servizio della Riscossione dei Tributi – Concessione Provincia di Genova – San Paolo Riscossioni Genova SpA [2001] ECR I–207 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Case C-424/99 Commission v Austria [2001] ECR I–9285 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Case C-13/00 Commission v Ireland [2001] ECR I–2943 . . . . . . . . . . . . . . . . . . . . . . . . . 241, 243 Case C-50/00 P, Unión de Pequeños Agricultores v Council [2002] ECR I–6677 . . . . . . 184, 186–7 Case C-336/00 Republik Österreich v Martin Huber [2002] ECR I–7699 . . . . . . . . . . . . . . . . . 295 Case C-339/00 Ireland v Commission [2003] ECR I–11757 . . . . . . . . . . . . . . . . . . . . . . . . . . . 254 Case C-211/01 Commission v Council [2003] ECR I–8913 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 Case C-281/01 Commission v Council [2002] ECR I–12049. . . . . . . . . . . . . . . . . . . . . . . . . . . 295 Case C-338/01 Commission v Council [2004] ECR I–4829 . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 Case C-486/01 P Front national v Parliament [2004] ECR I–6289 . . . . . . . . . . . . . . . . . . . . . 187 Case C-233/02 France v Commission [2004] ECR I–2759 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 Case C-94/03 Commission v Council [2006] ECR I–1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 295 Case C-105/03 Criminal proceedings against Maria Pupino [2005] ECR I–5285 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140, 205–9, 259, 312 Case C-176/03 Commission v Council [2005] ECR I–7879 . . . . . . . . . . . 17, 178–9, 205, 268, 285, 289–91, 293, 295 Case C-178/03 Commission v Parliament and Council [2006] ECR I–107 . . . . . . . . . . . . . . . . 295 Case C-239/03 Commission v France [2004] ECR I–9325 . . . . . . . . . . . . . . . . . . . . . . . . 243, 258 Case C-266/03 Commission v Luxembourg [2005] ECR I–4805 . . . . . . . . . . . . . . . . . . . 79, 256–7 Case C-433/03 Commission v Germany [2005] ECR I–6985 . . . . . . . . . . . . . . . . . . 79–80, 256–7 Case C-459/03 Commission v Ireland [2006] ECR I–4635. . . . . . 20, 29, 66, 177, 241, 243–4, 257 Joined Cases C-317/04 and C-318/04 European Parliament v Council and Commission [2006] ECR I–4721 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .85–87, 95, 255, 300

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Case C-344/04 IATA and ELFAA [2006] ECR I–403 . . . . . . . . . . . . . . . . . . . . . . . . . . . .174, 241 Case C-354/04 P Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti v Council [2007] ECR I–1579 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105, 119, 176, 180, 182, 184–5, 196, 200, 208–9, 283, 296, 313 Case C-355/04 P SEGI, A. Zubimendi Izaga, A. Galarraga v Council [2007] ECR I–1657 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105, 119, 176, 180, 182, 184–5, 197, 200, 208–9, 283, 296, 313 Case C-411/04 P Salzgitter Mannesmann v Commission [2007] ECR I–959 . . . . . . . . . . . . . . . 183 Case C-417/04 P Regione Siciliana v Commission [2006] ECR I–3881 . . . . . . . . . . . . . . . . . . . 187 Case C-523/04 Commission v Netherlands [2007] ECR I–3267 . . . . . . . . . . . . . . . . . . . . 18, 47, 69 Case C-91/05 Commission v Council [2005] OJ C115/10 . . . . . . 30, 74, 108, 178–80, 205, 268–9, 271, 283–96, 299, 302, 312 Case C-260/05 P Sniace v Commission [2005] OJ C193/22 . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Case C-266/05 P Sison v Council [2007] ECR I–1233 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174–5 Case C-292/05 P PKK and KNK v Council [2007] ECR I–439 . . . . . . . . . . . . . . . . . . . . . . . . 160 Case C-303/05 Advocaten voor de Wereld [2007] ECR I–3633 . . . . . . . . . . . . . . . . . . . . . . . . . 185 Case C-305/05 Ordre des barreaux francophones et germanophone and others [2007] ECR I–5305 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 Case C-341/05, Laval un Partneri [2005] OJ C281/10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 Case C-402/05 P Kadi v Council and Commission [2006] OJ C36/19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 181–2, 188, 195, 276, 278, 281 Case C-403/05 Parliament v Commission [2006] OJ C10/14 . . . . . . . . . . . . . . . . . . . . . . . 92, 286 Case C-415/05 P Al Barakaat International Foundation v Council and Commission [2006] OJ C48/11. . . . . . . . . . . . . . . . . . . . . . . . 5, 181–2, 188, 195, 276, 278, 281 Case C-431/05 Merck Genéricos Produtos Farmacêuticos [2006] OJ C36/22. . . . . . 35, 241–2, 264 Case C-438/05 The International Transport Workers’ Federation and The Finnish Seamen’s Union [2006] OJ C60/16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 Case C-440/05 Commission v Council [2006] OJ C22/10 . . . . . . . . . . . . .9, 17, 73, 179, 205, 222, 268–9, 285, 289, 291, 293, 295 Case C-117/06 Möllendorf and Möllendorf-Niehuus [2006] OJ C108/6 . . . . . . . . . . . . . . . . . . 277 C-125/06 P Commission v Infront WM [2006] OJ C108/7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Case C-133/06 Parliament v Council [2006] OJ C108/12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Joined Cases C-120/06 P and C-121/06 P FIAMM and FIAMM Technologies v Council and Commission and Fedon & Figli and Fedon America v Council and Commission [2006] OJ C108/6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Case C-212/06 Gouvernement de la Communauté française and Gouvernement wallon [2006] OJ C178/18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252, 298 Case C-345/06 Heinrich [2006] OJ C281/19 . . . . . . . . . . . . . . . . . . . . . . . . . 89, 92, 171, 188, 227 Case C-372/06 Asda Stores [2006] OJ C294/24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Joined Cases C-373/06 P, C-379/06 P, and C-382/06 P Flaherty and pthers v Commission [2006] OJ C281/25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Case C-399/06 P Hassan v Council and Commission [2006] OJ C294/30 . . . . . . . . . . . . . . . . . 182 Case C-403/06 P Ayadi v Council [2006] OJ C294/32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Case C-13/07 Commission v Council [2007] OJ C56/22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220 Case C-203/07 P Greece v Commission [2007] OJ C155/10 . . . . . . . . . . . . . . . . . . . . . . . . 124, 259 Opinions Opinion 1/75 [Draft Understanding on a Local Cost Standard drawn up under the auspices of the OECD] [1975] ECR 1355 . . . . . . . . . . . . . . . . .20, 39–41, 59, 78, 93–94, 234 Opinion 1/76 Draft Agreement establishing a European laying-up fund for inland waterway vessels [1977] ECR 741 . . . . . . . . . . . . . . . 21–22, 24–25, 52–57, 68, 232–3, 246, 256

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Opinion 1/78 International Agreement on Natural Rubber [1979] ECR 2871 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 93–94, 234, 238, 291 Opinion 1/91 Draft agreement between the Community, on the one hand, and the countries of the European Free Trade Association, on the other, relating to the creation of the European Economic Area [1991] ECR I–6079 . . . . . . . . . . . . . . . . . . . . . 184, 201 Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work [1993] ECR I–1061 . . . . . . . . . . . . . . . . . . . . . . . . . .20, 25–28, 44–47, 50, 60, 64–66, 94, 233, 253–4, 258, 265 Opinion 2/92 Competence of the Community or one of its institutions to participate in the Third Revised Decision of the OECD on national treatment [1995] ECR I–521 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 30, 32, 45, 54, 56, 58, 95 Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I–5267. . . . . . . . . . . . . . . . . . . . . . . . . . 20, 23, 26–28, 42, 45–47, 51–53, 55–56, 58, 61–62, 68–70, 93–94, 198, 234, 236, 246, 254, 257–8 Opinion 2/94 Accession by the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECR I–1759 . . . . . . . . . . . . . . . . . . . . . . . . . . . 9–10, 18–19, 21, 23, 29–30, 93–94, 183 Opinion 3/94 GATT – WTO – Framework Agreement on Bananas [1995] ECR I–4577 . . . . . . . 95 Opinion 2/00 [Cartagena Protocol] [2001] ECR I–9713. . . . . . . . . . .10, 40, 94–95, 254, 258, 295 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–01145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18–19, 20, 29, 43–44, 46–51, 53, 57, 64–67, 72, 94, 258 Rulings Ruling 1/78 Draft Convention of the International Atomic Energy Agency on the Physical Protection of Nuclear Materials, Facilities and Transports [1978] ECR 2151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 59, 241, 253–4, 258

C OU RT OF F I R S T I NS TA NC E OF T H E E U ROPE A N C OM M U N I T I E S Case T-174/95 Svenska Journalistförbundet v Council [1998] ECR II–2289 . . . . . . . . . . . . . . . 171 Case T-14/98 Heidi Hautala v Council [1999] ECR II–2489 . . . . . . . . . . . . . . . . . . . . .171, 180–1 Case T-188/98 Aldo Kuijer v Council [2000] ECR II–1959 . . . . . . . . . . . . . . . . . . . . . . . . . . . 172 Case T-201/99 Royal Olympic Cruises Ltd, Valentine Oceanic Trading Inc., Caroline Shipping Inc., Simpson Navigation Ltd, Solar Navigation Corporation, Ocean Quest Sea Carriers Ltd, Athena 2004 SA, Freewind Shipping Company, Elliniki Etairia Diipirotikon Grammon AE v Council and Commission, Order of 12 December 2000 [2000] ECR II–4005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 Joined Cases T-222/99, T-327/99 and T-329/99 Jean-Claude Martinez, Charles de Gaulle, Front national, Emma Bonino, Marco Pannella, Marco Cappato, Gianfranco Dell’Alba, Benedetto Della Vedova, Olivier Dupuis, Maurizio Turco, Lista Emma Bonino v European Parliament, [2001] ECR II–2823. . . . . . . . 184 Case T-349/99 Miscovic v Council [removed from the register] . . . . . . . . . . . . . . . . . . . . . . . . . 268 Case T-350/99 Karic and others v Council [removed from the register] . . . . . . . . . . . . . . . . . . . 268

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Case T-211/00 Aldo Kuijer v Council [2002] ECR II–485 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172 Case T-306/01 Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II–3533 . . . . . . . . . . 14, 181, 183–4, 187, 275–7, 279–82 Case T-315/01 Yassin Abdullah Kadi v Council and Commission [2005] ECR II–3649 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 181, 183–4, 187, 275–6, 279–82 Case T-318/01 Omar Mohamed Othman v Council and Commission [2002] OJ C68/13 . . . . . . 278 Case T-228/02 Organisation des Modjahedines du Peuple d’Iran (OMPI) v Council [2006] ECR II–4665 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .181–2, 198, 207–8 Case T-229/02 PKK v Council [2002] OJ C233/32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Case T-253/02 Chafiq Ayadi v Council [2006] ECR II–2139 . . . . . . . . . 181, 187–8, 276, 278, 282 Case T-333/02 Gestoras Pro-Amnistía and others v Council, Order of 7 June 2004 [2004] OJ C228/40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180, 184–5, 283 Case T-338/02 Segi, Araitz Zubimendi Izaga, and Aritza Galarraga v Council, Order of 7 June 2004 [2004] ECR II–1647 . . . . . . . . . . . . . . . . .180, 182, 184–5, 283 Case T-47/03 Sison v Council [2003] OJ C101/41. . . . . . . . . . . . . . . . . . . . . . . . . 175–6, 254, 282 Joined Cases T-110/03, T-150/03, and T-405/03 Sison v Council [2005] ECR II–1429 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174–5 Case T-327/03 STICHTING AL-AQSA v Council and Commission [2003] OJ C289/30 . . . . . 181 Case T-49/04 Faraj Hassan v Council and Commission [2006] ECR II–52 . . . . . 182, 187, 276, 278 Case T-253/04 Kongra-Gel and others v Council [2004] OJ C262/28 . . . . . . . . . . . . . . . . . . . . 181 Case T-299/04 Abdelghani Selmani v Council and Commission, Order of 18 November 2005 [2005] ECR II–20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278 Case T-362/04 Leonid Minin v Commission [2007] ECR II–2003 . . . . . . . . . . . . . . . . . . . . . . 278 Case T-157/07 People’s Mojahedin Organization of Iran v Council [2007] OJ C140/43 . . . . . . . 181 Case T-256/07 People’s Mojahedin Organization of Iran v Council [2007] OJ C211/50 . . . . . . . 181 E U ROPE A N C OU RT OF H U M A N R IG H T S Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi (Bosphorus Airways) v Ireland [GC], no. 45036/98, ECHR 2005-VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .177, 196 Segi and Gestoras Pro-Amnistía and others v Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom (dec.), nos. 6422/02 and 9916/02, ECHR 2002–V . . . . . . 177 Bulduş v Turkey, no. 64741/01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 Liu v Russia, no. 42086/05 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188 PE R M A N E N T C OU RT OF I N T E R N AT ION A L J US T IC E Opinions Exchange of Greek and Turkish Populations [1925] PCIJ Series B. – No. 10 . . . . . . . . . . . . . . . . . 36 Jurisdiction of the European Commission of the Danube Between Galatz and Braila [1927] PCIJ Series B. – No. 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17, 105 Jurisdiction of the Courts of Danzig (Pecuniary Claims of Danzig Railway Officials Who Have Passed Into the Polish Service, Against the Polish Railway Administration) [1928] PCIJ Series B. – No 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 The Greco-Bulgarian ‘Communities’ [1930] PCIJ Series B. – No. 17 . . . . . . . . . . . . . . . . . . . . . . 36 Competence of the International Labour Organization to Regulate, Incidentally, the Personal Work of the Employer [1926] PCIJ Series B. – No. 13 . . . . . . . . . . . . . . . . . . . . . . . . . 17 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory [1932] PCIJ Series A./B. – No. 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

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I N T E R N AT ION A L C OU RT OF J U S T IC E Cases Interhandel Case (Switzerland v United States of America) (Preliminary Objections) [1959] ICJ Reports 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 LaGrand Case (Germany v United States of America) [2001] ICJ Reports 466 . . . . . . . . . . . . . . . 34 Case of Certain Norwegian Loans (France v Norway) [1957] ICJ Reports 9. . . . . . . . . . . . . . . . . 109 Nuclear Tests Case (Australia v France) [1974] ICJ Reports 253 . . . . . . . . . . . . . . . . . . . . . . . . . 121 Opinions Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) [1962] ICJ Reports, 151. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 [1988] ICJ Reports 12 . . . . . . . . . . . . . . . . . . . . . . . 36 Reparation for Injuries suff ered in the Service of the United Nations [1949] ICJ Reports 174 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 145 I N T E R N AT ION A L C R I M I N A L T R I BU N A L F OR F OR M E R Y U G O S L AV I A Case IT-94-1-AR72 Prosecutor v Dusco Tadic a/k/a ‘Dule’, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 105 ILR 453 . . . . . . . . . . . . . . . . . . . . . . 194 G E R M A N C OU RT S 2 BvR 2134/92 & 2159/92 of 12 October 1993, Manfred Brunner and others v The European Union Treaty, [1994] 1 CMLR 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263 2BvL1/97: 2 BvL 1/97 of 7 June 2000 (available at http://www.bverfg.de/entscheidungen/ ls20000607_2bvl000197.html) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263 1BvR1036/99: 1 BvR 1036/99 of 9 January 2001 (available at http://www.bverfg.de/ entscheidungen/rk20010109_1bvr103699.html) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263 U N I T E D K I NG D OM C OU RT S Buttes Gas and Oil Co. v Hammer [1982] AC 888 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193–4 R (Abbasi) v Secretary of State for Foreign and Commonwealth Aff airs [2002] EWCA Civ. 1598 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193–4 U S A C OU RT S Marbury v Madison 1 Cranch (5 U.S.) 137 (1803) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 M’Culloch v The State of Maryland et al., 17 U.S. 316 (1819) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Luther v Borden 48 U.S. 1 (1849) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Occidental of Umm al Qaywayn, Inc. v A Certain Cargo of Petroleum, 577 F.2d 1196 (5th Cir. 1978), cert. denied sub nom. Occidental of Umm Qaywayn, Inc. v Cities Serv. Oil Co., 442 U.S. (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 194

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Table of Legal Instruments and Other Documents EU DOCUMENTS Basic Treaties Treaty establishing the European Coal and Steel Community, not published in the OJ. Art 6(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Treaty establishing the European Economic Community, not published in the OJ . . . . 12–13, 15, 18, 34, 74, 153, 158, 253 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . 16 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . .253–4 Art 100 . . . . . . . . . . . . . . . . . . . . . . . . . .66 Art 103. . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Art 116 . . . . . . . . . . . . . . . . . . . . . . . . . . 247 Art 118a . . . . . . . . . . . . . . . . . . . .26, 45–46 Art 228 . . . . . . . . . . . . . . . . . . . . . . . . . .77 Art 238 . . . . . . . . . . . . . . . . . . . . . . . . . .88 Treaty establishing the European Atomic Energy Community, not published in the OJ . . . . . . . . . . 146 Art 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Art 102. . . . . . . . . . . . . . . . . . . . . . . . . .240 Art 103. . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Art 192. . . . . . . . . . . . . . . . . . 244, 253, 257 Treaty establishing the European Community, (consolidated version) [2006] OJ C321/E1 . . . . . . 3, 11, 39, 43, 50, 56–57, 61, 123, 205, 245, 268, 274, 287, 301–2, 311 Preamble . . . . . . . . . . . . . . . . . . . . . . . . 279 Pt III . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Title IV . . . . . . . . . . . . . . . . . . . . . . . . 32 Pt V . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 Title XX . . . . . . . . . . . . . . . . . . 15, 291, 295 Art 2 . . . . . . . . . . . . . . . . . . . . . . . 279, 281 Arts 2–4. . . . . . . . . . . . . . . . . . . . . . . . . 101 Art 3 . . . . . . . . . . . . . . . . . . . . . . . 279, 281

(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 Art 5 . . . . . . . . . . . . . .9, 18–19, 31, 48, 292 para 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Art 7(1) . . . . . . . . . . . . . . . . . . . . . . 19, 273 Art 10. . . . . . . . . . 22, 33, 38, 44, 59, 64, 71, 79, 86, 89, 91, 134, 148, 183, 200, 206–7, 233, 244, 252–4, 256–9, 290, 307 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . .246 Art 23(1) . . . . . . . . . . . . . . . . . . . . . . . . . 12 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Art 34(2) . . . . . . . . . . . . . . . . . . . . . . . . . 11 Art 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Arts 57–60 . . . . . . . . . . . . . . . . . . . . . . . . 11 Art 60 . . . . . . . . . . . . . . . . . . . 275, 277–82 Art 70 . . . . . . . . . . . . . . . . . . . . . . . . . . .24 Art 71 . . . . . . . . . . . . . . . . . . . . . . . . 13, 24 (1)(a) . . . . . . . . . . . . . . . . . . . . . . . 11, 28 Art 80(2) . . . . . . . . . . . . . . . . . . . . . 64, 179 Art 83 . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Art 93 . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Art 94 . . . . . . . . . . . . . . . . . . . . . . . . 13, 58 Art 95 . . . . . . . . . . . . . . . . . . . . 58, 86, 300 Art 111 . . . . . . . . . . . . 11, 13, 42, 63, 88, 98 (1) . . . . . . . . . . . . . . . . . . . . . . . . . 78, 84 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 247 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Arts 131–134 . . . . . . . . . . . . . . . . . . . 11–12 Art 133. . . . . . . . . . . . . . . . . . . . .40–42, 74 (1)–(4) . . . . . . . . . . . . . . . . . . . . . . . . . 14 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 (3) . . . . . . . . . . . . . . . . . . . . .79–80, 142 (4) . . . . . . . . . . . . . . . . . . . . . . . . . 75, 80 (5) . . . . . . . . . . . . . . . . . . . . . . 14, 63, 84 subpara 2 . . . . . . . . . . . . . . . . . . 81, 84 subpara 3 . . . . . . . . . . . . . . . . . . . . . 81 (5)–(6) . . . . . . . . . . . . . . . . . . . . . . . . . 41 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . .220 subpara 2 . . . . . . . . . . . . . . . . . . . . . 81 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Art 137 . . . . . . . . . . . . . . . . . . . . . . . . . . 11 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

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Art 149(1) . . . . . . . . . . . . . . . . . . . . . . . . 31 (3) . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13 Art 150(3) . . . . . . . . . . . . . . . . . . . . . 11, 13 Art 151(3) . . . . . . . . . . . . . . . . . . . . . . 11, 13 Art 152(3) . . . . . . . . . . . . . . . . . . . . . 11, 13 Art 155(3) . . . . . . . . . . . . . . . . . . . . . 11, 13 Art 164(b) . . . . . . . . . . . . . . . . . . . . . . . . 11 Art 170 . . . . . . . . . . . . . . . . . . . . . 11, 13, 98 Art 174 . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 (4) . . . . . . . . . . . . 11, 13, 62, 84, 98, 247 para 2 . . . . . . . . . . . . . . . . . . . . . . . . 52 Art 175 . . . . . . . . . . . . . . . . . . . . . . . . . . 178 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . .84 Art 177. . . . . . . . . . . . . . . . . . 237, 286, 296 (1) . . . . . . . . . . . . . . . . . . . . . . . 284, 289 (2) . . . . . . . . . . . . . . . 108, 160, 185, 286 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 Arts 177–181 . . . . . . . . . . . . . . . . . . . 11, 15 Art 179. . . . . . . . . . . . . . . . . . . . . . . . . . . 15 (1) . . . . . . . . . . . . . . . . . . . . 75, 293, 296 Art 180. . . . . . . . . . . . . . . . . . . . . . . 63, 290 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . .290 Art 181 . . . . . . . . 13–14, 62–63, 98, 237–8, 286, 289, 291 para 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Art 181a . . . . . . . . . . . . . . . . 12, 14–15, 293 (1) subpara 2. . . . . . . . . . . . . . . . . . . . 108 Art 192. . . . . . . . . . . . . . . . . . . . . . . . . . 163 para 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 74 Art 197 para 3 . . . . . . . . . . . . . . . . . . . . 163 para 4 . . . . . . . . . . . . . . . . . . . . . . . . . 163 Art 201 . . . . . . . . . . . . . . . . . . . . . . . . . 149 Art 202, third indent . . . . . . . . . . . . . . . .92 Art 203 . . . . . . . . . . . . . . . . . . . . . . .128–9 Art 205(2) . . . . . . . . . . . . . . . . . . . . .134–5 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . .134 Art 207 . . . . . . . . . . . . . . . . . . . . . . . . . 132 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 (3) subpara 2 . . . . . . . . . . . . . . . . . . . 170 Art 208 . . . . . . . . . . . . . . . . . . . . . . . . . . 74 Art 211 . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Art 214(2) . . . . . . . . . . . . . . . . . . . . . . . 163 Art 220 . . . . . . . . . . . . . . . . . . . . . . 93, 183 Art 226 . . . . . . . . . . . . . . . . . 149, 200, 243 Art 227 . . . . . . . . . . . . . . . . . . . . . . . . .200 Art 228(2) . . . . . . . . . . . . . . . . . . . . . . . . 29 (3) para 2 . . . . . . . . . . . . . . . . . . . . . . . 29 Art 230 . . . . . . . . . . . . 95, 178–9, 187, 239 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Art 234 . . . . . . . . . . . . 180, 212–13, 242–3 Art 238 . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Art 241. . . . . . . . . . . . . . . . . . .179–80, 283 Art 249 . . . . . . . . . . . . . . . .73, 88–89, 206 para 3 . . . . . . . . . . . . . . . . . . . . . . .206–7 Art 251 . . . . . . . . . . . . . . 75, 85, 87, 98, 296 Art 252. . . . . . . . . . . . . . . . . 85, 87, 98, 142 Art 253. . . . . . . . . . . . . . . . . . . . . . . . . . 175 Art 254 . . . . . . . . . . . . . . . . . . . . . . . . . 171 Art 255. . . . . . . . . . . . . . . . . . . . . . . . . . 171 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 Art 272 . . . . . . . . . . . . . . . . . . . . . . . . . 162 Art 281 . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Art 292 . . . . . . . . . . . . . . . . . . . . . . . . . 177 Art 297 . . . . . . . . . . . . . . . . . 182, 194, 196 Art 300 . . . . . . . . . . .12, 29, 62, 77–78, 80, 83, 89–90, 98, 138, 142, 157, 239–40, 296, 307 (1) . . . . . . . . . . . . . . . . . . . . . . . . 80, 138 subpara 1 . . . . . . . . . . . . . . . . . . . . .80 subpara 2 . . . . . . . . . . . . . . .80–81, 84 (2) . . . . . . . . . . . . . . . .78, 81, 83, 87, 241 subpara 1 . . . . . . . . . . . . . . . . . . . . .84 subpara 2 . . . . . . . . . . . . . . . . . . . . .90 subpara 3 . . . . . . . . . . . . . . . 83, 90–91 (3) . . . . . . . . . . . . . . . . . . . . . . . . .85–86 subpara 1 . . . . . . . . . . . . . . . . . 85, 142 subpara 2 . . . . . . . . 85–87, 141–2, 247 subpara 3 . . . . . . . . . . . . . . . . . . . . .88 (4) . . . . . . . . . . . . . . . . . . . . . . . . 85, 142 (6) . . .10, 86, 93, 95, 98, 188, 190, 308–9 (7) . . . . . . . . . . . . . . . . . . . . . 55, 89, 246 Art 301. . . . . . . . . . . . . . . . . . . 275, 277–82 Art 302 . . . . . . . . . . . . . . . . . . . 12, 84, 247 Arts 302–304. . . . . . . . . . . . . . . . . . . . . . 12 Art 303 . . . . . . . . . . . . . . . . . . . . . . 12, 247 Art 304 . . . . . . . . . . . . . . . . . . . . . . 12, 247 Art 307 para 2 . . . . . . . . . . . . . . . . . . . . .54 Art 308 . . . . . . . . . . . . 9, 14, 21, 29–32, 58, 84, 277–82, 293–4 Art 310 . . . 12, 29, 74, 81, 84, 87, 90, 98, 235 Single European Act [1987] OJ L169 . . . . . . . . . . 13, 30, 88, 250 Preamble . . . . . . . . . . . . . . . . . . . . . . . . 250 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . .88 Art 30(5) . . . . . . . . . . . . . . . . . . . . . . . . 250 Treaty of Maastricht [1992] OJ C191/1 . . . . . . . . .13, 19, 63, 88, 103, 105, 134, 221, 247, 252, 290, 301 Art B, 2nd indent . . . . . . . . . . . . . . . . . . 103 Art J.3(1) . . . . . . . . . . . . . . . . . . . . . . . . 116 Art J.4(1) . . . . . . . . . . . . . . . . . . . . . . . . 103

Table of Legal Instruments and Other Documents Treaty on European Union, (consolidated version) [2006] OJ C321/E1 . . . . . . . 30, 70, 138–40, 205, 238 Preamble . . . . . . . . . . . . . . . . . . . . . . . . 103 Title I . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Title V . . . . . . . . . . . . . .3, 101, 105–6, 108, 113, 131, 140, 149, 157, 160, 177, 179–83, 201, 203, 247, 259, 261, 268, 283, 285, 288, 295–6, 300, 308 Chap 2 . . . . . . . . . . . . . . . . . . . . . . . . 189 Title VI . . . . . . . . . . . . .107–8, 177–8, 201, 206–7, 285, 297 Art 1 . . . . . . . . . . . . . . . 169, 206, 250, 298 para 3 . . . . . . . . . . . . . . . . . . . . . 210, 267 Art 1 (new) . . . . . . . . . . . . . . . . . . . . . . . 210 Art 2 . . . . . . . . . . . . .103, 212, 267–8, 270, 280, 285, 302 2nd indent . . . . . . . . . . . . . . . . . . . . . 313 5th indent . . . . . . . . . . . . . . . . . . . . . 298 Art 2 (new) . . . . . . . . . . . . . . . . . . . . 313–14 Art 3 . . . . . 150, 251, 268, 270, 273, 280–1 para 1 . . . . . . . . . . . . . . . . . . . . . 285, 298 para 2 . . . . . . . . . . . . . . . . . . . . . 270, 273 Art 3(5) (new) . . . . . . . . . 262, 302, 313–14 Art 4 . . . . . . . . . . . . . . . . . . . . 74, 128, 297 para 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 75 para 3 . . . . . . . . . . . . . . . . . . . . . . . . . 161 Art 4(2) (new) . . . . . . . . . . . . . . . . . . . . 252 (3) (new) . . . . . . . . . . . . . . . . . .262, 264 Art 5 . . . . . . . . . . . . . . . . . . . . . . . 105, 274 Art 5(1) (new). . . . . . . . . . . . . . . . . . . . . . . 9 (2) (new) . . . . . . . . . . . . . . . . . . . . . . . . 9 Art 6 . . . . . . . . . . . . . . . . . . . . . 185, 251–2 (1) . . . . . . . . . . . . . . . . . . . 160, 176, 252 (2) . . . . . . . . . . . . .94, 177, 182, 184, 252 (2) (new) . . . . . . . . . . . . . . . . . . 141, 197 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 252 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . .126 Art 8 (new) . . . . . . . . . . . . . . . . . . . . . . . . 16 (2) (new) . . . . . . . . . . . . . . . . . . . . . . . 16 Art 11. . . . . . . . . . . . . . . . . . . 101, 113, 280 (1) . . . . . 101–3, 106–8, 268–9, 291, 293 2nd indent . . . . . . . . . . . . . . . . . . .280 3rd indent . . . . . . . . . . . . . . . . . . .280 5th indent . . . . . . . . . . . 107, 160, 285 (2) . . . .140, 148, 150, 207, 259, 262, 266 Art 12 . . . . . . . . . . . . . . . 73, 113, 126, 260 (a) (new) . . . . . . . . . . . . . . . . . . . . . . . 167

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Art 13(1) . . . . . . . . . . . . . . . . . . . . . . . . 125 (2) . . . . . . . . . . . . . . . . . . . . . . . 113, 125 (3) . . . . . . . . . . . . . . . 114, 120, 126, 134 Art 14. . . . . . . . . . . . . . . . . . . . . . . . . . . 115 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 (3) . . . . . . . . . . . . . . . . . . . 116, 261, 283 (4) . . . . . . . . . . . . . . . . . . . . . . . 116, 128 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 Art 15 . . . . . . . . . . . . . . . 118, 186, 208, 283 (4) (new) . . . . . . . . . . . . . . . . . . . . . . 136 (5) (new) . . . . . . . . . . . . . . . . . . 127, 148 Art 16. . . . . . . . . . . . . . . . . . . . . . . 260, 263 (4) (new) . . . . . . . . . . . . . . . . . . . . . . 137 (6) (new) . . . . . . . . . . . . . . . . . . . . . . 136 Art 17. . . . . . . . . . . . . . . . . . . . . 103, 107–8 (1) . . . . . . . . . . . . . . . . . . . . . 101–3, 126 subpara 3 . . . . . . . . . . . . . . . . . . . . 104 (1) (new) . . . . . . . . . . . . . . . . . . . . . . . 217 (2) . . . . . . . . . . . . . . . 101–2, 104–5, 109 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 (6) (new) . . . . . . . . . . . . . . . . . . . . . . 216 (7) para 3 (new) . . . . . . . . . . . . . . . . . 214 (8) (new) . . . . . . . . . . . . . . . . . . . . . . 217 Art 18. . . . . . . . . . . . . . . . . . . . . . . . . . . 113 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 (4) . . . . . . . . . . . . . . . . . . . . . . . 129, 147 (5) . . . . . . . . . . . . . . . . . . . . . . . 135, 148 Art 18 (new) . . . . . . . . . . . . . . . . . . . . . . 148 (1) (new) . . . . . . . . . . . . . . . . . . . 214, 216 (2) (new) . . . . . . . . . . . . . . . . . . . . . . 214 (3) (new) . . . . . . . . . . . . . . . . . . . . . . 136 (4) (new) . . . . . . . . . . . . . . . . . . . . . . 214 para 2 (new) . . . . . . . . . . . . . . . . . . 214 para 3 (new) . . . . . . . . . . . . . . . . . . 214 Art 19. . . . . . . . . . . . . . . . . . . . . . . . . . . 113 (1) . . . . . . . . . . . . . . . . . . . 118, 247, 261 subpara 2 . . . . . . . . . . . . . . . . . . . . 118 (1) (new) subpara 2 . . . . . . . . . . . . . . . 187 Art 20 . . . . . . . . . . . . . . . . . . 149, 261, 303 para 1 . . . . . . . . . . . . . . . . . . . . . . . . . 261 para 2 . . . . . . . . . . . . . . . . . . . . . . . . . 261 Art 21. . . . . . . . . . . . . . . . . . . . . . . 113, 161 para 2 . . . . . . . . . . . . . . . . . . . . . 161, 165 Art 21 (new) . . . . . . . . . . . . . . 108, 302, 313 (1) (new) . . . . . . . . . . . . . . . . . . . 262, 314 (2)(a) (new) . . . . . . . . . . . . . . . . . . . . 314 (c) (new) . . . . . . . . . . . . . . . . . . . . .299 (d) (new) . . . . . . . . . . . . . . . . . . . .299

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(3) (new) . . . . . . . . . . . . . . . . . . . . . . 273 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . 217 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . .134 Art 22 (new) . . . . . . . . . . . . . . . . . . . . . . 127 (1) (new) . . . . . . . . . . . . . . . . . . . . . . . 127 (2) (new) . . . . . . . . . . . . . . . . . . . . . . 127 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . .134 (1) para 2 . . . . . . . . . . . . . . . . . . . . . .134 (2) . . . . . . . . 115, 120, 135, 137, 139, 296 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 Art 24 . . . 113, 138–40, 143, 157, 296, 309 (1) . . . . . . . . . . . . . . . . . . . . . . . . .138–9 (1) (new) . . . . . . . . . . . 108, 122, 189, 192 subpara 2 (new) . . . . . . . . . . . . . . . 167 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 (2) (new) . . . . . . . . . . . . . . . . . . . . . .262 (3) (new) . . . . . . . . . . . . . . . . . . . . . .262 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 (5) . . . . . . . . . . . . . . . . . . . . . . . 139, 143 Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . 132 para 1 . . . . . . . . . . . . . . . . . . . . . . . . . 150 para 2 . . . . . . . . . . . . . . . . . . . . . . . . . 152 para 3 . . . . . . . . . . . . . . . 132, 153, 155–6 Art 25 (new) . . . . . . . . . . . . . . . . . . 122, 171 Art 26 . . . . . . . . . . . . . . . . . . . . . . 113, 130 Art 26 (new) . . . . . . . . . . . . . . . . . . . . . . 121 Art 27 . . . . . . . . . . . . . . . . . . . . . . 113, 128 Art 27 (new) . . . . . . . . . . . . . . . . . . . . . . 214 (1) (new) . . . . . . . . . . . . . . . . . . . . . . . 148 (3) (new) . . . . . . . . . . . . . . . . . . 148, 215 Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . 163 (1) . . . . . . . . . . . . . . . . . . . 149, 163, 171 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 162 Art 29 . . . . . . . . . . . . . . . . . . . . . . . . 107–8 Art 30 (new) . . . . . . . . . . . . . . . . . . . . . . 217 (1) (new) . . . . . . . . . . . . . . . . . . . 128, 218 (2) (new) . . . . . . . . . . . . . . . . . . . . . . 215 Art 31(1) (new) . . . . . . . . . . . . 122, 137, 192 para 2 (new) . . . . . . . . . . . . . . . . . .262 (2), indent 2 (new) . . . . . . . . . . . . .136–7 indent 1, 3, 4 (new) . . . . . . . . . . . . 137 Art 32 . . . . . . . . . . . . . . . . . . . . . . . . . .262 Art 32 (new) . . . . . . . . . . . . . . . . . .262, 264 para 2 (new) . . . . . . . . . . . . . . . . . . . .264 para 3 (new) . . . . . . . . . . . . . . . . . . . .264 Art 34 . . . . . . . . . . . . . . . . 118, 185–6, 208 (1) (new) . . . . . . . . . . . . . . . . . . . . . . . 214 (2)(b) . . . . . . . . . . . . . . . . . . . 201, 206–7 (c). . . . . . . . . . . . . . . . . . . . . . . . . . 201

(2), para 3 (new) . . . . . . . . . . . . . . . . . 215 Art 35. . . . . . . . . . . . . . . . . . . . . . . 185, 206 (1) . . . . . . . . . . . . . . . . . . . . . . . . .185–6 (2) . . . . . . . . . . . . . . . . . . . . . . . . .208–9 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . 186 Art 36 para 1 (new) . . . . . . . . . . . . . . . . 192 para 2 (new) . . . . . . . . . . . . . . . . . . . . 192 Art 38 . . . . . . . . . . . . . . . . . . . . . . . . . .296 para 1 (new) . . . . . . . . . . . . . . . . . . . . 215 Art 40 . . . . . . . . . . . . . . . . . . . . . . . . . . 191 Art 40 (new) . . . . . . . . . . 189, 210, 299–300 para 2 . . . . . . . . . . . . . . . . . . . . . . . . .294 Art 41(3) (new). . . . . . . . . . . . . . . . . . . . 192 Art 42 . . . . . . . . . . . . . . . . . . . . . . . . . . 313 Art 42(1) (new) . . . . . . . . . . . . . . . . . . . 109 (2) (new) . . . . . . . . . . . . . . . . . . . . . . 108 para 2 (new) . . . . . . . . . . . . . . . . . . 104 (3) (new) para 2 . . . . . . . . . . . . . . . . . 153 Art 43(1) (new). . . . . . . . . . . . 105, 109, 280 Art 45. . . . . . . . . . . . . . . . . . . . . . . . . . . 273 Art 45 (new) . . . . . . . . . . . . . . . . . . . . . . 153 Art 46 . . . . . . . . . . 140, 149, 160, 178, 180, 189, 212, 252, 259 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 (f). . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 Art 47 . . . . . . . . . . . 108, 153, 156, 178–80, 183, 189, 210, 224, 247, 251, 267–70, 273, 284–5, 287–9, 292–3, 298–9, 311–12 Art 47 (new) . . . . . . . . . . . . . . . . . . . . . . 144 Art 48 . . . . . . . . . . . . . . . . . . . 93, 103, 200 Art 221(new) . . . . . . . . . . . . . . . . . . . . . 217 Art 222 (new). . . . . . . . . . . . . . . . . . . . .264 Treaty of Amsterdam [1997] OJ C340/1 . . . . . . . .13–14, 41, 108, 113, 116, 134, 143, 147, 167, 171, 173 Treaty of Nice [2001] OJ C80/1 . . . . . . . . . .13–14, 30, 41, 63, 118, 132, 151, 153 Draft Treaty establishing a Constitution for Europe, CONV 850/03. . . . . . . . . . . 69, 146 Art I-11(2) . . . . . . . . . . . . . . . . . . . . . . . 111 Art I-12(2) . . . . . . . . . . . . . . . . . . . . . . . . 70 Art I-24(1) . . . . . . . . . . . . . . . . . . . . . . . 137 Art I-27(1) . . . . . . . . . . . . . . . . . . . . . . . 216 Art I-39(5) . . . . . . . . . . . . . . . . . . . . . . .263 Art III-204 . . . . . . . . . . . . . . . . . . . . . . . 190 Art III-227 . . . . . . . . . . . . . . . . . . . . . . . 190

Table of Legal Instruments and Other Documents (12) . . . . . . . . . . . . . . . . . . . . . . . . . . 190 Treaty establishing a Constitution for Europe [2004] OJ C310/1 . . . . . . 3–4, 16, 108–12, 209–27 Pt II, Title IV . . . . . . . . . . . . . . . . . . . . .262 Art I-1(1) . . . . . . . . . . . . . . . . . . . . . . . . 311 Art I-2 . . . . . . . . . . . . . . . . . . . . . . 262, 313 Art I-3(3) paras 2–3 . . . . . . . . . . . . . . . .262 (4) . . . . . . . . . . . . . . . . . . . 262, 302, 313 Art I-5(1) . . . . . . . . . . . . . . . . . . . . . . . . 252 (2) . . . . . . . . . . . . . . . . . . . . . . .262, 264 Art I-6 . . . . . . . . . . . . . . . 211–12, 263, 311 Art I-7 . . . . . . . . . . . . . . . . . . . . . . . . . . 144 Art I-9(2) . . . . . . . . . . . . . . . . . . . . . 94, 141 Art I-11(1) . . . . . . . . . . . . . . . . . . . . . . . . . 9 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Art I-12 . . . . . . . . . . . . . . . . . . . 67, 110–11 (2) . . . . . . . . . . . . . . 39, 70, 110–11, 290 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 (4) . . . . . . . . . . . . . . . . . . . . . . . . 110–11 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 Art I-13 . . . . . . . . . . . . . . . . . . . . . . 68, 110 (1)(c) . . . . . . . . . . . . . . . . . . . . . . . . . .34 (d) . . . . . . . . . . . . . . . . . . . . . . . . . .34 (e). . . . . . . . . . . . . . . . . . . . . . . . . . . 69 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Art I-14 . . . . . . . . . . . . . . . . . . . . . . . . . 110 (1) . . . . . . . . . . . . . . . . . . . . . . . . 110–11 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . .269 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . 69 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 (4) . . . . . . . . . . . . . . 68, 70–71, 112, 290 Art I-15 . . . . . . . . . . . . . . . . . . . . . . . . . 111 Art I-16 . . . . . . . . . . . . . . . . . . . . . 111, 212 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . .262 Art I-17 . . . . . . . . . . . . . . . . . . . . . . . . . 110 Art I-21(4) . . . . . . . . . . . . . . . . . . . . . . . 136 Art I-22 . . . . . . . . . . . . . . . . . . . . . . . . . 127 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Art I-24(3) . . . . . . . . . . . . . . . . . . . . . . . 136 Art I-25(1) . . . . . . . . . . . . . . . . . . . . . . . 137 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Art I-26 . . . . . . . . . . . . . . . . . . . . . . . . . 217 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . 217 Art I-27(2) . . . . . . . . . . . . . . . . . . . . . . . 214 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 216 Art I-28(1) . . . . . . . . . . . . . . . . . . . 214, 216 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 214

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(3) . . . . . . . . . . . . . . . . . . . . . . . 136, 148 (4) . . . . . . . . . . . . . . . . . . . . . . . 214, 218 Art I-33 . . . . . . . . . . . . . . . . . . . . . . . . .122 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 para 5 . . . . . . . . . . . . . . . . . . . . . . .122 Art I-37(3) . . . . . . . . . . . . . . . . . . . . . . .122 Art I-40(1) . . . . . . . . . . . . . . . . . . . . . . .262 (3) . . . . . . . . . . . . . . . . . . . . 121–22, 211 (5) . . . . . . . . . . . . . . . . . . . . . . . . .262–3 (6) . . . . . . . . . . . . . . . . . . . . . . . 122, 192 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . 192 Art I-41(2) . . . . . . . . . . . . . . . . . . . . .108–9 para 2 . . . . . . . . . . . . . . . . . . . . . . . 104 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Art I-43 . . . . . . . . . . . . . . . . . . . . .262, 264 Art I-50(1) . . . . . . . . . . . . . . . . . . . . . . . 169 Art III-115 . . . . . . . . . . . . . . . . . . . . . . . . . 9 Art III-160 . . . . . . . . . . . . . . . . . . . . . . .280 Arts III-236 to III-245 . . . . . . . . . . . . . . 141 Art III-257(2) . . . . . . . . . . . . . . . . . . . . .262 Art III-268 . . . . . . . . . . . . . . . . . . . . . . .262 Art III-271 . . . . . . . . . . . . . . . . . . . . . . .280 Art III-276 . . . . . . . . . . . . . . . . . . . . . . .280 Art III-292 . . . . . . . . . . . . . . . 108, 302, 313 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . .262 (3) para 2 . . . . . . . . . . . . . . . . . . . . . . 273 Art III-293 . . . . . . . . . . . . . . . . . . . . . . . 127 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 Art III-294(2). . . . . . . . . . . . . . . . . . . . .262 (3)(c) . . . . . . . . . . . . . . . . . . . . . . . . .122 Art III-296 . . . . . . . . . . . . . . . . . . . . . . . 214 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 (3) . . . . . . . . . . . . . . . . . . . . . . . 148, 215 Art III-299(1) . . . . . . . . . . . . . . . . . 128, 218 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 215 Art III-300(1). . . . . . . . . . . . . . . . . . . . . 137 para 2 . . . . . . . . . . . . . . . . . . . . . . .262 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 (a). . . . . . . . . . . . . . . . . . . . . . . . . . 137 (b) . . . . . . . . . . . . . . . . . . . . . . .136–7 (c). . . . . . . . . . . . . . . . . . . . . . . . . . 137 (d) . . . . . . . . . . . . . . . . . . . . . . . . . 137 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 Art III-301(1) . . . . . . . . . . . . . . . . . . . . .264 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . .264 Art III-304(1). . . . . . . . . . . . . . . . . . . . . 192 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 192 Art III-305(1) . . . . . . . . . . . . . . . . . . . . . 214 (2) para 3 . . . . . . . . . . . . . . . . . . . . . . 215 Art III-307(1) . . . . . . . . . . . . . . . . . . . . . 215

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Art III-308 . . . . . . . . . . . . . . . . . . .299–300 Art III-309(1). . . . . . . . . . . . . 105, 109, 280 Art III-311 . . . . . . . . . . . . . . . . . . . . . . . 153 Art III-313(3) . . . . . . . . . . . . . . . . . . . . . 192 Art III-315(1) . . . . . . . . . . . . . . . . . . . . . . 69 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 192 (3) . . . . . . . . . . . . . . . . . . . . . . . . .142–3 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Art III-316 . . . . . . . . . . . . . . . . . . . . . . . . 15 Art III-318 . . . . . . . . . . . . . . . . . . . . . . . . 15 Art III-319 . . . . . . . . . . . . . . . . . . . . 15, 141 Art III-320 . . . . . . . . . . . . . . . . . . . . . . . . 15 Art III-321 . . . . . . . . . . . . . . . . . . . . . . . . 15 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Art III-322 . . . . . . . . . . . . . . . . . . . . . . .122 (1) . . . . . . . . . . . . . . . . . . . . . . . 189, 275 (2) . . . . . . . . . . . . . . . . . . . 189, 275, 278 Art III-325 . . . . . . . . . . . . . . . . . 141–2, 297 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 (6) . . . . . . . . . . . . . . . . . . . . . 141–2, 192 (a). . . . . . . . . . . . . . . . . . . . . . . . 141–2 (ii) . . . . . . . . . . . . . . . . . . . . . . . 141 (v) . . . . . . . . . . . . . . . . . . . . . . . 142 (b) . . . . . . . . . . . . . . . . . . . . . . . . . 142 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 (10) . . . . . . . . . . . . . . . . . . . . . . . . . . 142 (11). . . . . . . . . . . . . . . . . . . . . . . . 93, 190 Art III-326 . . . . . . . . . . . . . . . . . . . . . . . 143 Art III-328 . . . . . . . . . . . . . . . . . . . . . . . 217 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 215 Art III-329 . . . . . . . . . . . . . . . . . . . . . . .262 Art III-365(4). . . . . . . . . . . . . . . . . 189, 212 Art III-375(2). . . . . . . . . . . . . . . . . . . . . 177 Art III-376 . . . . . . . . . . . . . . . . 189, 212–13 (1) . . . . . . . . . . . . . . . . . . . . . . . 127, 299 (2) . . . . . . . . . . . . . . . . . . .190, 299–300 Art III-396 . . . . . . . . . . . . . . . . . . . . . . . 192 Art IV-437 . . . . . . . . . . . . . . . . . . . . . . .209 Art IV-438 . . . . . . . . . . . . . . . . . . . . . . .209 Charter of Fundamental Rights of the European Union [2007] OJ C303/1 Title IV . . . . . . . . . . . . . . . . . . . . . . . . .262 Treaty of Lisbon [2007] OJ C306/1 . . . . . 3–5, 15–16, 67, 70, 74, 89, 94, 96, 106,

108–12, 118, 122–23, 127–8, 136–7, 140–4, 146, 148, 153, 156, 160, 167, 171, 177, 189–92, 201–2, 204, 209–27, 252, 262–4, 266, 273–5, 280–1, 290, 294, 297–9, 302, 309 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Treaty on the Functioning of the European Union (consolidated version) [2008] OJ C115/47. . . . . . 5, 15, 311 Art 1(2) . . . . . . . . . . . . . . . . . . . . . 210, 299 Art 2 . . . . . . . . . . . . . . . . . . . . . 67, 110–11 (2) . . . . . . . . . . . 39, 62, 70, 110–11, 290 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 (4) . . . . . . . . . . . . . . . . . . . . . . . . 110–11 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 Art 3 . . . . . . . . . . . . . . . . . . . . . 68, 110–11 (1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . .68 (b) . . . . . . . . . . . . . . . . . . . . . . . . . .68 (c). . . . . . . . . . . . . . . . . . . . . . . . 34, 68 (d) . . . . . . . . . . . . . . . . . . . . . . . 34, 68 (e). . . . . . . . . . . . . . . . . . . . . . . 68–69 (2) . . . . . . . . . . . . . . . . . . . . . . . . . 68, 70 Arts 3–6. . . . . . . . . . . . . . . . . . . . . 294, 299 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 (1) . . . . . . . . . . . . . . . . . . . . . . . . 110–11 (2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 69 (j) . . . . . . . . . . . . . . . . . . . . . . . . . .269 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 (4) . . . . . . . . . . 68, 70–71, 110, 112, 290 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . 110–11 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Art 15(1). . . . . . . . . . . . . . . . . . . . . . . . . 169 Art 47 . . . . . . . . . . . . . . . . . . . . . . . . . .202 Art 67(2) . . . . . . . . . . . . . . . . . . . . . . . .262 Art 75 . . . . . . . . . . . . . . . . . . . . . . . . . .280 Art 80 . . . . . . . . . . . . . . . . . . . . . . . . . .262 Art 83(1) . . . . . . . . . . . . . . . . . . . . . . . .280 Art 88(1) . . . . . . . . . . . . . . . . . . . . . . . .280 Arts 90–100 . . . . . . . . . . . . . . . . . . . . . . 141 Art 207(1) . . . . . . . . . . . . . . . . . . . . . . . . 69 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 192 (3) . . . . . . . . . . . . . . . . . . . . . . . . .142–3 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Arts 208–211 . . . . . . . . . . . . . . . . . . . . . . 15 Art 212. . . . . . . . . . . . . . . . . . . . . . . 15, 141 Art 213. . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Art 214 . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Table of Legal Instruments and Other Documents (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Art 215(1) . . . . . . . . . . . . . . . . 122, 189, 275 (2) . . . . . . . . . . . . . . . . . . . 189, 275, 278 Art 218 . . . . . . . . . . . . . . . . 141–3, 190, 297 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 (3) . . . . . . . . . . . . . . . . . . . . . . . 141, 190 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 (6) . . . . . . . . . . . . . . . . . 141–2, 190, 192 (a). . . . . . . . . . . . . . . . . . . . . . . . 141–2 (ii) . . . . . . . . . . . . . . . . . . . . . . . 141 (v) . . . . . . . . . . . . . . . . . . . . . . . 142 (b) . . . . . . . . . . . . . . . . . . . . . . . . . 142 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 (8) . . . . . . . . . . . . . . . . . . . . . . . 141, 190 (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 (10) . . . . . . . . . . . . . . . . . . . . . . . . . . 142 (11). . . . . . . . . . . . . . . . . . . . . . . . 93, 190 Art 219 . . . . . . . . . . . . . . . . . . . . . . . . . . 143 Art 221(2) . . . . . . . . . . . . . . . . . . . . . . . 215 Art 222 . . . . . . . . . . . . . . . . . . . . . . . . .262 Art 238(2) . . . . . . . . . . . . . . . . . . . . . . . 137 Art 263(4) . . . . . . . . . . . . . . . . . . . 189, 212 Art 267 . . . . . . . . . . . . . . . . . . . . . . . . . 190 Art 275 . . .127, 189, 191, 212–13, 299–300 subpara 2 . . . . . . . . . . . . . . . . . . . . . . 190 Art 288 . . . . . . . . . . . . . . . . . . . . . . . . .122 Art 291(3) . . . . . . . . . . . . . . . . . . . . . . .122 Art 294 . . . . . . . . . . . . . . . . . . . . . . . . . 192 Art 297 . . . . . . . . . . . . . . . . . . . . . . . . . . 89 (2) subpara 2 . . . . . . . . . . . . . . . . 89, 171 subpara 3 . . . . . . . . . . . . . . . . . . . . 171 Art 344 . . . . . . . . . . . . . . . . . . . . . . . . . 177 Art 352. . . . . . . . . . . . . . . . . . . . . . . . . .294 subpara 4 . . . . . . . . . . . . . . . . . . . . . . 281 Protocols Treaty establishing a Single Council and a Single Commission of the European Communities, Protocol on the Privileges and Immunities of the European Communities [1967] OJ L152/13 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . .84 Treaty on European Union and the Treaty Establishing the European Communities, Protocol on the Position of Denmark [1997] OJ C340/101 . . . . . . . . . . . . . . . 151 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 151

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Treaty of Amsterdam, Protocol on the role of national parliaments in the European Union [1997] OJ C340/113. . . . . . . . . . . . . . . . . .167 Pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Treaty establishing a Constitution for Europe, Protocol Amending the Treaty establishing the European Atomic Energy Community [2004] OJ C310/391 . . . . . . . . . 146 Treaty on European Union, Treaty on the Functioning of the European Union, Treaty establishing the European Atomic Energy Community, Protocol on the role of national parliaments in the European Union [2007] OJ C306/148 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Treaty of Lisbon, Protocol No 2 amending the Treaty establishing the European Atomic Energy Community [2007] OJ C306/199 . . . . . . . . . . . . . . . 146 Rules of Procedure Council Decision 2004/338/EC, Euratom of 22 March 2004 adopting the Council’s Rules of Procedure [2004] OJ L106/22 . . . . . . . . . . . 89 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 Art 5(1) . . . . . . . . . . . . . . . . . . . . . . . . . 169 Art 8(1) . . . . . . . . . . . . . . . . . . . . . . . . . 169 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 Art 9(1) . . . . . . . . . . . . . . . . . . . . . 168, 170 (2)(a) . . . . . . . . . . . . . . . . . . . . . 168, 170 Art 17(1)(g) . . . . . . . . . . . . . . . . . . . . . . . 89 (h) . . . . . . . . . . . . . . . . . . . . . . . . . 140 (3) . . . . . . . . . . . . . . . . . . . . . . . 136, 170 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 (a)–(b) . . . . . . . . . . . . . . . . . . . . . . 170 (d) . . . . . . . . . . . . . . . . . . . . . . . . . 170 Art 18(2)(b) . . . . . . . . . . . . . . . . . . . . . . 170 (d) . . . . . . . . . . . . . . . . . . . . . . . . . 170 Art 19(3) . . . . . . . . . . . . . . . . . . . . . . . . 131 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . 170 Rules of Procedure of the European Parliament, 16th ed, February 2008 . . . . . . . . 81–83, 164 rule 23(1) . . . . . . . . . . . . . . . . . . . . . . . . 164

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rule 75(1) . . . . . . . . . . . . . . . . . . . . . . . . .88 rule 83(1) . . . . . . . . . . . . . . . . . . . . . . . . . 82 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 (6) . . . . . . . . . . . . . . . . . . . . . . 83, 85, 88 (7) . . . . . . . . . . . . . . . . . . . . . . . . . 86, 88 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . .86 (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . .88 rule 87(1) . . . . . . . . . . . . . . . . . . . . . . . . 164 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 rule 90(1) . . . . . . . . . . . . . . . . . . . . . . . . 164 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 rule 114 . . . . . . . . . . . . . . . . . . . . . . . . . 164 rule 138 . . . . . . . . . . . . . . . . . . . . . . . . . 164 Rules of Procedure of the Court of Justice (as last amended on 15 January 2008) [2008] OJ L24/39 . . . . . . . . . . . . . . . . . .94 Art 107(2) . . . . . . . . . . . . . . . . . . . . . . . .94 Regulations Council Regulation (EEC) No 2616/85 of 16 September 1985 concerning the conclusion of a Trade and Economic Cooperation Agreement between the European Economic Community and the People’s Republic of China [1985] OJ L250/1 . . . . . . . . . . . . . . . . . . . . . . . . . . .88 Council Regulation (EEC) 3300/91 of 11 November 1991 suspending the trade concessions provided for by the Cooperation Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia [1991] OJ L315/1 . . . . . . . . . . . . . 89 Council Regulation (EEC) No 443/92 of 25 February 1992 on financial and technical assistance to, and economic cooperation with, the developing countries in Asia and Latin America [1992] OJ L52/1 . . .92 Council Regulation (EEC) 1608/93 of 24 June 1993 introducing an embargo concerning certain trade between the European Economic Community and Haiti [1993] OJ L155/2 . . . . . . . . . . . . . . . . . . . . .90

Council Regulation (EC) 2894/94 of 28 November 1994 concerning arrangements for implementing the Agreement on the European Economic Area [1994] OJ L305/6 . . . . . . . . . . . . . 29 Council Regulation (EC) 2271/96 of 22 November 1996 protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom [1996] OJ L309/1 . . . . . . . . . . . . . . . . . 271 Council Regulation (EC) 1705/98 of 28 July 1998 concerning the interruption of certain economic relations with Angola in order to induce the ‘União Nacional para a Independência Total de Angola’ (UNITA) to fulfi l its obligations in the peace process, and repealing Council Regulation (EC) 2229/97 [1998] OJ L215/1 . . . . . . . . . . . .277 Council Regulation (EC) 1294/1999 of 15 June 1999 concerning a freeze of funds and a ban on investment in relation to the Federal Republic of Yugoslavia (FRY) and repealing Regulations (EC) 1295/98 and (EC) No 1607/98 [1999] OJ L153/63 . . . . . . . . . . . . . . . .277 Council Regulation (EC) 2488/2000 of 10 November 2000 maintaining a freeze of funds in relation to Mr Milosevic and those persons associated with him and repealing Regulations (EC) 1294/1999 and 607/2000 and Article 2 of Regulation (EC) 926/98 [2000] OJ L287/19 . . . . . . . . . . . . . . . .277 Council Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L12/1 . . . . . . . 49 Council Regulation (EC) 467/2001 of 6 March 2001 prohibiting the export of certain goods and services to

Table of Legal Instruments and Other Documents Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, and repealing Regulation (EC) 337/2000 [2001] OJ L67/1 . . . . . . . . . . . . . . . .276–8 Regulation (EC) 1049/2001 of the European Parliament and the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents [2001] OJ L145/43 . . . . . . .140, 171, 173–5, 309, 311 Recital 7 . . . . . . . . . . . . . . . . . . . . . . . . . 173 Art 1(a). . . . . . . . . . . . . . . . . . . . . . . . . . 175 Art 4 . . . . . . . . . . . . . . . . . . . . . . . 140, 173 (1)(a) . . . . . . . . . . . . . . . . . . . . . . . 173–5 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 Art 9(6)–(7) . . . . . . . . . . . . . . . . . . . . . . 173 Commission Regulation (EC) 2062/2001 of 19 October 2001 amending, for the third time, Regulation 467/2001 [2001] OJ L277/25 . . . 276 Commission Regulation (EC) 2199/2001 of 12 November 2001 amending, for the fourth time, Regulation 467/2001 [2001] OJ L295/16 . . . 276 Council Regulation (EC) 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism [2001] OJ L344/70 . . . . . . . . . . . . . . . . 181 Council Regulation (EC) 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, and repealing Regulation 467/2001 [2002] OJ L139/9. . . . . .276–8, 282 Art 2(3) . . . . . . . . . . . . . . . . . . . . . . . . .277

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Council Regulation (EC) 2368/2002 of 20 December 2002 implementing the Kimberley Process certification scheme for the international trade in rough diamonds [2002] OJ L358/28 . . . . . . . . . . . . . . . . 272 Council Regulation (EC) No 561/2003 of 27 March 2003 amending, as regards exceptions to the freezing of funds and economic resources, Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban [2003] OJ L82/1 . . . . . .277 Council Regulation (EC) No 807/2003 of 14 April 2003 adapting to Decision 1999/468/EC the provisions relating to committees which assist the Commission in the exercise of its implementing powers laid down in Council instruments adopted in accordance with the consultation procedure (unanimity) [2003] OJ L122/36 . . . . . . . . . . . . . . . . .92 Regulation (EC) No 1717/2006 of the European Parliament and of the Council of 15 November 2006 establishing the Instrument for Stability [2006] OJ L 327/1 . . . . 293 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 293 Commission Regulation (EC) No 1226/2007 of 17 October 2007 amending Council Regulation (EC) No 2368/2002 implementing the Kimberley Process certification scheme for the international trade in rough diamonds [2007] OJ L277/7 . . . . . . . . . . . . . . . . . 272 Joint Actions Joint Action 95/545/CFSP of 11 December 1995 adopted by the Council on the basis of Article J.3 of the Treaty on European Union with regard to the participation of the Union in the implementing structures of the peace plan for

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Bosnia-Herzegovina [1995] OJ L309/2 . . . . . . . . . . . . . . . . . 147 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 Joint Action 96/197/JHA of 4 March 1996 adopted by the Council on the basis of Article K.3 of the Treaty on European Union on airport transit arrangement [1996] OJ L63/8 . . . . . . . . . . . . . .178, 268 Joint Action 96/656/CFSP of 11 November 1996 adopted by the Council on the basis of Article J.3 of the Treaty on European Union in support of the democratic transition process in Zaire [1996] OJ L300/1 . . . . . . . . . . . 271 Joint Action 96/668/CFSP of 22 November 1996 adopted by the Council on the basis of Articles J.3 and K.3 of the Treaty on European Union concerning measures protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom [1996] OJ L309/7 . . . 117, 271, 296 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Joint Action 96/669/CFSP of 22 November 1996 adopted by the Council on the basis of Article J.3 of the Treaty on European Union on the Great Lakes Region [1996] OJ L312/1 . . . . . . 270 Joint Action 97/817/CFSP of 28 November 1997 adopted by the Council on the basis of Article J.3 of the Treaty on European Union, on antipersonnel landmines [1997] OJ L338/1 . . . . . . . . . . . . . . . . . 117 Joint Action 98/117/CFSP of 2 February 1998 adopted by the Council on the basis of Article J.3 of the Treaty on European Union in support of the Bosnian Peace Process [1998] OJ L35/1 . . . . . . . . . . . . . 271 Final Recital. . . . . . . . . . . . . . . . . . . . . . 271 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . 271 Joint Action 98/735/CFSP of 22 December 1998 adopted by the Council on the basis of Article J.3 of the Treaty on European Union in support of

the democratic process in Nigeria [1998] OJ L354/1 . . . . . . . . . . . . 117 Council Joint Action 2000/811/CFSP of 22 December 2000 on the European Union Monitoring Mission [2000] OJ L328/53 . . . . . . . . . . . . . . . . 156 Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . 156 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . 156 (2)–(3) . . . . . . . . . . . . . . . . . . . . . . . . 156 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 Council Joint Action 2001/554/CFSP of 20 July 2001 on the establishment of a European Union Institute for Security Studies [2001] OJ L200/1 . . . . . . . . . . . . . .117, 151 Recital 1 . . . . . . . . . . . . . . . . . . . . . . . . . 151 Recital 2 . . . . . . . . . . . . . . . . . . . . . . . . . 151 Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . 151 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Council Joint Action 2001/555/CFSP of 20 July 2001 on the establishment of a European Union Satellite Centre [2001] OJ L200/5. . . . . . . . .117, 151 Recital 1 . . . . . . . . . . . . . . . . . . . . . . . . . 151 Recital 5 . . . . . . . . . . . . . . . . . . . . . . . . . 151 Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . 151 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . 151 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Council Joint Action 2002/210/CFSP of 11 March 2002 on the European Union Police Mission [2002] OJ L70/1 . . . . . . . . . . . . . . . . . . 153 Art 7 para 2 . . . . . . . . . . . . . . . . . . . . . . 153 Council Joint Action 2002/589/CFSP of 12 July 2002 on the European Union’s contribution to combating the destabilising accumulation and spread of small arms and light weapons and repealing Joint Action 1999/34/CFSP [2002] OJ L191/1 . . . . . . . . . . . . . 179, 283 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 Council Joint Action 2003/92/CFSP of 27 January 2003 on the European Union military operation in the Former Yugoslav Republic of Macedonia [2003] OJ L34/26 . . . 153

Table of Legal Instruments and Other Documents Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . 153 Council Joint Action 2003/423/CFSP of 5 June 2003 on the European Union military operation in the Democratic Republic of Congo [2003] OJ L143/50 . . . . . . . . . . . 153 Art 7(1) . . . . . . . . . . . . . . . . . . . . . . . . . 153 Art 10. . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Council Joint Action 2003/472/CFSP of 24 June 2003 on the continuation of the European Union cooperation programme for non-proliferation and disarmament in the Russian Federation [2003] OJ L157/69. . . 147 Art 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . 147 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 Council Joint Action 2004/523/CFSP of 28 June 2004 on the European Union Rule of Law Mission in Georgia, EUJUST THEMIS [2004] OJ L228/21 . . . . . . . . . . . . . . . . . . . 154 Council Joint Action 2004/551/CFSP of 12 July 2004 on the establishment of the European Defence Agency [2004] OJ L245/17. . . . . . . . . . . 117 Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . 152 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . 152 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Council Joint Action 2004/570/CFSP of 12 July 2004 on the European Union military operation in Bosnia and Herzegovina [2004] OJ L252/10 . . . . . . . . . . . . . . . . 117 Council Joint Action 2004/796/CFSP of 22 November 2004 for the support of the physical protection of a nuclear site in the Russian Federation [2004] OJ L349/57 . . . 129 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Art 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . 149 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Annex I, para 5. . . . . . . . . . . . . . . . . . . . 149 Council Joint Action 2004/847/CFSP of 9 December 2004 on the European Union Police Mission in Kinshasa

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(DRC) regarding the Integrated Police Unit (EUPOL ‘Kinshasa’) [2004] OJ L367/30 . . . . . . . . . . 117 Council Joint Action 2005/190/CFSP of 7 March 2005 on the European Union Integrated Rule of Law Mission for Iraq, EUJUST LEX [2005] OJ L62/37 . . . . . . . . . . . 154 Council Joint Action 2005/575/CFSP of 18 July 2005 establishing a European Security and Defence College (ESDC) [2005] OJ L194/15 . . . . 117 Council Joint Action 2005/643/CFSP of 9 September 2005 on the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission — AMM) [2005] OJ L234/13 . . . . . . . . . . . . . . . . . . . 154 Art 10(3) . . . . . . . . . . . . . . . . . . . . . . . . 154 Council Joint Action 2006/49/CFSP of 30 January 2006 appointing the European Union Special Representative in Bosnia and Herzegovina [2006] OJ L26/21 . . . . . . . . . . . . . . . . . 164 Council Joint Action 2006/184/CFSP of 27 February 2006 in support of the Biological and Toxin Weapons Convention, in the framework of the EU Strategy against the Proliferation of Weapons of Mass Destruction [2006] OJ L65/51 . . . . . . . . . . . . . . . . . 119 Council Joint Action 2007/185/CFSP of 19 March 2007 on support for OPCW activities in the framework of the implementation of the EU Strategy against Proliferation of Weapons of Mass Destruction [2007] OJ L85/10. . . . . . . . . . . . 118 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Council Joint Action 2007/805/CFSP of 6 December 2007 appointing a European Union Special Representative to the African Union [2007] OJ L323/45 . . . . . 148 Council Joint Action 2007/806/CFSP of 6 December 2007 amending Joint Action 2005/797/CFSP on the European Union Police Mission

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for the Palestinian Territories [2007] OJ L323/50 . . . . . . . . . . 155 Recital 2 . . . . . . . . . . . . . . . . . . . . . . . . . 155 Council Joint Action 2008/123/CFSP of 4 February 2008 appointing a European Union Special Representative to Kosovo [2008] OJ L42/88 . . . . . . . . . . . . . . . . . 148 Art 3(c) . . . . . . . . . . . . . . . . . . . . . . . . . 155 Art 11(2) . . . . . . . . . . . . . . . . . . . . . . . . 155 Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO [2008] OJ L42/92 . . . . . . . . . . . . . 121, 155 Art 7(1) . . . . . . . . . . . . . . . . . . . . . . . . . 155 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 Art 11(2) . . . . . . . . . . . . . . . . . . . . . . . . 155 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 Art 12(1) . . . . . . . . . . . . . . . . . . . . . . . . 155 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 Art 13(3) . . . . . . . . . . . . . . . . . . . . . . . . 156 Common Positions Common Position 94/779/CFSP of 28 November 1994 defined by the Council on the basis of Article J.2 of the Treaty on European Union on the objectives and priorities of the European Union towards Ukraine [1994] OJ L313/1 . . . . . 271 Common Position 95/413/CFSP of 2 October 1995 defined by the Council on the basis of Article J.2 of the Treaty on European Union on Angola [1995] OJ L245/1 . . . . . . . . . . . . . . . . . 270 Common Position 95/544/CFSP of 4 December 1995 defined by the Council on the basis of Article J.2 of the Treaty on European Union, on Nigeria [1995] OJ L309/1 . . .203 Common Position 96/407/CFSP of 25 June 1996 defined by the Council on the basis of Article J.2 of the Treaty on European Union, concerning East Timor [1996] OJ L168/2 . . . . . . . . . . . . . . . . . 124

Common Position 96/635/CFSP of 28 October 1996 defined by the Council on the basis of Article J.2 of the Treaty on European Union, on Burma/Myanmar [1996] OJ L287/1 . . . . . . . . . . . . . . . . . 270 Common Position 96/746/CFSP of 17 December 1996 defined by the Council on the basis of Article J.2 of the Treaty on European Union concerning the imposition of an embargo on arms, munitions and military equipment on Afghanistan [1996] OJ L342/1 . . . 203, 276, 282 Common Position 1999/206/CFSP of 15 March 1999 defined by the Council on the basis of Article J.2 of the Treaty on European Union, concerning Ethiopia and Eritrea [1999] OJ L72/1 . . . . . . . . . . . . .203 Common Position 2001/154/CFSP concerning additional restrictive measures against the Taliban and amending Common Position 96/746/CFSP [2001] OJ L57/1 . . . . . . . . . 276, 282 Council Common Position 2001/758/CFSP of 29 October 2001 on combating the illicit traffic in conflict diamonds, as a contribution to prevention and settlement of conflicts [2001] OJ L286/2 . . . . . . . . . . . . . . . . . 272 Council Common Position 2001/930/ CFSP of 27 December 2001 on combating terrorism [2001] OJ L344/90 . . . . . . . . . . . . 119, 296 Council Common Position 2001/931/ CFSP of 27 December 2001 on the application of specific measures to combat terrorism [2001] OJ L344/93 . . . . 119, 184, 208, 270 Arts 2–3 . . . . . . . . . . . . . . . . . . . . . 270, 296 Council Common Position 2002/400/CFSP of 21 May 2002 concerning the temporary reception by Member States of the European Union of certain Palestinians [2002] OJ L138/33 . . . . . . . . . . . . . . . .203 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . .203 Common Position 2002/402/CFSP concerning restrictive measures

Table of Legal Instruments and Other Documents against Usama bin Laden, members of the Al-Qaeda organization and the Taliban and other individuals, groups, undertakings and entities associated with them and repealing Common Positions 96/746, 1999/727, 2001/154 and 2001/771/CFSP [2002] OJ L139/4 . . . . . . . . . . . . . 277, 282 Council Common Position 2004/493/CFSP of 17 May 2004 amending Common Position 2002/400/ CFSP concerning the temporary reception by Member States of the European Union of certain Palestinians [2004] OJ L181/24 . . . . . . . . . . . . . . . .203 Council Common Position 2005/725/ CFSP of 17 October 2005 updating Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and repealing Common Position 2005/427/ CFSP [2005] OJ L272/28 . . . . . 119 Council Common Position 2006/242/ CFSP of 20 March 2006 relating to the 2006 Review Conference of the Biological and Toxin Weapons Convention (BTWC) [2006] OJ L88/65 . . . . . . . . . . . . . . . . . 119 Council Common Position 2007/469/ CFSP of 28 June 2007 relating to the 2008 Review Conference of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC) [2007] OJ L176/39 . . . . . . . . . . . . . 118–19 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Common Position 2007/705/CFSP of 30 October 2007 concerning the temporary reception by Member States of the European Union of certain Palestinians [2007] OJ L 285/54 . . . . . . . . . . . . . . . .203 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . .203 Council Common Position 2008/160/CFSP of 25 February 2008 concerning restrictive measures against the leadership of the Transnistrian

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region of the Republic of Moldova [2008] OJ L51/23 . . . . . . . . . . . .203 Common Strategies Common Strategy 1999/414/CFSP of the European Union of 4 June 1999 on Russia [1999] OJ L157/1. . . 114, 146 European Council Common Strategy 1999/877/CFSP of 11 December 1999 on Ukraine [1999] OJ L331/1 . . . . . . . . . . . . . . . . . 114 Common Strategy 2000/458/CFSP of the European Council of 19 June 2000 on the Mediterranean region [2000] OJ L183/5 . . . . . . . . . . . . . . . . . 114 Common Strategy 2003/471/CFSP of the European Council of 20 June 2003 amending Common Strategy 1999/414/CFSP on Russia in order to extend the period of its application [2003] OJ L157/68 . . . . . . . . . . . 114 Common Strategy 2003/897/CFSP of the European Council of 12 December 2003 amending Common Strategy 1999/877/CFSP on Ukraine in order to extend the period of its application [2003] OJ L333/96 . . . . . . . . . . .114 Framework Decisions Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings [2001] OJ L82/1. . . . . . . . . . . . .206 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . .206 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . .206 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . .206 Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law [2003] OJ L29/55 . . . . . . . . .178 Council Framework Decision 2005/667/ JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution [2005] OJ L255/164 . . . . . . . . . . . . . . . . . . 179 Decisions Council Decisions Council Decision 81/462/EEC of 11 June 1981 on the conclusion of the Convention

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Table of Legal Instruments and Other Documents on long-range transboundary air pollution [1981] OJ L171/11 . . . . .30 Decision 90/674/EEC of 19 November 1990 on the conclusion of the Agreement establishing the European Bank for Reconstruction and Development [1990] OJ L372/1 . . . . . . . . . . . . . . . . . .30 Decision 91/602/EEC of 25 November 1991 denouncing the Cooperation Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia [1991] OJ L325/23 . . . . . . . . . . . .90 Decision 93/678/CFSP of 6 December 1993 on a joint action adopted by the Council on the basis of Article J.3 of the Treaty on European Union concerning support for the transition towards a democratic and multi-racial South Africa [1993] OJ L316/45 . . . . . . . . . . . . . . .146–7 Decision 93/729/CFSP of 20 December 1993 supplementing the joint action on support for the convoying of humanitarian aid in Bosnia-Herzegovina [1993] OJ L339/3 . . . . . . . . . . . . . . . . . . . . 270 Decision 93/731/EC of 20 December 1993 on public access to Council documents [1993] OJ L 340/43 . . . . . . . . . . 172 Decision 94/366/CFSP of 13 June 1994 on the Common Position defined by the Council on the basis of Article J.2 of the Treaty on European Union concerning prohibition of the satisfaction of the claims referred to in paragraph 9 of United Nations Security Council Resolution No 757 (1992) [1994] OJ L165/1 . . . . . . . . . . . . . . . . . 270 Decision 94/578/EC of 18 July 1994 concerning the conclusion of the Co-operation Agreement between the European Community and the Republic of India on Partnership and Development [1994] OJ L223/23 . . . . . . . . . . . . . . . . . . . 237

Council Decision 1999/361/EC of 31 May 1999 implementing Common Position 98/633/CFSP defined by the Council on the basis of Article J.2 of the Treaty on European Union concerning the process on stability and good- neighbourliness in South-East Europe [1999] OJ L141/1 . . . . . . . . . . . . . . . . . 148 Council Decision 2000/527/EC of 14 August 2000 amending Decision 93/731/ EC on public access to Council documents and Council Decision 2000/23/EC on the improvement of information on the Council’s legislative activities and the public register of Council documents [2000] OJ L212/9 . . . . . . . . . . . 172 Council Decision 2001/78/CFSP, of 22 January 2001 setting up the Political and Security Committee [2001] OJ L27/1 . . . . . . . . . . . . . 132 para 1(d). . . . . . . . . . . . . . . . . . . . . . . . . 132 Council Decision 2001/79/CFSP of 22 January 2001 setting up the Military Committee of the European Union [2001] OJ L27/4 . . . . . . . . . . . . . 152 Annex, para 1 . . . . . . . . . . . . . . . . . . . . . 152 para 2 . . . . . . . . . . . . . . . . . . . . . . . . . 152 Council Decision 2001/80/CFSP of 22 January 2001 on the establishment of the Military Staff of the European Union [2001] OJ L27/7 . . . . . . . 152 Council Decision 2001/264/EC of 19 March 2001 adopting the Council’s security regulations [2001] OJ L101/1 . . . . . . . . . . . . . . . . 170, 173 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 . . . . . . . . . . . . 145 Council Decision 2002/460/EC of 17 June 2002 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism

Table of Legal Instruments and Other Documents and repealing Decision 2002/334/ EC [2002] OJ L 160/26 . . . . . . . 181 Council Decision 2003/211/CFSP of 24 February 2003 concerning the conclusion of the Agreement between the European Union and the North Atlantic Treaty Organisation on the Security of Information [2003] OJ L80/35 . . . . . . . . . 103, 139, 174 Council Decision 2003/479 of 16 June 2003 concerning the rules applicable to national experts and military staff on secondment to the General Secretariat of the Council and repealing the Decisions of 25 June 1997 and 22 March 1999, Decision 2001/41/EC and Decision 2001/496/CFSP [2003] OJ L160/72. . . . . . . 152, 203 Council Decision 2003/516/EC of 6 June 2003 concerning the signature of the Agreements between the European Union and the United States of America on extradition and mutual legal assistance in criminal matters [2003] OJ L181/25 . . . . . . . . . . . 139 Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . 139 Council Decision 2003/874/CFSP of 8 December 2003 implementing Joint Action 2003/472/CFSP with a view to contributing to the European Union cooperation programme for non-proliferation and disarmament in the Russian Federation [2003] OJ L326/49 . . . . . . . . . . . . . . . . 147 Council Decision 2004/306/EC of 2 April 2004 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2003/902/EC [2004] OJ L 99/28 . . . . . . . . . . . . . . . . . 181 Council Decision 2004/496/EC of 17 May 2004 on the conclusion of an Agreement between the European Community and the United States of America on the processing and transfer of PNR data by Air Carriers

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to the United States Department of Homeland Security, Bureau of Customs and Border Protection [2004] OJ L183/83. . . . .85–86, 300 Preamble, Recital 2 . . . . . . . . . . . . . . . . . 85 Council Decision 2004/833/CFSP of 2 December 2004 implementing Joint Action 2002/589/CFSP with a view to a European Union contribution to ECOWAS in the framework of the moratorium on small arms and light weapons [2004] OJ L359/65. . . . . . . 179, 283 Art 1(2) . . . . . . . . . . . . . . . . . . . . . . . . .288 Council Decision 2004/849/EC of 25 October 2004 on the signing, on behalf of the European Union, and on the provisional application of certain provisions of the Agreement between the European Union, the European Community and the Swiss Confederation concerning the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis [2004] OJ L368/26 . . . . . . . . . .297 Council Decision 2004/860/EC of 25 October 2004 on the signing, on behalf of the European Community, and on the provisional application of certain provisions of the Agreement between the European Union, the European Community and the Swiss Confederation, concerning the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis [2004] OJ L370/78 . . . . . . . . . . . . . . . .297 Council Decision 2005/395/CFSP of 10 May 2005 amending Decision 2001/80/ CFSP on the establishment of the Military Staff of the European Union [2005] OJ L132/17 . . . . . 152 Council Decision 2005/930/EC of 21 December 2005 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing

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Table of Legal Instruments and Other Documents Decision 2005/848/EC [2005] OJ L340/64 . . . . . . . . . . . . . . . . 181 Decision 2006/379/EC of 29 May 2006 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2005/930/ EC [2006] OJ L144/21 . . . 176, 181 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 . . . . . . . . .87 Decision 2006/729/CFSP/JHA of 16 October 2006 on the signing, on behalf of the European Union, of an Agreement between the European Union and the United States of America on the processing and transfer of passenger name record (PNR) data by air carriers to the United States Department of Homeland Security [2006] OJ L298/27 . . . . . . . . . . . . . . . . . . .296 Decision 2007/665/CFSP of 28 September 2007 concerning the conclusion of an Agreement between the European Union and the Republic of Croatia on the participation of the Republic of Croatia in the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN) [2007] OJ L270/27 . . . . . . . . . . 145 Decision 2007/670/CFSP of 1 October 2007 concerning the conclusion of an Agreement between the European Union and New Zealand on the participation of New Zealand in the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN) [2007] OJ L274/17 . . . . . . . . . . . . . . . . 145

Political and Security Committee Decisions Political and Security Committee Decision FYROM/1/2003 of 18 February 2003 on the setting-up of the Committee of Contributors for the

European Union Military Operation in the Former Yugoslav Republic of Macedonia [2003] OJ C62/1 . . . 154 Political and Security Committee Decision 2003/529/CFSP DRC 2/2003 of 11 July 2003 on the setting up of the Committee of Contributors for the European Union military operation in the Democratic Republic of Congo [2003] OJ L184/13 . . . . . 154 Political and Security Committee Decision 2004/739/CFSP BiH/3/2004 of 29 September 2004 on the setting-up of the Committee of Contributors for the European Union military operation in Bosnia and Herzegovina [2004] OJ L325/64 . . . . . . . . . . . . . . . . 154 Political and Security Committee Decision 2005/229/EC EUPM/1/2005 of 4 March 2005 on the setting-up of the Committee of Contributors for the European Union Police Mission (EUPM) in Bosnia and Herzegovina [2005] OJ L72/23 . . . . . . . . . . . 154 Political and Security Committee Decision 2005/230/EC Proxima/3/2005 of 4 March 2005 on the setting-up of the Committee of Contributors for the European Union Police Mission (EUPOL Proxima) in the former Yugoslav Republic of Macedonia (FYROM) [2005] OJ L72/25 . . . 154 Political and Security Committee Decision 2005/483/CFSP BiH/6/2005 of 14 June 2005 on the appointment of an EU Force Commander for the European Union Military Operation in Bosnia and Herzegovina [2005] OJ L173/14 . . . . . . . . . . . . . . . . 154 Political and Security Committee Decision 2005/714/CFSP BiH/7/2005 of 20 September 2005 on the appointment of the Head of the EU Command Element at Naples for the European Union military operation in Bosnia and Herzegovina [2005] OJ L271/41 . . . . . . . . . . . . . . . . 154 Political and Security Committee Decision 2005/860/EC ACEH/1/2005 of 15 November 2005 on the

Table of Legal Instruments and Other Documents establishment of the Committee of Contributors for the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission — AMM) [2005] OJ L317/16 . . . . . . . . . . . . . . . . 154 Political and Security Committee Decision 2008/125/CFSP EULEX/1/2008 of 7 February 2008 concerning the appointment of the Head of Mission of the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO [2008] OJ L42/99 . . . . . . . . . 154–5 Commission Decisions Commission Decision 2004/535/EC of 14 May 2004 on the adequate protection of personal data contained in the Passenger Name Record of air passengers transferred to the United States’ Bureau of Customs and Border Protection (notified under document number C(2004) 1914) [2004] OJ L235/11 . . . . . . . . . . . . . . . .300 Decision of the Commission of the European Communities approving a project relating to the security of the borders of the Republic of the Philippines to be financed by budget line 19 10 02 in the general budget of the European Communities (Philippines Border Management Project, No ASIA/2004/016–924) (not published in the Official Journal of the European Union) . . . . . . . . 92 Various Decisions Decision of the Secretary-General of the Council/High Representative for the Common Foreign and Security Policy of 27 July 2000 on measures for the protection of classified information applicable to the General Secretariat of the Council [2000] OJ C239/1 . . . . . . . . . . . 172 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . 172 European Parliament decision of 23 October 2002 on the implementation of the Interinstitutional Agreement

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governing European Parliament access to sensitive Council information in the sphere of security and defence policy [2002] OJ C298/4. . . . . . . . . . . . . . . . . . . . 163 Decision 2004/763/CFSP of the European Council of 5 November 2004 amending Common Strategy 2000/458/CFSP on the Mediterranean region in order to extend the period of its application [2004] OJ L337/72 . . . . . . . . . . 114 Council and Commission Decision 2004/239/ EC, Euratom of 23 February 2004 concerning the conclusion of the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part [2004] OJ L84/1 . . . . . . . . . . . . . . . . . . 129 Decision of the Council and the Member States establishing the Community’s and the Member States’ position within the General Council of the WTO on the accession of the Socialist Republic of Viet Nam to the WTO (COM/2005/0659 finalACC 2006/0215) . . . . . . . . . . . .220 Decision of the Representatives of the Government of the Member States, meeting within the Council of 30 November 2006 adapting Decision 96/409/CFSP on the establishment of an emergency travel document, in order to take account of the accession of Bulgaria and Romania to the European Union [2006] OJ L363/422 . . . . . . . . . . . . . . . . . . 119 Interinstitutional Agreements and Framework Agreements Interinstitutional Agreement of 6 May 1999 between the European Parliament, the Council and the Commission on budgetary discipline and improvement of the budgetary procedure [1999] OJ C172/1 . . . 161 points 39–40 . . . . . . . . . . . . . . . . . . . . . 162 point 40 . . . . . . . . . . . . . . . . . . . . . . . . . 163

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Framework Agreement on relations between the European Parliament and the Commission [2001] OJ C121/122 . . . . . . . . . . . . . . . . 82 paras 2–3 . . . . . . . . . . . . . . . . . . . . . . . . . 82 para 4 . . . . . . . . . . . . . . . . . . . . . . . . .90–91 para 12 . . . . . . . . . . . . . . . . . . . . . . . . . . 163 Interinstitutional Agreement of 20 November 2002 between the European Parliament and the Council concerning access by the European Parliament to sensitive information of the Council in the field of security and defence policy [2002] OJ C298/1 . . . . . . . . . . . . . . . . . 163 Framework Agreement on relations between the European Parliament and the Commission [2006] OJ C117E/123 . . . . . . . . . . . 82, 163 para 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 para 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 para 20 . . . . . . . . . . . . . . . . . . . . . . . .90–91 Interinstitutional Agreement of 17 May 2006 between the European Parliament, the Council and the Commission on budgetary discipline and sound financial management [2006] OJ C139/1 . . . . . . . . . . . . . . . . . . . . 162 points 42–43 . . . . . . . . . . . . . . . . . . . . . 162 point 43 . . . . . . . . . . . . . . . . . . . . . . . . . 163

Presidency Conclusions of the Göteborg European Council, 15 and 16 June 2001 . . . . . . . . . . . . . . . 153 para 48 . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Presidency Conclusions of the Laeken European Council, 14 and 15 December 2001 . . . . . . . . . 122, 144 Annex II, paras A, C. . . . . . . . . . . . . . . . 151 Presidency Conclusions of the Seville European Council, 21 and 22 June 2002 . . . . . . . . . . . . . . . 136 Annex II. . . . . . . . . . . . . . . . . . . . . . . . . 136 Presidency Conclusions of the Brussels European Council, 24 and 25 October 2002 . . . . . . . . . . . . . . 103 paras 18–23 . . . . . . . . . . . . . . . . . . . . . . 103 Annex II. . . . . . . . . . . . . . . . . . . . . . . . . 103 Presidency Conclusions of the Brussels European Council, 17 and 18 June 2004 . . . . . . . . . . . . . . . . . . . . . 103 para 62 . . . . . . . . . . . . . . . . . . . . . . 151, 154 para 64 . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Annex . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Presidency Conclusions of the Brussels European Council, 16–17 June 2005 . . . . . . . . . . . . . . . . . . . . .220 paras 55–56 . . . . . . . . . . . . . . . . . . . . . .220 Presidency Conclusions of the Brussels European Council, 14 December 2007 . . . . . . . . . . . . . . . . . . . . . 121 para 70 . . . . . . . . . . . . . . . . . . . . . . . . . . 121

Presidency Conclusions Presidency Conclusions of the Cologne European Council, 3 and 4 June 1999 . . . . . .126 para 55 . . . . . . . . . . . . . . . . . . . . . . . . . .126 Annex III, para 4 . . . . . . . . . . . . . . . . . . 152 Presidency Conclusions of the Helsinki European Council, 10 and 11 December 1999 . . . . . . . . . . . . .126 Annexes I–IV. . . . . . . . . . . . . . . . . . . . . 151 Presidency Conclusions of the Santa Maria da Feira European Council, 19 and 20 June 2000 . . . . . 103, 153 Annex I, Appendix . . . . . . . . . . . . . . . . . 103 Appendices 3–4 . . . . . . . . . . . . . . . . . 153 Presidency Conclusions of the Nice European Council, 7, 8, and 9 December 2000 . . . . . . . . . . . . . . . . . . . . . 103 Annexes II–IV . . . . . . . . . . . . . . . . . . . . 153 Annex VII to VI. . . . . . . . . . . . . . . . . . . 103

Declarations and Statements Schuman Declaration, 9 May 1950 (available at http://europa.eu/abc/symbols/ 9-may/decl_en.htm) . . . . . . . . . . . 6 Solemn Declaration of Stuttgart on European Union, adopted by the European Council on 19 June 1983, Bulletin of the European Communities 6 . . . . . . . . . . . 86, 126 para 2.3.7 . . . . . . . . . . . . . . . . . . . . . . . . .86 Draft Treaty establishing the European Union of 14 February 1984, Bulletin of the European Communities 8–26 . . . . . . . . . . .166 Declaration on Articles 109, 130r and 130y of the Treaty establishing the European Community, annexed to the Final Act of the Treaty on European Union [1992] OJ C191/1 . . . . . . . 63

Table of Legal Instruments and Other Documents Declaration No. 8 on Article 109 of the Treaty establishing the European Community, annexed to the Treaty on European Union [1992] OJ C191/99 . . . . . . . . . . . . . . . . . . . . 78 Petersberg Declaration, Western European Union, Council of Ministers, Bonn, 19 June 1992 (Brussels: Press and Information Service, 1992) . . . 104–5 para 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 para 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts – Declarations adopted by the Conference – Declaration on the establishment of a policy planning and early warning unit [1997] OJ C340/132 . . . . . . . . . . . . . . . 130 St Malo Declaration, 4 December 1998 (available at http://www. atlanticcommunity.org/ Saint-Malo%20Declaration% 20Text.html) . . . . . . . . . . . 126, 150 Presidency Conclusions of the Laeken European Council of 14 and 15 December 2001, Annex I: Laeken Declaration on the future of the European Union, Bulletin of the European Union 19–23. . . . . . . . . . . . . 144, 221, 314 Declaration on Article I-6, annexed to the Treaty establishing a Constitution for Europe [2004] OJ C310/420 . . . . . . . . . 211 Joint statement by the Council and the representatives of the governments of the Member States meeting within the Council, the European Parliament and the Commission on European Union Development Policy: ‘The European Consensus’ [2006] OJ C46/1 . . . . . . . . . . . .286 European Parliament Resolutions Resolution on the failure to consult Parliament on the EU-Russia Interim Agreement [1996] OJ C47/26 . . . 86 European Parliament resolution on the annual report from the Council to the

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European Parliament on the main aspects and basic choices of CFSP, including the financial implications for the general budget of the European Communities – 2003 (8412/2004 –2004/2172(INI)) [2006] OJ C33E/573 . . . . . . . . . 162 point A . . . . . . . . . . . . . . . . . . . . . . . . . . 162 European Parliament resolution on the annual report from the Council to the European Parliament on the main aspects and basic choices of CFSP, including the financial implications for the general budget of the European Union – 2004 (2005/2134(INI)) [2006] OJ C287E/59 . . . . . . . . . . . . . . . . . 162 points A–B . . . . . . . . . . . . . . . . . . . . . . . 162 European Parliament resolution on the annual report from the Council to the European Parliament on the main aspects and basic choices of CFSP, including the financial implications for the general budget of the European Union – 2005 (2006/2217(INI)) [not yet published in the OJ] . . . . . . . . . . 162 points A–B . . . . . . . . . . . . . . . . . . . . . . . 162 Proposed Legal Instruments Proposal for a Regulation of the Council establishing an Instrument for Stability, COM(2004) 630 final. . . . . . . . . . . . . . . . . . . 293 Documents from the Convention on the Future of Europe and the 2004 IGC European Convention, Working Group III, Working document 26 (WG III – WD 26). European Convention, Final Report of Working Group III on Legal Personality (CONV 305/02) . . . . . . . . . .143–5 para 20 . . . . . . . . . . . . . . . . . . . . . . . . . . 145 European Convention, Working Group VII, Working document 17 (WG VII – WD 17) European Convention, Final Report of Working Group VII on External Action (CONV 459/02) . . . . . . . . . . . . 213 paras 25–40 . . . . . . . . . . . . . . . . . . . . . . 213

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Communication from the Commission. A Constitution for the Union. Opinion of the Commission, pursuant to Article 48 of the Treaty on European Union, on the Conference of representatives of the Member States’ governments convened to revise the Treaties, Brussels, 17 September 2003, COM(2003)548 . . . . . . . .217 Draft Articles on external action in the Constitutional Treaty, CONV 685/03 . . . . . . . . . . . . . . . . . . . . 278 para 21 . . . . . . . . . . . . . . . . . . . . . . . . . . 278 Meeting of Heads of State or Government at Brussels on 17/18 June 2004, CIG 85/04, PRESID 27 . . . . . . . . . . . 137 Suggestion for Amendment of Article I-39 [DTC], by Mr Hain (available at http://european-convention.eu.int/ Docs/Treaty/pdf/29/29_Art%20 I%2039%20Hain%20EN. pdf) . . . . . . . . . . . . . . . . . . . . . .263 Reports Report to the European Council in Lisbon on the likely development of the Common Foreign and Security Policy (CFSP) with a view to identifying areas open to joint action vis-à-vis particular countries or groups of countries, adopted by the European Council at Lisbon on June 26th and 27th 1992 (available at http://www.europarl.eu.int/ summits/lisbon/li2_en.pdf) . . . 107 Court of Auditors Special Report No 13/2001 on the management of the common foreign and security policy (CFSP), together with the Council’s replies and the Commission’s replies (pursuant to Article 248(4), second subparagraph, EC) (2001/C 338/01) [2001] OJ C338/1 . . . . . . . . .148–9 Presidency Report on ESDP to the European Council at Brussels, 18 June 2007, Doc no 10910/07 CFSP 789. . . . 155 para 34 . . . . . . . . . . . . . . . . . . . . . . . . . . 155 Action Plans, Strategies, and Goals A Secure Europe in a Better World. European Security Strategy, Brussels 12

December 2003 (available at http://ue.eu.int/uedocs/ cmsUpload/78367.pdf) . . . . . . . 151 EU strategy against proliferation of Weapons of Mass Destruction, endorsed by the Council of the European Union on 9 December 2003, 15708/03, and adopted by the European Council on 12 December 2003 (available at http://www.consilium. europa.eu/uedocs/cmsUpload/ st15708.en03.pdf) . . . . . . . . . . . 149 Headline Goal 2010, approved by General Affairs and External Relations Council on 17 May 2004, endorsed by the European Council of 17 and 18 June 2004 (available at http://ue.eu.int/uedocs/ cmsUpload/2010%20Headline%20 Goal.pdf) . . . . . . . . . . . . . . . . . . 151 Council and Commission Action Plan implementing the Hague Programme on strengthening freedom, security and justice in the European Union [2005] OJ C198/1 . . . . . . . . . . . . . . . . .220 para 3.2(l) . . . . . . . . . . . . . . . . . . . . . . .220 EU Strategy to combat illicit accumulation and trafficking of SALW and their ammunition, Doc. No. 5319/06 CFSP 31, Brussels, 13 January 2006 (available at http://register. consilium.europa.eu/pdf/en/06/ st05/st05319.en06.pdf) . . .284, 286 Other EU Documents Reply of 30 November 2000 to Written Question E–2810/00 of 6 September 2000 by Jeff rey Titford (EDD) to the Council [2001] OJ C113E/181. . . . . . . . .248 Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions. Proposal for a Joint Declaration by the Council, the European Parliament and the Commission on the European Union Development Policy. “The

Table of Legal Instruments and Other Documents European Consensus”, SEC(2005) 929}, Brussels, 13 July 2005, COM(2005) 311 final . . . . . . . . 293 para 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . 293 European Parliament, Committee on Foreign Affairs, Meeting Tuesday 10 October 2006, Published Draft Agenda, AFET(2006) 1010_1 . . . . . . . . . . . . . . . . . . . . 164 Council Press Release 5714/07 of 30 January 2007 . . . . . . . . . . . . 181 I N T E R N AT ION A L T R E AT I E S A N D C ON V E N T IONS Revised Convention for Rhine Navigation of 17 October 1868 as set out in the text of 20 November 1963 (available at http://www.ccr-zkr.org/Files/ convrev_e.pdf). . . . . . . . . . . .54–55 Charter of the United Nations, 26 June 1945, 59 Stat. 1031; TS 993; 3 Bevans 1153 . . . . . . 109, 285, 314 Art 19(2) . . . . . . . . . . . . . . . . . . . . . . . . 261 Art 51. . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Art 103. . . . . . . . . . . . . . . . . . . . . . . . . . 102 General Agreement on Tariffs and Trade GATT (1947), 55 UNTS 194; 61 Stat. pt. 5; TIAS 1700 . . . . . . . . . . . . . . . . . 247 Art XXIV(8)(a) . . . . . . . . . . . . . . . . . . . . 41 Treaty for Collaboration in Economic, Social, and Cultural Matters, and for Collective Self-Defense of 17 March 1948 (Brussels Treaty), 19 UNTS 51; 43 AJILs 59 . . . . . . . . . . . . . . . . 104 Art V . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 North Atlantic Treaty of 4 April 1949, 34 UNTS 243; 43 AJILs 159 . . . . . 104 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, 213 UNTS 221. . . . . . . 30–31, 94, 141, 197, 251 Preamble . . . . . . . . . . . . . . . . . . . . . . . . 159 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Convention between the French Republic, the Federal Republic of Germany and

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the Grand Duchy of Luxembourg concerning the Canalisation of the Moselle, 27 October 1956 (modified 28 November 1974) . . . . . . . . . . . . . . . . . . .54–55 North-East Atlantic Fisheries Convention of 24 January 1959, 486 UNTS 157, replaced by the Convention on Future Multilateral Co-operation in the North East Atlantic Fisheries, 18 November 1980, 285 UNTS 129 [1981] OJ L227/21 . . . . . . . . .60 Vienna Convention on Diplomatic Relations, 18 April 1961, 500 UNTS 95; 23 UST 3227; 55 AJIL 1064 (1961) . . . . . . . . . . . .262 Art 45. . . . . . . . . . . . . . . . . . . . . . . . . . .262 Agreement establishing an association between the European Economic Community and Greece [1963] OJ 294, OJ Spec Ed Series II Volume I(1), 3 . . . . . . . . . . . . . . . . . . . . . 232 Vienna Convention on Consular Relations, 24 April 1963, 596 UNTS 261; 21 UST 77; TIAS 6820 . . . . . . . .34 Art 36, para 1 . . . . . . . . . . . . . . . . . . . . . .34 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, [1973] C113/1, [1977] L361 . . . . . . . . . . . . . 90, 272 Treaty on the non-proliferation of Nuclear Weapons of 1 July 1968, 729 UNTS 161; 7 ILM 8809 (1968) . . . . . . . . . . . . . . . . . . . . 129 Vienna Convention on the Law of Treaties, 23 May 1969, UN Doc. A/ Conf.39/27; 1155 UNTS 331; 8 ILM 679 (1969); 63 AJIL 875 (1969) Art 2(1)(a) . . . . . . . . . . . . . . . . . . . . . . .240 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . .84 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . .240 Art 25 . . . . . . . . . . . . . . . 83, 139, 141, 241 Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . .36 Art 31. . . . . . . . . . . . . . . . . . . . . . . . . . . 102 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . .268 Art 62 . . . . . . . . . . . . . . . . . . . . . . . . . . 116

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European Agreement Concerning the Work of Crews of Vehicles Engaged in International Road Transport (Accord européen relatif au travail des équipages des véhicules effectuant des transports internationaux par route), United Nations, Economic Commission for Europe, Inland Transport Committee, Geneva, 1 July 1970 (AETR/ERTA), E/ECE/811; E/ ECE/TRANS/564, consolidated version 7 May 1999, TRANS/ SC.1/1999/4. . . . . . . . . . . . . . . . .22 Agreement establishing an association between the European Economic Community and Malta – Protocol concerning the definition of the concept of ‘originating products’ and methods of administrative cooperation – Final Act – Joint Declarations – Declarations by the Delegation of Malta [1971] OJ L61/2 . . . . . . . . . . . . . . . . . . 235 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 10 April 1972, 1015 UNTS 163; ILM 309 (1972) . . . . . . . . . . . . . . . . . . . . 119 Agreement establishing an Association between the European Economic Community and the Republic of Cyprus – Protocol concerning the definition of the concept of ‘originating products’ and methods of administrative cooperation – Final Act – Joint Declarations – Unilateral Declarations [1973] OJ L133/2 . . . . . . . . . . . . . . . . . 235 Conference on Security and Co-operation in Europe Final Act, Helsinki, 1975, (available at http://www.osce.org/ documents/mcs/1975/08/4044_ en.pdf) . . . . . . . . . . . . . . . . 102, 285 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3; 21 ILM 1261 (1982) . . . . . . . . . 66, 177, 238, 244 Annex IX, Art 2 . . . . . . . . . . . . . . . . . . .246

Art 3(1) . . . . . . . . . . . . . . . . . . . . . . .246 Vienna Convention on the Law of Treaties between States and International Organizations or Between International Organizations, 25 ILM 543 (1986) . . . . . . . . . . . 67 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . .84 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . .240 Art 25 . . . . . . . . . . . . . . . . . . . 83, 139, 141 Lugano Convention: Convention on jurisdiction and the enforcement of judgments in civil and commercial matters done at Lugano on 16 September 1988 [1988] OJ L319/9 . . . . . . . . . .49–50 Paris Charter, Charter of Paris for a New Europe, Paris 1990, (available at http://www.osce.org/ documents/mcs/1990/ 11/4045_en.pdf) . . . . . . . . 102, 285 Convention concerning Safety in the use of Chemicals at Work, No C170, 25 June 1990 (available at http://www.ilo.org/ilolex/cgi-lex/ convde.pl?C170) . . . . . . 26, 44–46, 60, 65, 233, 254 Pt III . . . . . . . . . . . . . . . . . . . . . . . . . . . .46 Agreement Establishing the World Trade Organization, 1867 UNTS 154; 33 ILM 1144 (1994) . . . . . . . . . . . 52, 78, 87, 198, 236, 241–2 Art IX(1) . . . . . . . . . . . . . . . . . . . . . . . . 247 fn 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 247 Art XIV(1) . . . . . . . . . . . . . . . . . . . . . . . 247 General Agreement on Tariffs and Trade GATT (1994), 15 April 1994, 1867 UNTS 187; 33 ILM 1153 (1994) . . . . . . . . . . . . . . . . . . . . 221 Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994, 1869 UNTS 299; 33 ILM 1197 (1994) . . . . . . . . 46–47, 52–53, 242 Art 33 . . . . . . . . . . . . . . . . . . . . . . . . . . 241 General Agreement on Trade in Services, 15 April 1994, 1869 UNTS 183; 33 ILM 1167 (1994) . . . .27, 46, 52–53, 58, 234 Euro-Mediterranean Interim Association Agreement on trade and cooperation

Table of Legal Instruments and Other Documents between the European Community, of the one part, and the Palestine Liberation Organization (PLO) for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip, of the other part – Protocol 1 on the arrangements applying to imports into the Community of agricultural products originating in the West Bank and the Gaza Strip – Protocol 2 on the arrangements applying to imports into the West Bank and the Gaza Strip of agricultural products originating in the Community – Protocol 3 concerning the definition of the concept of ‘originating products’ and methods of administrative cooperation – Final Act – Joint Declarations – Declaration by the European Community [1997] OJ L187/3 . . . . . . . . . . . . 272 Agreement on partnership and cooperation establishing a partnership between the European Communities and their Member States, of one part, and the Russian Federation, of the other part [1997] OJ L327/3 . . . . . . . . . . . . 140, 232, 272, 297, 301 Partnership and co-operation agreement between the European Communities and their Member States, and Ukraine [1998] OJ L49/3 . . . . . . . . 140, 232, 272, 297, 301 Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part [1998] OJ L97/2 . . . 72 Interregional Framework Cooperation Agreement between the European Community and its Member States, of the one part, and the Southern Common Market and its Party States, of the other part [1999] OJ L112/66 . . . . . . . . . . . . . . . .236

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Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . .236 Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part [2000] OJ L70/2 . . . . 272 Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part [2000] OJ L147/3 . . . . . . . . . . . . . . . . . 272 Partnership Agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000 [2000] OJ L317/3 . . . . . . . . . . . . . . . . .284 Art 11. . . . . . . . . . . . . . . . . . . . . . . . . . .284 Annex IV, Art 10(2) . . . . . . . . . . . . . . . .284 Framework Agreement for Trade and Cooperation between the European Community and its Member States, on the one hand, and the Republic of Korea, on the other hand [2001] OJ L90/46 . . . . . . . . . . . . . . . . .236 Agreement on Cooperation and Customs Union between the European Economic Community and the Republic of San Marino [2002] OJ L84/43 . . . . . . . . . . . . . . . . .240 Euro-Mediterranean Agreement establishing an Association between the European Communities and their Member States, of the one part, and the Hashemite Kingdom of Jordan, of the other part [2002] OJ L129/3 . . . . . . . . . . . . . . . . . 272 Interim Agreement on trade and trade-related matters between the European Community, of the one part, and the Republic of Lebanon, of the other [2002] OJ L262/2 . . . . . . . . . . . . . . . . . 272 Agreement between the European Union and the North Atlantic Treaty

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Organisation on the Security of Information [2003] L80/36 . . . . 104 Council Agreement (2003/C 321/02) between the Member States of the European Union concerning the status of military and civilian staff seconded to the institutions of the European Union, of the headquarters and forces which may be made available to the European Union in the context of the preparation and execution of the tasks referred to in Article 17(2) of the Treaty on European Union, including exercises, and of the military and civilian staff of the Member States put at the disposal of the European Union to act in this context (EU SOFA) [2003] OJ C321/6 . . . . . 152 Euro-Mediterranean Agreement establishing an Association between the European Communities and their Member States, of the one part, and the Arab Republic of Egypt, of the other part [2004] L304/39 . . . . . . 72 Euro-Mediterranean Agreement establishing an Association between the European Community and its Member States, of the one part, and the People’s Democratic Republic of Algeria, of the other part [2005] OJ L265/2 . . . . . . . . . . . . . . . . . 272 Agreement between the Republic of Iceland and the European Union on security procedures for the exchange of classified information [2006] L184/35 . . . . . . . . . . . . . . . . . . . 139 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 Air Transport Agreement [between the United States of America, the European Community, and its Member States] [2007] OJ L134/4 . . . . . . . 47 Art 25(1) . . . . . . . . . . . . . . . . . . . . . . . . . 47 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 U N DOCUMENTS Security Council Resolutions UN Security Council Resolution 864 (1993) adopted by the Security Council at

its 3277th meeting, on 15 September 1993, S/RES/864 (1993) . . . . . .282 UN Security Council Resolution 1333 (2000) adopted by the Security Council at its 4251st meeting, on 19 December 2000, S/RES/1333 (2000) . . . . . 276 UN Security Council Resolution 1390 (2002) adopted by the Security Council at its 4452nd meeting, on 16 January 2002, S/RES/1390 (2002) . . . . .277 General Assembly Resolutions Status of the European Economic Community in the General Assembly, A/ RES/3208(XXIX) . . . . . . . . . . .248 International Law Commission’s Articles on State Responsibility, UN General Assembly Resolution A/56/83 . . . 244 Art 47 . . . . . . . . . . . . . . . . . . . . . . . . . .244 International Law Commission Reports International Law Commission, Report of the International Law Commission on the Work of the Second Part of the Seventeenth Session, Monaco, 3–28 January 1966, UN Doc. A/6309/ Rev.1, Yearbook of the International Law Commission, Vol. II . . . . . . . . 17 International Law Commission, First report on the effects of armed conflicts on treaties by Mr. Ian Brownlie, Special Rapporteur, Fifty-seventh session, Geneva, 2 May–3 June and 4 July–5August 2005, UN Doc. A/ CN.4/552. . . . . . . . . . . . . . . . . . 194 FAO D O C U M E N T S Food and Agricultural Organization Constitution (available at http:// www.fao.org/documents/show_cdr. asp?url_fi le=/DOCREP/003/ X8700E/x8700e00.htm) . . . . . .248 Art II(3) . . . . . . . . . . . . . . . . . . . . . . . . .248 (5) . . . . . . . . . . . . . . . . . . . . . . . . .248–9 Food and Agricultural Organization General Rules (available at http://www.fao. org/documents/show_cdr.asp?url_ fi le=/DOCREP/003/X8700E/ x8700e00.htm) . . . . . . . . . . . . . 249

Table of Legal Instruments and Other Documents ILO DOCUMENTS Constitution of the International Labour Organisation (available at http:// www.ilo.org/public/english/about/ iloconst.htm) . . . . . . . . . . . . . . . .60 Art 12(2) . . . . . . . . . . . . . . . . . . . . . . . .248 Art 19(8) . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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nadere regelen voor het sluiten van de gemengde verdragen, Belgian State Gazette 17 December 1996 . . . . . . . . . . . . .240 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . .240 Netherlands Constitution Art 94 . . . . . . . . . . . . . . . . . . . . . . . . . .202

N ATO D O C U M E N T S Washington Summit Communiqué Issued by the Heads of State and Government participating in the meeting of the North Atlantic Council in Washington, D.C. on 24th April 1999, NATO Press Release NAC-S(99)64 of 24 April 1999 (available at http://www.nato.int/docu/pr/ 1999/p99–064e.htm) . . . . . . . . 103 EU-NATO Declaration on ESDP, NATO Press Release (2002) 142 of 16 December 2002 (available at http://www.nato.int/docu/pr/ 2002/p02–142e.htm). . . . . . . . . 103 M E M BE R S TAT E D O C U M E N T S Belgium Samenwerkingsakkoord van 8 maart 1994 tussen de Federale Overheid, de Gemeenschappen en de Gewesten en het Verenigd College van de Gemeenschappelijke Gemeenschapscommissie over de

United Kingdom Standing Orders of the House of Commons – Public Business – 2005(2), Ordered by the House of Commons to be printed 10th October 2005, Published by the authority of the House of Commons, London, The Stationary Office . . . . . . . . . . . . . . . . . . . . . 168 HL Select Committee on the European Union 6th Report: The Future Role of the European Court of Justice (HL Paper (2003–2004) no 47) . . . . . . . . . . . . . . . . . . . . 196 para 36 . . . . . . . . . . . . . . . . . . . . . . . . . .202 para 38 . . . . . . . . . . . . . . . . . . . . . . . . . . 213 para 92, fn 27 . . . . . . . . . . . . . . . . . . . . . 196 para 94 . . . . . . . . . . . . . . . . . . . . . . . . . . 196 para 95 . . . . . . . . . . . . . . . . . . . . . . . . . . 197 paras 96–97 . . . . . . . . . . . . . . . . . . . . . . 196 para 97 . . . . . . . . . . . . . . . . . . . . . . . . . . 197 para 103 . . . . . . . . . . . . . . . . . . . . . . . . . 183 HC European Scrutiny Committee 25th Report (HC Paper (2006–2007) no 41). . . . . . . . . . 155

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Introduction The European Union is unique as a polity organized along federal lines but with fully fledged States as its component political entities. The tension between the self-consciousness of the Member States and their constitutional relationship within the Union is especially pronounced in the foreign policy field, where they remain determined to assert their status as full subjects of the international order. Legal reflections on EU foreign policy such as those contained in this book face the problem of dealing with two sui generis concepts: the EU, and foreign policy. The EU cannot be fitted easily within either constitutional or international law,¹ and foreign policy has frequently been claimed to escape any grasp of law.² On the internal level, it is widely held that the penetration of law into foreign policy should be kept to a minimum: the executive must have its hands free to react to international developments quickly and effectively, without interference from the legislature or the judiciary; the ‘survival of the nation’ itself may potentially be at stake.³ On the international level,⁴ a similar attitude has sometimes led to the ¹ See already K Lipstein, The Law of the European Economic Community (1974) 45, dubbing the Treaty establishing the European Economic Community a ‘mirabile quidam monstrum’. Cf P Eleftheriadis, ‘Cosmopolitan Law’ (2003) 9 Eur LJ 241 et seq, arguing that the theoretical disjunction between the two constitutional models for the EU (federal state or international organization) is flawed. See, none the less, P Hay, ‘Federal Jurisdiction of the Common Market Court’ (1963) 12 AJCL 39, who argued that describing the Community as being sui generis is an ‘unsatisfying shrug’ and E Denza The Intergovernmental Pillars of the European Union (2002) 1: ‘European lawyers are given to saying that the European Union is sui generis—which is true but not helpful.’ ² cf the US Fifth Circuit Court of Appeals in Occidental of Umm al Qaywayn, Inc. v A Certain Cargo of Petroleum, 577 F.2d 1196 (5th Cir. 1978), cert. denied sub nom. Occidental of Umm Qaywayn, Inc. v Cities Serv. Oil Co., 442 U.S. (1979), 1204–1205, holding that in ‘their external relations, sovereigns are bound by no law; they are like our ancestors before the recognition or imposition of the social contract’: see TM Franck, Political Questions/Judicial Answer: Does the Rule of Law Apply to Foreign Aff airs? (1992) 49. ³ M Smith ‘Implementation: Making the EU’s International Relations Work’ in C Hill and M Smith (eds), International Relations and the European Union (2005) 155. Cf L Henkin Foreign Aff airs and the US Constitution (2nd edn, 1996) vii and 2–9, noting that analyses of US foreign policy rarely if ever display any attention to ‘the controlling relevance of the Constitution’; TM Franck, Political Questions/Judicial Answers: Does the Rule of Law Apply to Foreign Aff airs? (1992) 3–4, who refers to ‘a constitutional theory, still asserted by many lawyers and judges, that foreign affairs are diff erent from all other matters of state in some crucial fashion . . . Carried to its logical extreme, this doctrine holds that the political authorities are suit-proof as long as they purport to act in pursuance of their “foreign-affairs” power.’; also O Gross and F Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (2006) 205. ⁴ In general on the role of international law: eg L Henkin, How Nations Behave: Law and Foreign Policy (2nd edn, 1979); P Allott, Eunomia: New Order For a New World (2001); M Koskenniemi ‘The Place of Law in Collective Security’ (1996) 17 Michigan J Intl L 455–490; M Byers (ed.), The Role of Law in International Politics: Essays in International Relations and International Law

2

Introduction

rejection of the legal character of international law,⁵ or the downplaying of its significance.⁶ The legal organization of foreign policy within the EU bears the marks of the sui generis character of both concepts, with the extra level of complexity that comes from bringing them together.⁷ This book addresses the question of how foreign policy fits within the constitutional structure of the EU, characterized by the division of external relations competences between the Union and the Member States (‘the vertical axis’), and between the sub-orders or ‘pillars’ of which the Union is composed, more particularly the division between the Community competences of the first pillar and the common foreign and security policy (CFSP) competences of the second pillar (‘the horizontal axis’). The chosen methodology involves closely analysing, in the field of foreign policy, certain key constitutional principles, concepts, and legal techniques that are fundamental to the legal organization of the Union.⁸ The book is divided into four parts: The first part examines the way in which the principles of conferral (Chapter 1) and primacy (Chapter 2 ) as well as the Community method (Chapter 3) operate within Community external relations, as compared to their operation with respect to internal Community policies (for instance, exclusivity as the typical expression of the primacy principle in the field of external relations). The second part draws a further contrast between these concepts, principles, and legal techniques as they apply in relation to the CFSP and their operation under Community external relations. Chapter 4 concerns the principles of (2000); P Allott, The Health of Nations: Society and Law beyond the State (2002); M Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (2002); M Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2nd edn, 2005); TJ Schoenbaum, International Relations. The Path Not Taken: Using International Law to Promote World Peace and Security (2006). ⁵ Famously J Austin, The Province of Jurisprudence Determined (edited by WE Rumble, 1995) 20 et passim, also classifying constitutional law as ‘positive morality merely’: ibid, 216 et passim. But see T Franck, Fairness in International Law and Institutions (1995) 6, arguing that international law has entered a ‘post-ontological era’, enabling international lawyers to ‘undertake critical assessment’ of their subject, instead of continuously having to defend its existence. Cf J Finnis, Natural Law and Natural Rights (1980) 277–278, who points out that too often one particular characteristic of ‘the central case of law’ is emphasized, and any system not displaying that characteristic (eg a system without sanctions) is then brand-marked as not really being law, thus banishing it to another discipline. ⁶ eg HLA Hart, The Concept of Law (2nd edn, 1994) 198, remarking that law in the international system has been confined to matters that do not ‘affect “vital” issues’. See already on the difficulty of distinguishing ‘political’ from ‘legal’ disputes in international tribunals: H Lauterpacht, The Function of Law in the International Community (1933) 183–201, who refers to a maxim of ‘de maximis non curat praetor’. ⁷ Also on the sui generis character of EU foreign policy: P Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law (2001) 1 et passim. ⁸ Compare T Tridimas, The General Principles of EU Law (2nd edn, 2006) 4–5, who distinguishes between the ‘systemic principles which underlie the constitutional structure of the Community and define the Community legal edifice’ (such as conferral, loyal cooperation, primacy, and consistency), and the principles deriving from the rule of law (such as the protection of human rights and legal certainty).

Introduction

3

conferral, primacy and exclusivity and the contrast between decision-making under Title V EU Treaty and the Community method. Chapter 5 contains an analysis of the role of democratic accountability in the Union’s foreign policy and of the possibilities for judicial control by the Court of Justice within the sphere of the CFSP. Chapter 6 addresses the question of how far it can be said that the second pillar already forms part of the ‘new legal order’ established by the EC Treaty, considers whether the Constitution contained and the Treaty of Lisbon contains, proposals that would helpfully move the CFSP in the direction of communitarization, and traces the origins of the dichotomy between EC external relations and the CFSP. The subject of the third part comprises constitutional concepts, principles, and legal techniques, which, in practice, have been found to have a more significant part to play in Union foreign policy than in its internal policies (in particular the principle of consistency) or which have developed specifically in the field of external relations (in particular the technique of mixity). Chapter 7 analyses two constitutional concepts of vital importance for the management of the vertical division of competences: the technique of mixity) and the vertical aspect of the principle of consistency. Chapter 8 examines the question of how the separation of ‘high politics’ from the other aspects of foreign policy, most notably the entire area of external economic policy, works legally, and asks whether it is tenable from a constitutional perspective. The fourth part offers a number of conclusions on the constitutional particularities of the foreign policy of the Union, as well as some reflections on the interaction between EU foreign policy and the identity of the Union, and on the role of law in this equation. Fundamentally, therefore, this book examines the extent to which foreign policy is legally sui generis within the sui generis constitutional order of the EU, and how the CFSP is in turn sui generis within the foreign policy structure of the Union. It is not suggested that the constitutional principles, concepts, and legal techniques that are here analysed are the only significant ones in the constitutional organization of the Union, just that they are particularly suited to illustrate the sui generis character of the legal arrangements that govern the conduct of EU foreign policy. However, the fluid border between internal and external policies⁹ and the limited scope of this book implies that many aspects of ‘foreign policy’ or policies ⁹ Case 22/70 Commission v Council [1971] ECR 263, paras 18–19. Cf eg TM Franck, Political Questions/Judicial Answers: Does the Rule of Law Apply to Foreign Aff airs? (1992) 9; P Eeckhout, ‘General Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 275–276; O Gross and F Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (2006) 205–214. Political discourse has also caught on with the fluidity of this border: see eg WJ Clinton, ‘First Inaugural Address: Wednesday, January 21st 1993’ in Inaugural Addresses of the Presidents of the United States (Washington, DC: US GPO: for sale by the Supt of Docs, US GPO, 1989), para 32: ‘There is no longer division between what is foreign and what is domestic—the world economy, the world environment, the world AIDS crisis, the world arms race—they affect

4

Introduction

possibly affecting the external world will not be touched upon. For example, the width and complexity of the external aspects of the third pillar¹⁰ is such that a detailed account would distract from the overall argument of this study, and has therefore been omitted. Enlargement policy is equally an important aspect of the relationship of the Union with a specific category of third states; and it is foreign policy to the extent that it seeks to extend the Pax Europea to the entire European continent and possibly beyond.¹¹ It is, however, atypical foreign policy in that it seeks to integrate what is non-EU into the Union, thereby turning the external into the domestic.¹² The institutional framework and dynamic of enlargement requires separate treatment¹³ and, therefore, plays no part in this study. Nor will an examination be attempted of the EU’s attitude towards international law and the international Community in general.¹⁴ By the completion of this study, it appeared difficult to affirm with certainty that the Treaty of Lisbon would enter into force, bearing in mind the experience with the Treaty establishing a Constitution for Europe (‘the Constitution’). This study, therefore, does not contain a systematic overview of all the changes that us all’; and G Brown, ‘Lord Mayor’s banquet speech’ (London, 2007, available at ): ‘The old distinction between “over there” and “over here” does not make sense of this interdependent world. For there is no longer an “over there” of terrorism, failed states, poverty, forced migration and environmental degradation and an “over here” that is insulated or immune.’ ¹⁰ For a short overview: E Denza, The Intergovernmental Pillars of the European Union (2002) 306–308; cf further W Rees, ‘The External Face of Internal Security’ in C Hill and M Smith (eds), International Relations and the European Union (2005) 205–224. ¹¹ L Tsoukalis, ‘Managing Interdependence: The EU in the World Economy’ in C Hill and M Smith (eds), International Relations and the European Union (2005) 240–242. ¹² Similarly: F Andreatta, ‘Theory and the European Union’s International Relations’, in C Hill and M Smith (eds), International Relations and the European Union (2005) 36. ¹³ See M Cremona (ed.), The Enlargement of the European Union (2003); C Hillion, EU Enlargement: A Legal Approach (2004); C Hillion, ‘The Evolving System of EU External Relations, as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 195–206. See also K Smith, ‘Enlargement and European Order’ in C Hill and M Smith (eds), International Relations and the European Union (2005) 270–291. ¹⁴ See eg P Allott, ‘Adherence To and Withdrawal From Mixed Agreements’ in D O’Keeffe and HG Schermers (eds), Mixed Agreements (1983) 97–121; ATS Leenen, Gemeenschapsrecht en volkenrecht: een studie naar de draagwijdte van de eigen rechtsorde van de Europese Gemeenschappen (1984); M Koskenniemi (ed.), International Law Aspects of the European Union (1998); I Cheyne, ‘Haegeman, Demirel and their progeny’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 20–41; I Cheyne, ‘International Instruments as a Source of Community Law’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 254–275; K Lenaerts and E De Smijter, ‘The European Union as an Actor under International Law’ (1999–2000) 19 YEL 95–138; J Vanhamme, Volkenrechtelijke beginselen in het Europees recht (2001); P Eeckhout External Relations of the European Union: Legal and Constitutional Foundations (2004) 274–344; D Verwey, The European Community, the European Union and the International Law of Treaties (2004); M Cremona ‘Community Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 348–360; P Eeckhout ‘General Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 303–313; P Koutrakos, EU International Relations Law (2006) 217–249.

Introduction

5

the Treaty of Lisbon would introduce in the constitutional structure of the EU as a whole, or with regard to foreign policy in particular. The study highlights some of the most important changes that the Treaty of Lisbon would introduce, in particular where proposed changes illuminate the existing legal situation either by underlining deficiencies or suggesting possible improvements.¹⁵ In referring to the Treaty on the Functioning of the European Union and the new Treaty on European Union as amended by the Treaty of Lisbon, I have used the new numbering as put forward by the Tables of Equivalences referred to in Article 5 of the Treaty of Lisbon, to be found in its Annex. To distinguish references to the current Treaty on European Union from those to its post-Lisbon version, the latter ones are preceded by ‘New’. Finally, it goes without saying that all views expressed in this study are my own and cannot be ascribed to the institution to which I belong.¹⁶

¹⁵ On the Constitution in general: JC Piris, The Constitution for Europe: A Legal Analysis (2006). For an analysis of the Constitution’s innovations with regard to the CFSP/CSDP: M Trybus, European Union Law and Defence Integration (2005) 293–394. ¹⁶ While Chapter 8 discusses two cases pending before the Court of Justice at the time the manuscript for this book was completed (Case C-402/05 P Kadi v Council and Commission [2006] OJ C36/19 and Case C-415/05 P Al Barakaat International Foundation v Council and Commission [2006] OJ C48/11), my remarks are confined to those already contained in my doctoral dissertation and do not, for example, include a detailed commentary on the Opinions of Advocate General Poiares Maduro.

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PA RT ON E EC E X T E R NA L R E L AT IONS

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1 Conferral 1.1 Introduction The principle of conferral¹ as enshrined in Article 5 EC is one of the cornerstones of the EC legal order:² ‘The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein.’ The Community is thus incapable of extending its own competences, and it does not have general law-making capacity: a legal basis in the Treaty³ is needed for every single action,⁴ determinative of both the vertical and horizontal division of competences.⁵ The choice of this legal basis cannot be within the discretion of the Community institutions, and may not depend simply on an institution’s conviction as to the objective pursued but must be based on objective factors that are amenable to judicial review.⁶ ¹ As used in New Art 5(1) and (2) EU (cf Art I-11(1) and (2) TC). Various synonyms have been used in the Treaties, by the Court or in the literature, eg ‘principle of conferral of powers’ (Art 7 TFEU, cf Art III-115 TC), the ‘principle of conferred powers’ (Opinion 2/94 Accession by the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECR I-1759, para 24), or ‘the attribution principle’ (AA Dashwood, ‘The Limits of European Community Powers’ (1996) 21 ELR 116). ² And of the law of international organizations: CF Amerasinghe, Principles of the Institutional Law of International Organizations (2nd edn, 2005) 161 et passim; D Sarooshi, International Organizations and their Exercise of Sovereign Powers (2005). ³ See, however, Art 308 EC: ‘If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community, and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures’ (emphasis added). ⁴ cf AA Dashwood, ‘The Limits of European Community Powers’ (1996) 21 ELR 115–116; A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (2002) 202– 205, who interprets the principle as a guarantee that EU decisions are taken democratically. ⁵ K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2nd edn, 2005) 86–89, paras 5-009–5-011. ⁶ eg Case 45/86 Commission v Council [1987] ECR 1493, para 11; Case C-300/89 Commission v Council [1991] ECR I-2867, para 10; Case C-440/05 Commission v Council [2006] OJ C22/10, para 61. Advocate General Poiares Maduro has suggested that the Court attaches so much importance to the choice of legal basis because it affects the institutional balance: it determines the applicable decision-making procedure and may ultimately have ramifications for the determination of the content of an act: Opinion in Case C-133/06 Parliament v Council [2006] OJ C108/12, point 32.

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As the Court of Justice restated in Opinion 2/94 Accession by the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms, this principle applies as much to external action as to internal action.⁷ Unlike most nation States, when considering a response to an international situation, the Community must always give precedence to considerations of competence over considerations of effectiveness in its international action.⁸ Indeed, the Court held in Opinion 2/00 [Cartagena Protocol]⁹ that ‘[t]he choice of the appropriate legal basis has constitutional significance. Since the Community has conferred powers only, it must tie the [international agreement in question] to a Treaty provision which empowers it to approve such a measure. To proceed on an incorrect legal basis is therefore liable to invalidate the act concluding the agreement and so vitiate the Community’s consent to be bound by the agreement it has signed.’¹⁰ Moreover, while the Court has in the past held that the exact nature of the division of competences between the Member States and the Community is ‘a domestic question’,¹¹ it has recently ruled that through the choice of the legal basis of the decision approving an international agreement, the Community gives an indication to the other contracting parties with regard to the extent of Community competence and with regard to the division of competences between the Community and its Member States.¹² It is, therefore, not surprising that competence questions continue to be at the heart of EU external relations law, and that the intensity and complexity of these questions is still increasing.¹³ This chapter focuses on the specificity of the operation of the principle of conferral within EC external relations, as compared with internal Community competences. The most significant particularity is the great importance of the doctrine of implied competences. ⁷ [1996] ECR I-1759, para 24. ⁸ S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 100; eg regarding development cooperation: K De Feyter, World Development Law. Sharing Responsibility for Development (2001) 110–111; on the EU’s desire to ‘systematise or pigeon-hole’ its international relations and the consequences thereof: C Hill and M Smith, ‘International Relations and the European Union: Themes and Issues’ in C Hill and M Smith (eds), International Relations and the European Union (2005) 12. ⁹ [2001] ECR I-9713. ¹⁰ Para 5 of Opinion 2/00. ¹¹ Ruling 1/78 Draft Convention of the International Atomic Energy Agency on the Physical Protection of Nuclear Materials, Facilities and Transports [1978] ECR 2151, para 35. ‘Ruling’ is the term used in Art 103 EURATOM, which provides for a procedure somewhat similar to the one in Art 300(6) EC: see ch 3.5. ¹² Case C-94/03 Commission v Council [2006] ECR I-1, para 55; further: M Cremona, ‘Community Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 329–330. ¹³ P Eeckhout ‘General Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 275–276.

Explicit Attribution

11

In contrast to what is the case with regard to external relations, the scope of implied competences in internal matters is very limited. The need for implied internal competences can arise in situations in which a Community institution has been granted the competence to perform a certain task for which it needs extra competences not specifically mentioned in the EC Treaty. For example, the Commission was considered competent to adopt binding decisions in the field of social policy,¹⁴ even though this competence was not mentioned in the relevant legal basis in the EC Treaty.¹⁵ These internal competences are implied from an EC Treaty provision specifically requiring action by the Community, and are therefore fully in accordance with the principle of conferral.¹⁶ The chapter is divided into three sections, analysing respectively external competences explicitly granted to the Community in the EC Treaty, external competences not spelled out literally in the EC Treaty, but inferred from its text, and external competences based on general legal bases.

1.2 Explicit Attribution 1.2.1 The EC Treaty The EC Treaty does not contain a general legal basis for EC external relations. Instead, it takes a sectoral approach and contains a number of legal bases for external action in specific fields:¹⁷ • • • • • • • • • • • • • •

Article 26 EC: Common Customs Tariff; Article 34(2) EC: Agriculture; Articles 57–60 EC: Capital and Payments; Article 71(1)(a) EC: Transport; Article 111 EC: Monetary Policy; Articles 131–134 EC: Common Commercial Policy; Article 149(3) EC: Education; Article 150(3) EC: Vocational Training; Article 151(3) EC: Culture; Article 152(3) EC: Public Health; Article 155(3) EC: Trans-European Networks; Articles 164(b) and 170 EC: Research and Technological Development; Articles 174(4) EC: Environment; Articles 177–181 EC: Development Cooperation;

¹⁴ Joined Cases 281/85, 283–285/85 and 287/85 Germany and others v Commission [1987] ECR 3203. ¹⁵ Ex-Art 118 EC, now amended Art 137 EC. ¹⁶ cf AA Dashwood, ‘The Limits of European Community Powers’ (1996) 21 ELR 124. ¹⁷ cf K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2nd edn, 2005) 827, para 20-001.

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Conferral • Articles 181a EC: Economic, Financial, and Technical Cooperation with Third Countries; • Articles 302–304 EC: Relations with international organizations; • Article 310 EC: Association Agreements.

The EC Treaty provisions regulating external relations thus not only seem to be spread over the entire Treaty, but, on a closer look, also turn out to be quite incomplete. There were even fewer express external relations legal bases in the original Treaty establishing the European Economic Community (EEC Treaty). For trade with third countries, it was provided that: ‘[t]he Community shall be based upon a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries’.¹⁸ It was clear from the outset that this provision would have to be complemented by other provisions on external relations if the customs union, or even the common market, was ever to work.¹⁹ These other provisions can be found in the chapter on the common commercial policy (CCP).²⁰ Besides this, there were a number of Articles referring to external relations in the final part of the Treaty, containing the ‘General Provisions’: • Article 300 EC (procedure for conclusion of agreements between the Community and one or more States or international organizations); • Article 302 EC (maintenance of ‘appropriate relations’ with the UN, its specialized agencies and other international organizations); • Article 303 EC (cooperation with the Council of Europe); • Article 304 EC (‘close cooperation’ with the OECD); • Article 310 EC (association agreements between the Community and States or international organizations). Apart from Article 310 EC, none of the Articles there listed granted the Community any substantive foreign policy competence: no general areas of policy competence were defined.²¹ It is important to note, especially with regard to the discussion of implied external competences, that all the Articles in the EEC Treaty referring to external relations, were ones specifically granting the Community a competence that could only be exercised on the external plane, as ¹⁸ Current Art 23(1) EC (emphases added). ¹⁹ P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 10. ²⁰ Art 131–134 EC; cf S Meunier and K Nicolaïdis, ‘The European Union as a Trade Power’ in C Hill and M Smith (eds), International Relations and the European Union (2005) 249: ‘In the field of trade, the Treaty of Rome was a revolutionary document’. ²¹ P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 58.

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opposed to external complements of internal competences.²² This implies that none of the core legal bases in EC policy areas fundamental for the full articulation of the common market²³ were expressly equipped by the EEC Treaty with any possibility for external action. Attempts to address this lack of explicit legal bases for external action were made in two ways: by Treaty amendment; and through creative interpretation by the Court of Justice of the existing Treaty provisions, such as to make a viable external policy in a number of areas possible. The latter results in what is mostly referred to as ‘implied external competences’, examined in the next section. Explicit legal bases for external competences were, however, added to the EC Treaty in subsequent Treaty amendments. The amendments to the EEC Treaty by the Single European Act (SEA),²⁴ Treaty of Maastricht,²⁵ Treaty of Amsterdam,²⁶ and Treaty of Nice²⁷ attempted to provide more clarity in external relations matters. This was done (though not invariably)²⁸ by explicitly granting the Community external relations competence in policy areas for which new legal bases for internal action were added to the Treaty.²⁹ The Single European Act added Articles 170 and 174(4) EC. The Treaty of Maastricht added Articles 111 and 181 EC. It also added a number of legal bases containing the obligation for the Community and the Member States to ‘foster cooperation with third countries and the competent international organisations’³⁰ and one legal basis with permission for the Community to ‘decide to cooperate with third countries’.³¹ What the Treaty of Maastricht did not mention, however, was whether it was possible for the Community to enter into international agreements in pursuance of its competence granted in these latter two types of legal bases.³²

²² cf AA Dashwood, ‘The Attribution of External Relations Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 121, who calls the former ‘dedicated external relations provisions’ and the latter ‘extension provisions’. ²³ Such as: Art 37 EC (CAP, including fisheries), Art 71 EC (transport), Art 83 EC (competition), Art 93 EC (harmonization of indirect taxation), Art 94 EC (approximation of laws, regulations, or administrative provisions of the Member States directly affecting the establishment or functioning of the common market). ²⁴ OJ 1987 L169. ²⁵ OJ 1992 C191/1. ²⁶ OJ 1997 C340/1. ²⁷ OJ 2001 C80/1. ²⁸ eg the absence of any explicit legal bases for external action with regard to asylum and immigration. ²⁹ cf AA Dashwood, ‘The Attribution of External Relations Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 122. ³⁰ Arts 149(3), 150(3), 151(3), and 152(3) EC. ³¹ Art 155(3) EC. ³² cf AA Dashwood, ‘The Attribution of External Relations Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 123.

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The Treaty of Amsterdam did not add a new Article, but did potentially enlarge the Community’s external competences. It added a fifth paragraph to Article 133, which enabled the Council by unanimity, on a proposal from the Commission, and after consultation of the European Parliament, to extend the Community’s competence to conclude international agreements in accordance with Article 133 EC to the areas of services and intellectual property. Article 133(5) EC was substantially redrafted at Nice. Trade in services and the commercial aspects of intellectual property now fall within the scope of Article 133, paragraphs 1–4 EC. A new paragraph (7) was also added to Article 133 EC, which provides for the same mechanism as the Amsterdam version of Article 133(5) EC, but now with regard to the international negotiations and agreements in the field of intellectual property that do not concern the commercial aspects of intellectual property.³³ The Treaty of Nice also added Article 181a EC on economic, financial, and technical cooperation with third countries. Of these, only Articles 133(5), 181, and 181a EC specifically grant the Community a competence primarily designed to be exercised externally,³⁴ while all the other amendments added the external complements to predominantly internal competences.³⁵ Undoubtedly, the small number of the former type of external competences could never fully complement the wide array of activities of the Community. The Community legislator has therefore often relied on Article 308 EC to take appropriate measures in case action should prove necessary to attain one of the objectives of the Community in the course of the operation of the common market and the EC Treaty does not provide the necessary specific legal basis. The legality of this recourse to Article 308 EC to remedy the lack of legal bases for external action is, however, often quite dubious.³⁶ ³³ Further: P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 48–53. ³⁴ However, closer scrutiny of the wording of Art 133(5) EC as amended at Nice reveals that it is not entirely clear that this provision grants a competence that can only be exercised externally. It also contains a procedural aspect, which provides that the Council has to act by unanimity with regard to agreements in the fields of trade in services and the commercial aspects of intellectual property, when it relates to a field in which the Community has not yet exercised the powers conferred upon it by this Treaty by adopting internal rules (Art 133(5), subpara 2 EC). Cf P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 50–51, who rightly remarks that this would logically seem to presuppose that Art 133(5) EC can also be applied in situations where prior internal Community legislation exists, quite possibly with regard to services and intellectual property generally, for which an internal power of harmonization seems to be wellestablished. The question remains whether Art 133(5) EC thus actually enables the Community to adopt internal measures with regard to ‘trade in services’ and ‘the commercial aspects of intellectual property’. ³⁵ cf AA Dashwood, ‘The Attribution of External Relations Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 123. ³⁶ See ch 1.4, and see the discussion of Case T-306/01 Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-3533 and Case T-315/01 Yassin Abdullah Kadi v Council and Commission [2005] ECR II-3649 in ch 8.3.1. More generally on Art 308 EC: AA Dashwood, ‘The Limits of European Community Powers’ (1996) 21 ELR 113–128.

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On the other hand, it was equally the case that not all legal bases in the EC Treaty for predominantly internal action that could potentially benefit from external action were explicitly granted a complementary competence in external matters.³⁷ A strict interpretation of the EEC Treaty or the EC Treaty would not have sufficed for the attainment of the ambitious market integration goals that the Community had set itself, and the Court of Justice had to take up the constitutional gauntlet. After briefly examining the explicit conferral of external relations competences under the Treaty of Lisbon in the next subsection, section 1.3 of this chapter will analyse the way in which the Court inferred the necessary external competences from the wording of the Treaty provisions regulating internal Community action, and thereby partly remedied the lack of legal bases for external action.

1.2.2 The Treaty of Lisbon While development cooperation³⁸ and economic, technical, and financial cooperation with third countries³⁹ already have a legal basis in the EC Treaty, the Treaty of Lisbon would introduce a new legal basis for humanitarian aid in the Treaty on the Functioning of the European Union (TFEU).⁴⁰ This is to be welcomed, as the present Article 179 EC, which can be found in Title XX on development cooperation, is of dubious legality as a legal basis for humanitarian aid.⁴¹ Operations in the field of humanitarian aid would be intended to provide what the Treaty on the Functioning of the EU describes as ‘ad hoc assistance and relief and protection for people in third countries who are victims of natural or man-made disasters, in order to meet the humanitarian needs resulting from these different situations’. The Member States would continue to conduct their own humanitarian aid operations, and Article 214(1) TFEU would provide that the Union’s measures and those of the Member States should complement and reinforce each other.⁴² The Union’s humanitarian aid operations would be conducted within the framework of the principles and objectives of the external action of the Union and in compliance with the principles of international law and with the principles of impartiality, neutrality, and non-discrimination.⁴³ The latter phrase would allow the EU to keep its practice of continuing to provide aid ³⁷ cf AA Dashwood, ‘The Attribution of External Relations Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 123–124. ³⁸ Arts 177–181 EC (Arts 208 to 211 TFEU, and cf Arts III-316 and III-318 TC). ³⁹ Art 181a EC (Arts 212 and 213 TFEU, and cf Arts III-319 and III-320 TC). ⁴⁰ Art 214 TFEU (cf Art III-321 TC). ⁴¹ It could be argued that development cooperation is inherently a form of long-term engagement, while humanitarian aid is different in that it is intended to provide immediate relief in a humanitarian crisis that is not expected to be long term. ⁴² cf Art III-321(1) TC. ⁴³ Art 214(2) TFEU (cf Art III-321(1) and (2) TC).

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to peoples of countries whose governments have been subjected to sanctions or negative conditionality.⁴⁴ The Treaty of Lisbon would insert a new Article 8 in the EU Treaty, pursuant to which the Union would have to develop ‘a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterized by close and peaceful relations based on cooperation’.⁴⁵ The Treaty of Lisbon would also grant the Union the competence to conclude specific agreements with the countries concerned and would provide prescriptions for these agreements: they could contain reciprocal rights and obligations and they could provide for the possibility of undertaking activities jointly. Their implementation would be subjected to periodic consultation.⁴⁶ This provision appears to ‘constitutionalize’ the ENP as a more assertive promotion of the Union towards its ‘near abroad’.⁴⁷ More dramatically, by providing for a category of States that are explicitly not in the ‘waiting room’ for membership, this provision could prefigure the end of the enlargement process and policy, and contrasts with the call of the founding fathers made to all European peoples that share the ideals of the Community to join in their efforts.⁴⁸

1.3 Implied External Relations Competences 1.3.1 Introduction External relations is the only area of Community competence in which implied competences are relied upon to such an extent that they have become a fundamental part of its constitutional framework.⁴⁹ However, the doctrine of implied competences is not unique to the Community/Union; it is a well-known principle ⁴⁴ M Cremona, ‘The Draft Constitutional Treaty: External Relations and External Action’ (2003) 40 CML Rev 1364. The term ‘positive conditionality’ refers to the grant of aid as a reward for respecting certain conditions, mostly regarding human rights and democracy, while ‘negative conditionality’ refers to the withdrawal of aid in reaction to a violation of these conditions; see K Smith, ‘The EU, human rights and relations with third countries: “foreign policy” with an ethical dimension’ in K Smith and M Light (eds), Ethics and Foreign Policy (2001) 188–190. ⁴⁵ The Constitution would have created a Title VIII of Part I entitled ‘The Union and Its Neighbours’, only comprising Art I-57 TC, identical to New Art 8 EU. ⁴⁶ New Art 8(2) EU. ⁴⁷ C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 239. ⁴⁸ See the Preamble to the EEC Treaty: ‘calling upon the other peoples of Europe who share their ideal to join in their efforts’. And see the Schuman Declaration, 9 May 1950, which referred to ‘une organisation ouverte à la participation des autres pays d’Europe’, as noted by C Hillion ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 239. ⁴⁹ See further in general: K Lenaerts, Le juge et la constitution aux États-unis d’ Amérique et dans l’ordre juridique européen (1988) 466–480.

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of the law of international institutions.⁵⁰ The principle can be inferred from the broader principle of effectiveness: an international legal instrument must be assumed to be intended to achieve an objective, and an interpretation that would make a text ineffective in achieving the objective should be considered as prima facie suspect: ut res magis valeat quam pereat.⁵¹ The principle has come up before the Permanent Court of International Justice and the International Court of Justice a number of times,⁵² and both have emphasized that implied competences must bear a clear relationship with the functioning of the organization, the performance of its duties, or the achievement of its purposes. In accordance with the principle of conferral, the principle of effectiveness and its derivative, the principle of implied competences, could never be used to grant the organization competences to suit its whims. Within the Community, implied competences have been relied on mostly with regard to external relations. The Court has, however, recognized the importance of the principle of effectiveness in other areas of Community law, referring to ‘a rule of interpretation generally accepted in both international and national law according to which the rules laid down by an international treaty or a law presuppose the rules without which that treaty or law would have no meaning or could not be reasonably and usefully applied’.⁵³ ⁵⁰ See Reparation for Injuries suff ered in the Service of the United Nations [1949] ICJ Reports 174, 182; note that a majority of the Court applied the doctrine expansively: JE Alvarez, International Organizations as Law-makers (2005) 93 and, in general, 92–95; cf D Sarooshi, International Organizations and Their Exercise of Sovereign Powers (2005) 19, fn 3. It is also a principle of constitutional law: see eg Chief Justice Marshall of the United States Supreme Court in M’Culloch v The State of Maryland et al., 17 U.S. 316, 407 (1819): ‘A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves’. ⁵¹ CF Amerasinghe, Principles of the Institutional Law of International Organizations (2nd edn, 2005) 46; see also International Law Commission, Report of the International Law Commission on the Work of the Second Part of the Seventeenth Session, Monaco, 3–28 January 1966, UN Doc. A/6309/Rev.1, Yearbook of the International Law Commission, Vol. II, 219: ‘When a treaty is open to two interpretations one of which does and the other does not enable the treaty to have appropriate effects, good faith and the objects and purposes of the treaty demand that the former interpretation should be adopted’. ⁵² See eg Competence of the International Labour Organization to Regulate, Incidentally, the Personal Work of the Employer [1926] PCIJ Series B.– No 13, 18; Jurisdiction of the European Commission of the Danube Between Galatz and Braila [1927] PCIJ Series B.– No 14, 64; Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) [1962] ICJ Reports, 151, 159, and 167–168. ⁵³ Case 8/55 Fédération Charbonnière de Belgique v High Authority of the European Coal and Steel Community [1954–1956] ECR 292, 299. See also, to that effect, Joined Cases 281/85, 283–285/85 and 287/85 Germany and others v Commission [1987] ECR 3203, paras 27–29; Case C-176/03 Commission v Council [2005] ECR I-7879, para 48; Case C-440/05 Commission v Council [2006] OJ C22/10, para 66, and the Opinion of Mazák AG in the latter case, points 87–90. See further P Craig, EU Administrative Law (2006) 406–407.

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While the Treaty establishing the European Atomic Energy Community (EURATOM Treaty) contains a provision⁵⁴ establishing a general parallelism between internal and external competences of the organization, no such provision was inserted in the EEC Treaty. Unsurprisingly, the question whether such parallelism did none the less exist under the EEC Treaty proved to be a fruitful source of debate, both in legal writing and in the case-law of the Court of Justice. The following provides an overview and analysis of the principles and concepts governing the existence of implied external Community competences, as most clearly set out by the Court in Opinion 2/94,⁵⁵ and as confirmed in the Open Skies cases⁵⁶ and 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.⁵⁷ The principles governing their nature (exclusive or not) will be analysed in Chapter 2. The Court’s clarification of the law on implied external competences in Opinion 2/94⁵⁸ was structured around two major dichotomies: implied versus express conferral of competences on the one hand, and external versus internal competences on the other hand. Implied external competences only arise by implication from express internal competences. As will be noted below, this differs somewhat from the Court’s first statements on implied external competences in the ERTA case.⁵⁹

1.3.2 Capacity v competence As mentioned above, the principle of conferral as enshrined in Article 5 EC applies to the Community’s internal and external competences.⁶⁰ Should the principle of conferral not apply to external relations, the Community would be able to enlarge its own competences by concluding international agreements, given that the latter can become part of Community law without any further formality, and may have direct effect.⁶¹ For example, the Court held in Opinion 1/03 that ⁵⁴ Art 101. ⁵⁵ [1996] ECR I-1759. ⁵⁶ Case C-466/98 Commission v United Kingdom [2002] ECR I-9427; Case C-467/98 Commission v Denmark [2002] ECR I-9519; Case C-468/98 Commission v Sweden [2002] ECR I-9575; Case C-469/98 Commission v Finland [2002] ECR I-9627; Case C-471/98 Commission v Belgium [2002] ECR I-9681; Case C-472/98 Commission v Luxembourg [2002] ECR I-9741; Case C-475/98 Commission v Austria [2002] ECR I-9797; Case C-476/98 Commission v Germany [2002] ECR I-9855. The Court has recently confirmed its approach in the 2002 Open Skies judgments in what is presumably the final episode of the saga: Case C-523/04 Commission v Netherlands [2007] ECR I-3267. ⁵⁷ [2006] ECR I-01145, para 114. ⁵⁸ [1996] ECR I-1759. ⁵⁹ Case 22/70 Commission v Council [1971] ECR 263. ⁶⁰ Opinion 2/94 Accession by the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECR I-1759, paras 23–24. ⁶¹ eg Case C-372/06 Asda Stores [2006] OJ C294/24, para 82: ‘According to well-established case-law, a provision in an agreement concluded by the Communities with a non-member country

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if an international agreement contains provisions that presume a harmonization of legislative or regulatory measures of the Member States in an area for which the EC Treaty excludes such harmonization, the Community does not have the necessary competence to conclude that agreement. ‘Those limits of the external competence of the Community concern the very existence of that competence and not whether or not it is exclusive.’⁶² Put differently, concluding an international agreement requiring harmonization in areas where the EC Treaty excludes such harmonization would be a clear infringement of the principle of conferral. A discrepancy might have prima facie seemed to exist between the implied competences doctrine as first laid down in the ERTA case and the principle of conferral.⁶³ The Court seemed to interpret Article 281 EC⁶⁴ as effectively having the same meaning as Articles 6(2) ECSC and 101(1) EURATOM; that the Community has general capacity to enter into international agreements. Is this equivalent to the Community having a general competence to act internationally within the limits of its objectives? A closer look at the judgment reveals that this was not what the Court intended. In fact, the Court fully agrees with the Council’s contention that ‘the Community only has such powers as have been conferred on it’.⁶⁵ Capacity, thus, is not to be equated with competence. The general capacity derived from Article 281 EC does not constitute an independent legal basis to enter into international agreements. It does, however, indicate that competence-conferring norms throughout the entire EC Treaty may potentially be used as legal bases for international action.⁶⁶ In an interpretative masterstroke, the Court thus both confirmed the preponderance of the principle of conferral and gave the Community enough must be regarded as being directly applicable when, regard being had to its wording and to the purpose and nature of the agreement, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure. It follows that, where an agreement establishes cooperation between the parties, certain of its provisions may, under the abovementioned conditions and having regard to the nature and purpose of the agreement, directly govern the legal position of individuals.’ ⁶² 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, para 132. ⁶³ At the time of the ERTA case, the principle of conferral was not enshrined in the Treaty in the same way as it is now. Art 5 EC was inserted by the Treaty of Maastricht. Before, there was only a reference in what is now Art 7(1) EC, which provides that ‘[e]ach institution shall act within the limits of the powers conferred upon it by this Treaty’. It is not even clear that this provision refers in any way to the relationship between the Community and the Member States. See P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 63. ⁶⁴ ‘The Community shall have legal personality.’ While the Court took this Article as a starting point for its reasoning in the ERTA case, it had no role in the Court’s restatement of the law of implied external competences in Opinion 2/94 Accession by the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECR I-1759. ⁶⁵ Case 22/70 Commission v Council [1971] ECR 263, para 9. ⁶⁶ cf AA Dashwood and J Heliskoski, ‘The Classic Authorities Revisited’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 6–7.

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space to develop the external aspects of its policies. The Court affirmed that the Community only has those competences that have been conferred on it, but held that this does not mean that the Community can only act on the external front when it has explicitly been granted the competence to do so, because there may also be implied competence. The Court thus married the principle of conferral to the existence of implied external competences and thereby laid a cornerstone of the constitutional framework of Community external relations.

1.3.3 Existence or nature It seems logical to separate the question of existence of implied external competences, which arises because the Community legal order is based on the principle of conferral, from the nature of such competence, ie whether it is exclusive or not.⁶⁷ The Court has, however, often treated both questions as essentially identical. Th is was so in the ERTA case,⁶⁸ the very fi rst case on implied external competences, and was still so 30 years on in the Open Skies cases.⁶⁹ Nonetheless, the Court has attempted to separate the question of existence of implied external competences from that of their nature. It did so, for example, in Opinion 1/75 [Draft Understanding on a Local Cost Standard drawn up under the auspices of the OECD],⁷⁰ the Kramer judgment,⁷¹ Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work,⁷² and recently in Opinion 1/03⁷³ and the Mox Plant judgment.⁷⁴ This approach will be followed in this book, while acknowledging that the two questions are in practice often closely related. Indeed, this close relationship is probably an important factor in the continuing opacity of the principles governing Community external relations.⁷⁵ ⁶⁷ cf AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) v, who refer to the ‘existence question’ and the ‘exclusivity question’, respectively. ⁶⁸ Case 22/70 Commission v Council [1971] ECR 263; see also Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267 and Opinion 2/92 Competence of the Community or one of its institutions to participate in the Third Revised Decision of the OECD on national treatment [1995] ECR I-521. ⁶⁹ Cited in fn 56; see R Holdgaard, ‘The European Community’s Implied External Competence after the Open Skies Cases’ (2003) 8 Eur Foreign Affairs Rev 388–393; see also P Koutrakos, EU International Relations Law (2006) 123. ⁷⁰ [1975] ECR 1355. ⁷¹ Joined Cases 3, 4 and 6/76, Cornelis Kramer and others [1976] ECR 1279. ⁷² [1993] ECR I-1061. ⁷³ eg 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, para 132. ⁷⁴ Case C-459/03 Commission v Ireland [2006] ECR I-4635, paras 93–95 and 106–108. ⁷⁵ R Holdgaard, ‘The European Community’s Implied External Competence after the Open Skies Cases’ (2003) 8 Eur Foreign Affairs Rev 370.

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1.3.4 Specific competences The Court affirmed in Opinion 2/94 that the Community acts ordinarily on the basis of specific competences that can either be expressly conferred by EC Treaty provisions or implied from them and that this equally applies to the Community’s external relations.⁷⁶ In other words, while a specific legal basis for Community action is needed to comply with the principle of conferral, competence to act externally need not be explicitly mentioned by the legal basis, but may be implied from it.⁷⁷ The Court of Justice took care to make this clear from the start. In the ERTA case, the Court established that the ‘authority’ of the Community to enter into agreements under international law could only be determined by looking at both the entire ‘scheme of the Treaty’⁷⁸ and to its substantive provisions.⁷⁹ This authority to enter into international agreements can arise not only from Treaty provisions explicitly granting such power to the Community, but equally from other Treaty provisions and even from measures adopted by the Community institutions, within the framework of those provisions.⁸⁰ The qualification ‘ordinarily’ added by the Court to its affirmation that the Community acts on the basis of specific competences may thus refer both to Article 308 EC, as well as to ERTA-type competences, which are found in the scheme of the Treaty, rather than in a specific provision. Whether the competence be explicit or implied, determining its exact legal basis is of utmost importance because of the consequences for the horizontal and vertical division of competences.⁸¹

1.3.5 ERTA-competence The Court first recognized implied external competences in the ERTA case:⁸² ‘In particular, each time the Community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, ⁷⁶ Opinion 2/94 Accession by the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECR I-1759, paras 25–26. ⁷⁷ cf Opinion 1/76 Draft Agreement establishing a European laying-up fund for inland waterway vessels [1977] ECR 741, para 3. ⁷⁸ cf Case 26/62 NV Algemene Transport- en Expeditie Onderneming Van Gend & Loos v Nederlandse Administratie der Belastingen [1963] ECR 1, 12–13, also referring to the ‘general scheme of the Treaty’; further: P Allott, ‘Adherence To and Withdrawal From Mixed Agreements’ in D O’Keeffe and HG Schermers (eds), Mixed Agreements (1983) 98 and 112. On the Community’s choice of legal basis for an international agreement: S Peers, ‘EC Framework of International Relations: Co-operation, Partnership and Association’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 160–176, who argues that it is based more on political than on legal considerations. ⁷⁹ Case 22/70 Commission v Council [1971] ECR 263, para 15. ⁸⁰ Ibid, para 16. ⁸¹ cf AA Dashwood, ‘The Attribution of External Relations Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 117. ⁸² Case 22/70 Commission v Council [1971] ECR 263, para 17.

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whatever form these may take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules.’ This implies that, when such common rules on the Community level exist, the Community alone is capable of assuming and carrying out any obligations arising out of international agreements with third countries ‘affecting the whole sphere of application of the Community legal system’. ‘With regard to the implementation of the provisions of the Treaty the system of internal Community measures may not therefore be separated from that of external relations.’⁸³ The Court also referred to Article 10 EC,⁸⁴ which lays down the principle of loyalty, and concluded that it would be impossible for the Member States operating outside the institutional framework of the Community to assume responsibilities which might affect or alter the scope of Community rules that have been promulgated for the attainment of Treaty objectives.⁸⁵ This implies that the ERTA-principle follows the logic of the principle of primacy but, as will be argued, the effect is rather more rigorous:⁸⁶ the Member States are not allowed to act internationally in a way that would affect existing Community law, because the situation cannot be remedied by merely disapplying the infringing national rule. The Member States’ competence is thus excluded, which necessitates the existence of Community competences to compensate for the lack of ability to act on the Member States’ part.⁸⁷ As indicated by the fact that the Court introduced the ERTA-principle with the words ‘in particular’,⁸⁸ the existence of implied external competences when prior internal legislation has already been promulgated before an international agreement is concluded on the subject-matter is an important example, but not the only possibility.⁸⁹ ⁸³ Ibid, paras 18–19. ⁸⁴ And to Art 3(f) EC, which mentions the establishment of a common policy in the sphere of transport as an objective of the Community. ⁸⁵ Case 22/70 Commission v Council [1971] ECR 263, para 22. ⁸⁶ See further ch 2. ⁸⁷ cf AA Dashwood and J Heliskoski, ‘The Classic Authorities Revisited’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 6. Note that while the Court upheld the Community’s competence in the ERTA case, it also recognized that it would have been unwise for the Community, given the state of the negotiations for the ERTA Agreement, to announce suddenly to its third country negotiating partners that the distribution of powers within the Community had been altered and that they would have to negotiate with different actors from those whom they were used to. Such an attitude might have jeopardized the outcome of the negotiations (para 86). It therefore concluded that the Member States ‘acted, and continue to act, in the interest and on behalf of the Community’ in accordance with Art 10 EC (para 90). On the Court’s constant balancing act between principle and pragmatism: T Tridimas and P Eeckhout, ‘The External Competences of the Community and the Case-Law of the Court of Justice: Principle versus Pragmatism’ (1994) 14 YEL 143–177. Cf P Koutrakos, EU International Relations Law (2006) 134, who argues that the Court’s pragmatism confirms its place as the ultimate arbiter of any dispute arising in Community external relations. ⁸⁸ Case 22/70 Commission v Council [1971] ECR 263, para 17. ⁸⁹ Opinion 1/76 Draft Agreement establishing a European laying-up fund for inland waterway vessels [1977] ECR 741, para 4; cf AA Dashwood and J Heliskoski, ‘The Classic Authorities Revisited’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 7.

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The Court in the ERTA judgment, however, does not explicitly refer to the logic of implication from internal competences in order to confirm the existence of implied external competences. It was only from the Kramer judgment onward that the Court started referring to external competences being implied from internal ones.⁹⁰ In the ERTA judgment, the Court explained that an external competence could equally arise from a provision that grants an internal competence without this provision explicitly providing that that competence could also be exercised on the external front. Nowhere, however, did the Court say that the conclusion of the existence of such external competences was reached by implication. The effectiveness argument in the ERTA judgment is not linked to the necessity of ensuring the effectiveness of the relevant internal competence.⁹¹ In other words, the ERTA principle provides that Community external competence exists whenever Community ‘common rules’ could be affected. As will be argued, the complementarity principle operates through a different logic, based on a need for external competence to ensure the effectiveness of the internal competences at issue.

1.3.6 Complementarity The complementarity principle,⁹² as developed by the Court, essentially implies that whenever Community law has conferred internal competences on the institutions to attain a specific objective, the Community can enter into the international commitments necessary for attainment of that objective even in the absence of an express provision to that effect.⁹³ Many took the view that instead of complementarity, the Court had embraced a logic of parallelism:⁹⁴ every internal competence would automatically be equipped with its external equivalent. As will be argued, this view has become unsustainable after Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property.⁹⁵ It should, however, be noted that the term ‘parallelism’ has also been used to denote the existence of implied external competences necessary for the exercise of internal competences with the caveat that it does not widen ‘the external competence of the Community from a substantive point of view’.⁹⁶ ⁹⁰ cf AA Dashwood and J Heliskoski, ‘The Classic Authorities Revisited’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 10. ⁹¹ AA Dashwood, ‘The Attribution of External Relations Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 118. ⁹² The name originates from AA Dashwood, ‘The Attribution of External Relations Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 127–132. ⁹³ Opinion 2/94 Accession by the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECR I-1759, para 26; cf P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 67. ⁹⁴ eg J Groux, ‘Le parallèlisme des competences internes et externes de la Communauté économique européenne’ (1978) 14 Cahiers de droit européen 3–32. ⁹⁵ [1994] ECR I-5267. ⁹⁶ Notably by T Tridimas and P Eeckhout, ‘The External Competences of the Community and the Case-Law of the Court of Justice: Principle versus Pragmatism’ (1994) 14 YEL 153.

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The first hint of the complementarity principle can be found in the ERTA judgment. The Court took pains to explain that implied external competence may arise when internal measures have already been taken⁹⁷ and that by implication the competence stays with the Member States before such internal Community measures have come into existence.⁹⁸ It would, however, be misguided to conclude from this that the Court held that the pre-existence of internal measures is the only way implied external competences could come into existence: 23 According to Article [70], the objectives of the Treaty in matters of transport are to be pursued within the framework of a common policy. 24 With this in view, Article [71] (1) directs the Council to lay down common rules and, in addition, ‘any other appropriate provisions’. 25 By the terms of subparagraph (a) of the same provision, those common rules are applicable ‘to international transport to or from the territory of a member state or passing across the territory of one or more member states’. 26 This provision is equally concerned with transport from or to third countries, as regard that part of the journey which takes place on Community territory. 27 It thus assumes that the powers of the Community extend to relationships arising from international law, and hence involve the need in the sphere in question for agreements with the third countries concerned.

While the first two of these paragraphs might give the impression that the Court is merely elaborating on its previously stated principle of the emergence of implied external competences through the pre-existence of internal measures, the other paragraphs appear to be based on a different logic. The Court in fact seems to be drawing a direct inference from Article 71 EC, which contains an eff et utile principle, and arguing that certain Treaty provisions, such as those on transport policy, may necessarily contain an international dimension by the mere fact that they could not otherwise be effectively implemented. The case of transport policy makes this quite clear. From the fact that Article 71 EC clearly aims to regulate ‘international transport to or from the territory of a member state or passing across the territory of one or more member states’, it would seem to follow logically that the Community should have the competence to enter into international agreements on the subject. Even though the Court seems to touch upon this line of thought only briefly in the ERTA judgment, it reappears in the Kramer judgment,⁹⁹ and is finally clearly set out in Opinion 1/76 Draft Agreement establishing a European laying-up fund for inland waterway vessels.¹⁰⁰ In the Kramer judgment, the Court attempted to clarify the eff et utile principle it had put forward in the ERTA judgment. It emphasized that the conservation ⁹⁷ Case 22/70 Commission v Council [1971] ECR 263, paras 28, 30, and 66. ⁹⁸ Ibid, para 82. ⁹⁹ Joined Cases 3, 4, and 6/76, Cornelis Kramer and others [1976] ECR 1279. ¹⁰⁰ [1977] ECR 741; see AA Dashwood and J Heliskoski, ‘The Classic Authorities Revisited’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 7–9.

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of the biological resources of the sea could only be ensured ‘effectively and equitably’ through rules binding on all the States concerned, including third countries. It thus followed from the ‘very duties and powers which Community law has established and assigned to the institutions of the Community on the internal level’ that the Community had authority to enter into international commitments for the conservation of the resources of the sea.¹⁰¹ The Kramer judgment showed that there could be external competences in the absence of internal implementing legislation. The underlying principle was spelt out in Opinion 1/76,¹⁰² where the Court made the eff et utile point that it would have been impossible fully to attain the objective pursued in casu by merely introducing internal Community legislation, because of the traditional participation of vessels from Switzerland in navigation by the principal waterways in question. It would, therefore, be necessary to conclude an international agreement with Switzerland.¹⁰³ Whenever Community law has conferred internal competences to the Community institutions for attaining a specific objective, ‘the Community has authority to enter into the international commitments necessary for the attainment of that objective even in the absence of an express provision in that connexion’.¹⁰⁴ The Court thus does not see implied external competences as a substantive extension of the Community’s competences.¹⁰⁵ Internal Community competences are supported by the corresponding external competences when the latter are truly ‘implicit’ in the former. This is the case when the internal Community competences cannot reasonably be expected to be effectively exercised without the possibility for the Community to enter into international agreements with third countries on the same subject-matter.¹⁰⁶ How to interpret the condition that an implied external competence can only be deemed to exist when it is thought ‘necessary for the attainment of one of the objectives of the Community’?¹⁰⁷ Guidance can be found in Opinion 2/91 in the

¹⁰¹ Joined Cases 3, 4, and 6/76, Cornelis Kramer and others [1976] ECR 1279, paras 30 and 33. The Court later decided in Case 804/79 Commission v United Kingdom [1981] ECR 1045, paras 17–18 that measures in the field of conservation of the resources of the sea now ‘belonged fully and definitively to the Community’. ¹⁰² Opinion 1/76 Draft Agreement establishing a European laying-up fund for inland waterway vessels [1977] ECR 741. ¹⁰³ Ibid, para 2. ¹⁰⁴ Ibid, para 3. ¹⁰⁵ T Tridimas and P Eeckhout, ‘The External Competences of the Community and the CaseLaw of the Court of Justice: Principle versus Pragmatism’ (1994) 14 YEL 153. ¹⁰⁶ In that sense eg AA Dashwood and J Heliskoski, ‘The Classic Authorities Revisited’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 12–13; P Eeckhout External Relations of the European Union: Legal and Constitutional Foundations (2004) 69. ¹⁰⁷ Opinion 1/76 Draft Agreement establishing a European laying-up fund for inland waterway vessels [1977] ECR 741, para 3 (emphasis added); cf Joined Cases 3, 4, and 6/76, Cornelis Kramer and others [1976] ECR 1279, paras 30 and 33.

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way the Court reaches the conclusion that the Community has competence to conclude ILO Convention No 170:¹⁰⁸ Under Article 118a of the Treaty, Member States are required to pay particular attention to encouraging improvements, especially in the working environment, as regards the health and safety of workers, and to set as their objective the harmonization of conditions in this area, while maintaining the improvements made. In order to help achieve this objective, the Council has the power to adopt minimum requirements by means of directives. . . . The Community thus enjoys an internal legislative competence in the area of social policy. Consequently, Convention No 170, whose subject-matter coincides, moreover, with that of several directives adopted under Article 118a, falls within the Community’s area of competence.¹⁰⁹

The Court thus does not reserve the possible existence of implied external competences only for situations where these would be indispensable for the effective attainment of a Community goal. Dashwood and Heliskoski suggest a possible interpretation of what the Court has in mind. The test they propose is as follows: ‘does the Community need treaty-making power to ensure the optimal use, over time, of its expressly conferred internal competence?’¹¹⁰ This rightly suggests a logic of facilitation rather than one of indispensability. However, it is important to distinguish between the necessity criterion for the existence of implied external competence and the same criterion with regard to its exclusivity. While ‘facilitation’ is the key concept with regard to necessity in the context of the existence question, the exclusivity of implied competences is governed by a stricter concept of necessity: the link between internal and external competences must be inextricable.¹¹¹ Koutrakos has, however, pointed out that the Court in Opinion 2/91¹¹² appears to deduce the existence of implied external competence automatically from the existence of internal legislative competence with regard to social policy without any suggestion of policy considerations to be taken into account.¹¹³ It is indeed true that the Court’s language in Opinion 2/91 appears to suggest an automatic effect of this kind, which would support claims of the existence of a general parallelism between internal and external competences. The Court’s rejection of the Commission’s arguments to that effect in Opinion 1/94,¹¹⁴ however, tends ¹⁰⁸ Convention concerning Safety in the use of Chemicals at Work No C170, 25 June 1990. ¹⁰⁹ Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work [1993] ECR I-1061, paras 16–17. As is clear from the Court’s quotation of Art 118a EEC Treaty, the Member States are required to take certain measures. The EEC’s competence was thus of a purely subsidiary nature. The Court seemed, however, untroubled by this in its recognition of implied external competences for the Community. See P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 72. ¹¹⁰ AA Dashwood and J Heliskoski, ‘The Classic Authorities Revisited’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 16. ¹¹¹ AA Dashwood, ‘The Attribution of External Relations Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 133–134. ¹¹² Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work [1993] ECR I-1061, para 17. ¹¹³ P Koutrakos, EU International Relations Law (2006) 104. ¹¹⁴ Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267.

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to suggest that considerations about the optimal use of competences are probably a better explanation of the Court’s reasoning. The Commission had argued that, because the Community was competent to legislate internally on the right of establishment, freedom to provide services and transport policy, it was ipso facto also exclusively competent to conclude international agreements on these subject-matters. The Court disagreed. Unlike the chapter on transport at issue in the ERTA case, the chapters on the right of establishment and on freedom to provide services at issue in Opinion 1/94 do not contain any provision expressly extending the competence of the Community to ‘relationships arising from international law’. The sole objective of those chapters is to secure the right of establishment and freedom to provide services for nationals of Member States. They contain no provisions pertaining to nationals of non-Member States. ‘One cannot therefore infer from those chapters that the Community has exclusive competence to conclude an agreement with non-member countries to liberalize first establishment and access to service markets, other than those which are the subject of cross-border supplies within the meaning of GATS [¹¹⁵] . . .’.¹¹⁶ The chapters on the right of establishment and the freedom to provide services only aim at securing the rights concerned for the nationals of the Member States. They cannot confer upon the Community a competence to enter into relationships arising from international law whose object and purpose is to liberalize access to Member States’ service markets by the nationals of other WTO members.¹¹⁷ The Commission’s interpretation was thus clearly rejected. The Community cannot be said to be competent to act internationally¹¹⁸ with regard to every single policy for which it has internal legislative competence. However, the Court did rule in paragraph 90: Although the only objective expressly mentioned in the chapters on the right of establishment and on freedom to provide services is the attainment of those freedoms for nationals of the Member States of the Community, it does not follow that the Community institutions are prohibited from using the powers conferred on them in that field in order to specify the treatment which is to be accorded to nationals of non-member countries.

In the subsequent paragraphs, the Court refers to directives that do just that. The examples given by the Court show that its acceptance of external competences attached to internal harmonization competences in the areas of establishment and the freedom to provide services would seem to make sense.¹¹⁹ None the less, ¹¹⁵ General Agreement on Trade in Services, 15 April 1994, 1869 UNTS 183; 33 ILM 1167 (1994). ¹¹⁶ Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267, para 81. ¹¹⁷ J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001) 35. ¹¹⁸ The Court’s reference to ‘relationships arising from international law’ (quote from Case 22/70 Commission v Council [1971] ECR 263, para 27) should not be read as only encompassing international agreements: P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 76–77. ¹¹⁹ cf P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 80; on the external dimension of the internal market in financial services: P Eeckhout, The

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the question remains how the passage just quoted can be brought into line with the position the Court seems to take earlier in its Opinion? Dashwood proposes a classification of legal bases not containing a specific reference to external action in two categories: ‘open provisions’ and ‘internal provisions’.¹²⁰ Implied external competences of the former category are only implied in the sense that the Treaty provisions granting internal legislative competence do not explicitly mention the fact that the Community is equally competent to enter into international legal relations on the same subject-matter. The wording of the relevant Treaty provisions or the nature of the subject-matter, however, leave little doubt about the need for the Community to take action on the external front to complement its internal legislative action. An obvious example of this category would be Article 71(1)(a) EC, at issue in the ERTA case. The category of ‘internal provisions’ covers exactly that: Treaty provisions which are prima facie only directed towards internal legislative action. External competences can only arise in this context when the need for action on the international plane arises in the course of implementation of the ‘internal provisions’ by the Community legislator. The chapters on the right of establishment and the freedom to provide services are examples of this category of internal competences. This situation could arguably also be covered by the ERTA principle. The need for external action with regard to internal provisions arises in the course of their implementation through Community legislation. Because of the external aspects of this internal legislation, it becomes clear that independent external action by the Member States on the subject-matter would affect Community common rules. In accordance with the ERTA principle, which is essentially an alternative way of acquiring implied external competences next to the complementarity principle, this would give rise to external Community competences. The above would seem to suggest that necessity as a criterion for the existence of implied external competences should be interpreted as based on considerations regarding optimal use of the Community’s competences, and not on a strict logic of indispensability. While the Court in Opinion 2/91¹²¹ did not state explicitly that implied external competences existed because this facilitated the achievement of the Community objectives, Opinion 1/94¹²² suggests that such considerations underlie the Court’s reasoning with regard to complementarity. This differs from necessity as a criterion for exclusivity, which is based on a strict construction of necessity as indispensability.¹²³ European Internal Market and International Trade: A Legal Analysis (1994) 47–84. ¹²⁰ AA Dashwood, ‘The Attribution of External Relations Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 131. ¹²¹ Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work [1993] ECR I-1061. ¹²² Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267. ¹²³ cf AA Dashwood, ‘The Attribution of External Relations Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 133–134.

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Holdgaard, however, argues that this interpretation is jeopardized by the Court’s reasoning in the Open Skies cases,¹²⁴ where the Court appears to require an inextricable link between the exercise of an external competence and the attainment of a Community objective for an implied external competence to exist in the absence of prior internal legislation. While the Court’s words are not entirely unequivocal, Holdgaard rightly concludes that if this is what the Court meant, this view is difficult to marry with the eff et utile principle, and hence with the entire system of implied competences.¹²⁵ It would also seem to run counter to the clear language of Opinion 2/94.¹²⁶ However, even if the Court were to take the view that the existence of implied external competence requires an ‘inextricable link’ between internal and external policies, this should not be taken as excluding the possibility of non-exclusive implied external competences, which the Court explicitly confirmed in Opinion 1/03.¹²⁷ Implied external competences can come into existence due to the exercise of corresponding internal competences without the latter having been exercised to such an extent that exclusivity would arise under the ERTA principle.¹²⁸ It should be noted that the complementarity principle can also work the other way around: a legal basis exclusively intended for external matters can be used to adopt an internal legal instrument. Th is happened with regard to Council Regulation (EC) 2894/94,¹²⁹ implementing the EEA-Agreement, which was adopted with as legal bases two Articles solely intended for external policies.¹³⁰

1.4 General Legal Bases in the EC Treaty and the Existence of External Competences In the absence of a specific legal basis for external action in the EC Treaty, recourse may be had to Article 308 EC. This Article enables the Community to take appropriate measures in case action should prove necessary to attain one of the objectives ¹²⁴ Particularly Case C-467/98 Commission v Denmark [2002] ECR I-9519, paras 55–57. ¹²⁵ R Holdgaard, ‘The European Community’s Implied External Competence after the Open Skies Cases’ (2003) 8 Eur Foreign Affairs Rev 384. ¹²⁶ Accession by the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECR I-1759. ¹²⁷ 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-01145, paras 114–115. ¹²⁸ R Holdgaard, ‘The European Community’s Implied External Competence after the Open Skies Cases’ (2003) 8 Eur Foreign Affairs Rev 383–384; cf Case C-459/03 Commission v Ireland [2006] ECR I-4635, paras 104–108. ¹²⁹ Council Regulation (EC) 2894/94 of 28 November 1994 concerning arrangements for implementing the Agreement on the European Economic Area [1994] OJ L305/6. ¹³⁰ Namely Arts 238 EC (presently 310 EC) and 228(2), second phrase and (3), para 2 EC (presently amended 300 EC).

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of the Community in the course of the operation of the common market and the EC Treaty does not provide the necessary specific legal basis.¹³¹ Examples of the use of this Article as a legal basis for external action are early Community participation in international environmental agreements, prior to the Single European Act,¹³² development cooperation, prior to the Treaty on European Union,¹³³ and economic, financial, and technical cooperation with third countries before the Treaty of Nice.¹³⁴ The Court in the ERTA judgment explicitly sanctioned the legality in abstracto of relying on Article 308 EC as a legal basis for external action, when it pointed out that it empowers the Council to take ‘any appropriate measures’ equally in the sphere of external relations. This power, the Court continued, ‘does not create an obligation, but confers on the Council an option, failure to exercise which cannot affect the validity of proceedings’.¹³⁵ Put differently, it is not true that if something can be done under Article 308 EC it has to be done so instead of under Member State competences. However, this discretion is limited. First, recourse to Article 308 EC is justified only where no other provision of the Treaty either expressly or impliedly gives the Community institutions the necessary power to adopt the measure in question.¹³⁶ Secondly, any recourse to Article 308 EC should, in accordance with the principle of conferral, stay well within the scope of the Treaty. This was borne out by the Court’s reasoning on Article 308 EC as a possible legal basis for accession of the Community to the European Convention on Human Rights¹³⁷ in Opinion 2/94.¹³⁸ In accordance with its logic as an ‘if-all-else-fails’ legal basis, recourse to Article 308 EC only became relevant when the Court had established that there were no express or implied powers in the Treaty that could constitute a legal basis for accession to the European Convention on Human Rights.¹³⁹ Article 308 EC is designed to fill the gap where no specific provisions of the Treaty confer on the Community institutions express or implied competences to act if such competences appear none the less to be necessary to enable the Community to carry out ¹³¹ In general: P Craig, EU Administrative Law (2006) 407–410. ¹³² eg Council Decision 81/462/EEC of 11 June 1981 on the conclusion of the Convention on long-range transboundary air pollution [1981] OJ L171/11: D McGoldrick, The International Relations Law of the European Union (1997) 62, fn 114. ¹³³ eg Council Decision 90/674/EEC of 19 November 1990 on the conclusion of the Agreement establishing the European Bank for Reconstruction and Development [1990] OJ L372/1: D McGoldrick, The International Relations Law of the European Union (1997) 62, fn 115. ¹³⁴ cf the Opinion of Mengozzi AG in Case C-91/05 Commission v Council [2005] OJ C115/10, points 145–147 and the examples cited in footnote thereto. ¹³⁵ Case 22/70 Commission v Council [1971] ECR 263, para 95. ¹³⁶ Joined Cases C-51/89, C-90/89, and C-94/89 United Kingdom, France and Germany v Council [1991] ECR I-2757, para 6; Opinion 2/92 Competence of the Community or one of its institutions to participate in the Third Revised Decision of the OECD on national treatment [1995] ECR I-521, para 36. ¹³⁷ Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, 213 UNTS 221. ¹³⁸ Accession by the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECR I-1759. ¹³⁹ Opinion 2/94 Accession by the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECR I-1759, para 28.

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its functions to attain one of the objectives laid down by the Treaty.¹⁴⁰ However, in accordance with the principle of conferral, Article 308 EC ‘cannot serve as a basis for widening the scope of Community powers beyond the general framework created by the provisions of the Treaty as a whole and, in particular, by those that define the tasks and the activities of the Community’. Nor can it ‘be used as a basis for the adoption of provisions whose effect would, in substance, be to amend the Treaty without following the procedure which it provides for that purpose’.¹⁴¹ The Court thus took the view that accession to the European Convention on Human Rights would clearly go beyond the ‘general framework created by the provisions of the Treaty’: ‘[A] modification of the system for the protection of human rights in the Community, with equally fundamental institutional implications for the Community and for the Member States, would be of constitutional significance and would therefore be such as to go beyond the scope of Article [308]. It could be brought about only by way of Treaty amendment.’¹⁴² Finally, recourse to Article 308 EC may not contradict any other existing Treaty provisions, be they general principles such as subsidiarity and proportionality,¹⁴³ or more specific provisions, for example prohibiting harmonization in a certain area or explicitly stating¹⁴⁴ that certain matters fall within the competence of the Member States.¹⁴⁵

1.5 Conclusion The most striking contrast between the operation of the principle of conferral in external matters and its operation in internal matters is the importance of implied external competences. Why did the Court of Justice very regularly choose to resort to implied competence with regard to the Community’s external relations, but only very occasionally with regard to internal competences? The explanation presumably lies in the proliferation of express legal bases with regard to internal matters, in contrast to the scarcity of explicit external legal bases, due ¹⁴⁰ Ibid, para 29. ¹⁴¹ Ibid, para 30. ¹⁴² Ibid, para 35. The wisdom of this Opinion is widely debated: eg P Eeckhout, ‘The EU Charter of Fundamental Rights and the Federal Question’ (2002) 39 CML Rev 984–985, referring to the existence of a ‘functional human-rights competence’; further: P Eeckhout, ‘General Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 280–282. ¹⁴³ Art 5 EC. ¹⁴⁴ eg Art 149(1) EC, explicitly mentioning the responsibility of the Member States for the content of teaching and the organization of education systems and their cultural and linguistic diversity. ¹⁴⁵ cf I MacLeod, ID Hendry, and S Hyett, The External Relations of the European Communities: a Manual of Law and Practice (1996) 54; D McGoldrick, The International Relations Law of the European Union (1997) 62–63; D O’Keeffe, ‘Exclusive, Concurrent and Shared Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 191.

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to the apparent reluctance of the Member States explicitly to confer external relations competences in the EC Treaty. For example, there is no explicit external competence in Title IV of Part III of the EC Treaty on asylum and immigration. The absence of specific legal bases might have been thought to be compensated partly by the possibility provided for in Article 308 EC to act in the absence of explicitly attributed competences, of which the Member States have made use. However, since unanimity in the Council is required, the use of this provision for all necessary external aspects of internal competences would have implied a much heavier procedure. Moreover, Article 308 EC is only available as a legal basis when no other provision in the EC Treaty expressly or impliedly grants the Community the necessary competence to adopt the measure in question.¹⁴⁶ Through its case-law on implied external competences, the Court has shown its sensitivity to the importance of the Community’s role in the wider world.¹⁴⁷ In order for the Community to function at all, its strong presence on the international scene is necessary, backed up by significant capabilities in international law-making. The Court was alert to the changing realities of the international legal context in which the Community operates and did not fail to respect the fundamental characteristic of the Community’s constitutional edifice: the principle of conferral. The Court has thus acted, broadly speaking, as a competent arbitrator between the different forces in the federal-type structure of the Community.¹⁴⁸

¹⁴⁶ Joined Cases C-51/89, C-90/89, and C-94/89 United Kingdom, France and Germany v Council [1991] ECR I-2757, para 6; Opinion 2/92 Competence of the Community or one of its institutions to participate in the Third Revised Decision of the OECD on national treatment [1995] ECR I-521, para 36. It is important to note that the competence of the Council under Art 308 EC is itself of course explicit and not implied: cf K Lenaerts, Le juge et la constitution aux États-unis d’Amérique et dans l’ordre juridique européen (1988) 470–471, para 396. ¹⁴⁷ M Cremona, ‘External Relations and External Competence: The Emergence of an Integrated Policy’ in P Craig and G de Búrca (eds), The Evolution of EU Law (1999) 146–149; P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 96. ¹⁴⁸ Could there be an indication that the Court’s cautious approach with regard to external Community competences is now beginning to ‘spill-over’ into its treatment of internal Community competences, as exemplified in some of the Court’s more recent case-law? eg Case C-376/98 Germany v European Parliament and Council [2000] ECR I-8419; cf A Von Bogdandy and J Bast, ‘The European Union’s Vertical Order of Competences: the Current Law and Proposals for its Reform’ (2002) 39 CML Rev 238, who argue that this judgment shows that the Court is both willing and able to assert itself as the highest court adjudicating on competences in a constitutional order.

2 Vertical Conflict Resolution in EC External Relations: Exclusivity and Non-exclusivity 2.1 Introduction While primacy is the principle for solving vertical competence conflicts in the EU legal order and in its internal policies in particular, its typical expression within external relations is the principle of exclusivity. The principle of loyalty as enshrined in Article 10 EC is the common foundation for these principles. The different needs of the internal and external policies, however, have turned primacy and exclusivity into rather different principles. The differences between these will be explored in this chapter. As will be discussed, the principle of exclusivity goes further than the primacy principle, and the underlying foundation of loyalty is more strongly insisted upon with regard to the former than the latter. While the primacy principle does not necessarily prevent the Member States from adopting any legislation, the exclusivity principle does prevent the Member States from entering into certain international obligations damaging to the Community’s interests. This difference is a consequence of the fact that the requirements of loyalty are different in external and internal Community matters. While internally there is no need for the Community to prevent the Member States from legislating, as long as the primacy principle guarantees that the Community rule will prevail in case of conflict, the same cannot be said with regard to the external world, because third parties are involved.¹ In formulating the doctrine of exclusivity, the Court has, as will be argued, drawn the appropriate consequences from the principle of loyalty for the Community’s external action. This does not mean that exclusivity has no role in internal policies, as both fisheries conservation and monetary policy for the Member States whose currency is ¹ cf P Koutrakos, EU International Relations Law (2006) 87: ‘The addition of this international dimension in the constitutionalisation of Community law introduces an element of irreversibility which renders the construction of the principles underlying the Community’s external relations all the more significant’.

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the euro are exclusive Community competences. This is brought home by the Treaty on the Functioning of the European Union, which lists both competences explicitly as exclusive.² However, because of the involvement of third countries, exclusivity is notably more significant in the external than in the internal sphere. This is reflected in the fact that external policies are the sole focus of the Court’s case-law on exclusivity. It is, none the less, important to emphasize that not all external Community competence is exclusive. This chapter focuses on exclusivity as the expression of the loyalty principle in the field of external relations. However, that non-exclusivity remains the default rule, must not be lost sight of.

2.2 Conflict Resolution in Internal Community Matters: Direct Effect, Primacy, and the New Legal Order In Van Gend en Loos,³ the Court held that the EEC Treaty was ‘more than an agreement which merely creates mutual obligations between the contracting states’. Indeed: the states have acknowledged that community law has an authority which can be invoked by their nationals before [national] courts and tribunals. The conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights that become part of their legal heritage.

As is evident from this statement, the Court’s conception of international law seems to have been rooted in the classical conception of international law as purely inter-State law, with only States as its subjects. The Community, on the other hand, had individual citizens as its subjects, which could invoke Community law through the doctrine of direct effect, which the Court also saw as being foreign to international law. The Community, therefore, constituted a ‘new legal order’.⁴ It is now acknowledged by many that the new legal order was not entirely as new as the Court appeared to think it was.⁵ ² Art 3(c) and (d) TFEU (cf Art I-13(1)(c) and (d) TC). ³ Case 26/62 NV Algemene Transport- en Expeditie Onderneming Van Gend & Loos v Nederlandse Administratie der Belastingen [1963] ECR 12. ⁴ O Spiermann, ‘The Other Side of the Story: An Unpopular Essay on the Making of the European Community Legal Order’ (1999) 10 Eur J Intl L 766; note, eg, that the International Court of Justice in the LaGrand Case (Germany v United States of America) [2001] ICJ Reports 466, para 77 ruled that Art 36, para 1 of the Vienna Convention on Consular Relations (24 April 1963, 596 UNTS 261; 21 UST 77; TIAS 6820) creates individual rights. ⁵ For a general discussion: eg D Wyatt, ‘New Legal Order, or Old?’ (1982) 7 ELR 147–166; P Eleftheriadis, ‘Aspects of European Constitutionalism’ (1996) 21 ELR 32–42; O Spiermann,

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In Van Gend en Loos, the Court of Justice remained within the bounds of traditional international law in introducing the doctrine of direct effect into Community law.⁶ Indeed, the Court makes direct effect conditional upon the fulfi lment of criteria directly drawn from international law:⁷ (i) direct effect must be consistent with ‘the spirit, the general scheme and the wording of those provisions’;⁸ and (ii) the provision in question must be ‘clear and unconditional and not contingent on any discretionary implementing measure’.⁹ These conditions, especially the second, can be explained by the original ratio legis of direct effect: the doctrine of the separation of powers. Courts are traditionally kept out of the area of foreign relations, for reasons of sensitivity, diplomacy, national security, and because much scope for negotiation and manoeuvre is deemed necessary. The nature of foreign relations and the formulation of the commitments agreed in frequently vague, ambiguous, and ‘programmatic’ terms have often resulted in little involvement of the courts. Only where unequivocal rights and duties are at stake would judicial intervention be conceivable.¹⁰ ‘The Other Side of the Story: An Unpopular Essay on the Making of the European Community Legal Order’ (1999) 10 Eur J Intl L 763–789; A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (2002) 98–100; R Barents, The Autonomy of Community Law (2004); AM Arnull, AA Dashwood, M Dougan, M Ross, E Spaventa, and D Wyatt, Wyatt & Dashwood’s European Union Law (2006) 132–135, paras 5-006–5-007. ⁶ See Jurisdiction of the Courts of Danzig (Pecuniary Claims of Danzig Railway Officials Who Have Passed Into the Polish Service, Against the Polish Railway Administration) [1928] PCIJ Series B.—No 15, 17–18; For the distinction between direct effect and direct applicability (not always made by the Court of Justice): eg AM Arnull, The European Union and its Court of Justice (2006) 185–187. ⁷ see A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (2002) 311–312. ⁸ Case 26/62 NV Algemene Transport- en Expeditie Onderneming Van Gend & Loos v Nederlandse Administratie der Belastingen [1963] ECR 1, 12. ⁹ See eg Case 44/84 Derrick Guy Edmund Hurd v Kenneth Jones (Her Majesty’s Inspector of Taxes) [1986] ECR 29, para 47. ¹⁰ S Prechal, ‘Does Direct Effect Still Matter?’ (2000) 37 CML Rev 1065, also noting that this line of reasoning can be found in the Court’s case-law regarding Community external relations, eg Case C-149/96 Portugal v Council [1999] ECR I-8395, paras 40 and 46: ‘to require the judicial organs to refrain from applying the rules of domestic law which are inconsistent with the WTO agreements would have the consequence of depriving the legislative or executive organs of the contracting parties of the possibility . . . of entering into negotiated arrangements even on a temporary basis. . . . To accept that the role of ensuring that Community law complies with those rules devolves directly on the Community judicature would deprive the legislative or executive organs of the Community of the scope for manoeuvre enjoyed by their counterparts in the Community’s trading partners.’ See, however, the Opinion of Ruiz-Jarabo Colomer AG in Case C-431/05 Merck Genéricos Produtos Farmacêuticos [2006] OJ C36/22, point 81, pointing out that if that is the real reason for which the Court refuses to acknowledge the direct effect of the WTO agreements, ‘that applies only to fields in which compromise is genuinely possible’. Further on the potential direct effect of international agreements in the Community legal order, and specifically that of the WTO Agreement and decisions of its Dispute Settlement Body: the Opinion of Poiares Maduro AG in Joined Cases C-120/06 P and C-121/06 P FIAMM and FIAMM Technologies v Council and Commission and Fedon & Figli and Fedon America v Council and Commission [2006] OJ C108/6, especially points 18–52.

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The Court further elaborated this core of the EC legal order in Costa v ENEL,¹¹ in which it affirmed the primacy of EC law over national law, and Simmenthal,¹² in which the Court ruled that national courts have a duty to disapply national provisions that conflict with EC law, and must not wait for the national constitutional court to set the national provisions aside. Primacy is equally not a unique feature of the Community legal order. It can already be found in advisory opinions of the Permanent Court of International Justice.¹³ An example is the Advisory Opinion on the Exchange of Greek and Turkish Populations,¹⁴ where the Court referred to ‘a principle which is selfevident, according to which a State which has contracted valid international obligations is bound to make in its legislation such modifications as may be necessary to ensure the fulfilment of the obligations undertaken’.¹⁵ The principle has also been codified as Article 27 Vienna Convention on the Law of Treaties,¹⁶ which determines that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. However, with regard to both direct effect and primacy, the Court of Justice did introduce a novelty: contrary to the traditional situation in international law, the direct effect of certain provisions of Community law does not de facto depend on the attitude of the individual Member States’ constitutional orders to the incorporation of international law into their municipal legal order. The Community legal order claims primacy and Member States’ citizens can rely on directly effective provisions of Community law before their domestic courts regardless of any conditions provisions of international law normally need to fulfil in order to be part of the municipal legal order.¹⁷ It has been argued that the Court was seeking to ‘constitutionalize’ the Treaty, viz ‘to fashion a constitutional framework for a federal-type structure in Europe’.¹⁸ The opposite perspective is to criticize the Court’s alleged ‘judicial activism’.¹⁹ ¹¹ Case 6/64 Flaminio Costa v ENEL [1964] ECR 585. ¹² Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629. ¹³ For an examination of the ground-breaking contribution of the Permanent Court of International Justice to international law, see O Spiermann, International Legal Argument in the Permanent Court of International Justice (2005). ¹⁴ [1925] PCIJ Series B.—Nos 10, 20. ¹⁵ Other examples are The Greco-Bulgarian ‘Communities’ [1930] PCIJ Series B.—Nos 17, 32; Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory. Advisory Opinion [1932] PCIJ Series A./B.—Nos 44, 24; see also the International Court of Justice in Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 [1988] ICJ Reports 12, para 57. ¹⁶ 23 May 1969, UN Doc. A/Conf.39/27; 1155 UNTS 331; 8 ILM 679 (1969); 63 AJIL 875 (1969). ¹⁷ See E Denza, The Intergovernmental Pillars of the European Union (2002) 15; A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (2002) 85, 90, and 99; further: B De Witte, ‘Retour à “Costa”—La primauté du droit communautaire à la lumière du droit international’ (1984) 20 Revue trimestrielle de droit européen 425–454. ¹⁸ FG Mancini, ‘The Making of a Constitution for Europe’ (1989) 26 CML Rev 596. ¹⁹ See famously: H Rasmussen, On Law and Policy in the European Court of Justice: A Comparative Study in Judicial Policymaking (1986).

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Simmenthal suggests that the Court was indeed attempting to constitutionalize the EC Treaty: in accordance with the principle of the precedence of Community law, the relationship between provisions of the Treaty and directly applicable measures of the institutions on the one hand and the national law of the Member States on the other is such that those provisions and measures not only by their entry into force render automatically inapplicable any conflicting provision of current national law but—in so far as they are an integral part of, and take precedence in, the legal order applicable in the territory of each of the Member States—also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with Community provisions.²⁰

It took the Court more than 20 years to clarify what it meant by ‘automatically inapplicable’ and ‘preclude the valid adoption of new national legislative measures’. In the IN.CO.GE case, the Court emphasized that it cannot be inferred ‘from the judgment in Simmenthal that the incompatibility with Community law of a subsequently adopted rule of national law has the effect of rendering that rule of national law non-existent’. A national court faced with a conflict between Community law and a subsequently adopted provision of national legislation is, however, under an obligation ‘to disapply that rule’.²¹ EU law hence does not render Member State law non-existent: it renders it inoperative to the extent of the inconsistency.²² It has been argued that the ‘constitutionalization’ interpretation of the Court’s case-law, whereby the Court is assumed to carry out a quiet revolution, transferring sovereignty to the Union and creating a federal system, is based on a series of misinterpretations, and the failure to see the possibility of constitutions in a non-Statal structure.²³ The Court was possibly moved by a concern that the design of the founding Treaties would be misunderstood by national courts more familiar with international instruments of more limited and specialized ambit.²⁴ On account of its fundamental principles such as primacy, direct effect, and the predominance of judicial remedies over self-help, the Community can be analysed both as a highly developed order of public international law, and as the embryonic stage of a federal constitutional system.²⁵ In developing the principles ²⁰ Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629, para 17 (emphases added). ²¹ Joined cases C-10/97 to C-22/97 Ministero delle Finanze v IN.CO.GE.’90 Srl, Idelgard Srl, Iris ‘90 Srl, Camed Srl, Pomezia Progetti Appalti Srl (PPA), Edilcam Srl, A. Cecchini & C. Srl, EMO Srl, Emoda Srl, Sappesi Srl, Ing. Luigi Martini Srl, Giacomo Srl and Mafar Srl [1998] ECR I-6307, para 21. ²² B De Witte, ‘Direct Effect, Supremacy and the Nature of the Legal Order’, in P Craig and G de Búrca (eds), The Evolution of EU Law (1999) 189–190; A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (2002) 310. ²³ A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (2002) 79, 292–294. See further JHH Weiler and M Wind (eds), European Constitutionalism Beyond the State (2003). ²⁴ D Wyatt, ‘New Legal Order, or Old?’ (1982) 7 ELR 147. ²⁵ AM Arnull, AA Dashwood, M Dougan, M Ross, E Spaventa, and D Wyatt, Wyatt and Dashwood’s European Union Law (2006) 134, para 5-007.

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of primacy and direct effect, the Court did not, however, intend to transfer sovereignty wholly to the EU/EC level, but acted to protect the autonomy of the Community legal order. Primacy does not imply subordination of Member State law to Community law but precedence in case of conflict to the extent that this is necessary to see EU law effectively applied within its own sphere.²⁶ The Union and Member States’ legal orders exist together in a non-hierarchical manner. The most accurate description of the relationship between EU law and Member State law is therefore not one of hierarchy, but one of loyalty and of mutual recognition.²⁷

2.3 Conflict Resolution in Community External Relations: Exclusivity and Non-exclusivity 2.3.1 Introduction Resolution of vertical competence conflicts with regard to internal as well as external competences is based on the principle of loyalty as enshrined in Article 10 EC. However, external competence in a multi-level constitutional system²⁸ such as the EU is rarely a binary matter of either the Community or the Member States having competence. Federalism requires that the competences of both the federation and the federated entities are analysed to establish to which degree competence exists at the different levels. More often than not, the federation and the federated entities will both remain competent to act in certain policy fields, both internally and externally. The same is true for the Community. None the less, there will also be areas in which it was considered opportune to give exclusive competence in external matters to either the federation or the federated entities. The strictures of loyalty in external relations vary accordingly: from a disability for the Member States to enter into international agreements in areas of exclusive Community competence to the requirement to respect the Community’s policies in areas of non-exclusive competences. The following overview of when the Community is exclusively competent in external matters²⁹ is followed by a discussion of when both the Community and the Member States remain competent to act internationally.³⁰ In thus distinguishing between exclusive and non-exclusive competences, the distinction ²⁶ cf N MacCormick, Questioning Sovereignty: Law, State, and Practical Reason (1999) 117. ²⁷ See A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (2002) 299–304. Cf K Schiemann, ‘Europe and the Loss of Sovereignty’ (2007) 56 ICLQ 475– 490; D Halberstam, ‘Constitutionalism and Pluralism in Marbury and Van Gend’ in M Poiares Maduro and L Azoulai (eds), The Past and the Future of EU Law: Revisiting the Classics on the 50th Anniversary of the Rome Treaty (forthcoming (2008)), who argues that both Marbury v Madison 1 Cranch (5 U.S.) 137 (1803) for the USA and the Van Gend & Loos case for the EU ‘inaugurate a regime of mutual accommodation among the competing actors lasting to this very day’. ²⁸ cf I Pernice, ‘Multilevel Constitutionalism in the European Union’ (2002) 27 ELR 511–529. ²⁹ ch 2.3.2. ³⁰ ch 2.3.3.

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used by the Court is largely followed. Matters are, however, often more complicated than may be captured in such a simple dichotomy, and a further classification of the Community’s competences is possible. Within the category of non-exclusive competences, this study also refers to two sub-categories: (i) ‘shared/concurrent competences’, which can be exercised by the Member States to the extent that the Union has not exercised, or has decided to cease exercising, its competence;³¹ (ii) ‘parallel competences’, with regard to which both the Community and the Member States remain competent to act internationally without the one being able definitively to prevent the other from acting.³²

2.3.2 Exclusivity The Member States are prohibited from acting in areas where the Community enjoys exclusive competence, except for the necessary implementation of Community legislation,³³ and for Member States obtaining authorization to act as agents for the Community.³⁴ A number of different roads can lead to the conclusion that the Community is exclusively competent to act internationally.³⁵

2.3.2.1 The Treaty itself grants exclusive competence: a priori exclusivity Here, exclusivity follows directly from an interpretation of the EC Treaty provisions, and is therefore independent of the exercise of the competences in question by the Community.³⁶ As can be expected from the logic of the Community’s system of external relations, this category is rather small.³⁷ The Court has derived from the Treaty that the Community enjoys exclusive external competence in particular in two fields: the common commercial policy (CCP) and the common fisheries policy (CFP). The Court held in Opinion 1/75 [Draft Understanding on a Local Cost Standard drawn up under the auspices of the OECD] that the CCP ‘is conceived in [Article ³¹ This study therefore uses the term ‘shared competences’ in the meaning ascribed to it by Art 2(2) TFEU (and cf Art I-12(2) TC). ³² For comparison: A Von Bogdandy and J Bast, ‘The European Union’s Vertical Order of Competences: The Current Law and Proposals for its Reform’ (2002) 39 CML Rev 248–250. ³³ A Von Bogdandy and J Bast, ‘The European Union’s Vertical Order of Competences: The Current Law and Proposals for its Reform’ (2002) 39 CML Rev 241; K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 95, para 5-022. ³⁴ K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 98, para 5-026. ³⁵ cf similar classifications by I MacLeod, ID Hendry, and S Hyett, The External Relations of the European Communities: A Manual of Law and Practice (1996) 56 et seq and 58 et seq and D O’Keeffe, ‘Exclusive, Concurrent and Shared Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 181 et seq. ³⁶ This is a separate issue from whether the full effects of exclusivity will only apply after the end of a transitional period, as was the case with regard to the CCP and CFP. ³⁷ Not only the category of explicitly granted exclusive external competences, but the entire category of exclusive competences is small.

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133 EC] in the context of the operation of the Common Market, for the defence of the common interests of the Community, within which the particular interests of the Member States must endeavour to adapt to each other’.³⁸ In this important paragraph, the Court seems to put forward a conception of the Community as an entity that is more than the sum of its components. The Community is not just there to defend the Member States’ interests through a mechanism arriving at an aggregate that equals the lowest common denominator, but exists to defend what the Court calls proper ‘common interests of the Community’.³⁹ Allott suggests that this might also be the crux of what distinguishes the Community from other international organizations, whose activity remains largely ‘a form of interaction between governments, a form of communalized decision-making among governments’.⁴⁰ The Court took the view that ‘this conception is incompatible with the freedom to which the Member States could lay claim by invoking a concurrent power, so as to ensure that their interests were separately satisfied in external relations, at the risk of compromising the effective defence of the common interests of the Community’.⁴¹ While this line of reasoning seems persuasive and, through its development of a conception of the ‘common interests of the Community’, quite attractive, one wonders why the Court feels the need to wave the banner of common Community interest in this context and not in other situations, where it would seem to be equally applicable. Examples include common transport policy,⁴² or CFP, where the Court’s reasoning is much more based on practical considerations. The Court seems not to have known how to develop the concept of ‘common interests of the Community’, and it never surfaced again directly as a basis for a priori exclusivity.⁴³ The Court held in Opinion 1/75 that unilateral action by the Member States would inevitably lead to disparities in the conditions for the grant of export credits. This would distort competition between undertakings of the various Member States in external markets. It would also endanger the entire internal market structure of the Community.⁴⁴ ³⁸ [1975] ECR 1355, 1363–1364. ³⁹ P Allott, ‘Adherence To and Withdrawal From Mixed Agreements’ in D O’Keeffe and HG Schermers (eds), Mixed Agreements (1983) 113 calls this the ‘principle of the Community’s own interests’. ⁴⁰ Ibid, 114. ⁴¹ Opinion 1/75 [Draft Understanding on a Local Cost Standard drawn up under the auspices of the OECD] [1975] ECR 1355, 1364. ⁴² For which the Court never recognized exclusive Community competence: see P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 14. ⁴³ However, it was, for example, raised by the Commission in Opinion 2/00 [Cartagena Protocol] [2001] ECR I-9713, 9727, but was not dealt with by the Court; Jacobs AG referred to it in his Opinion in Case C-316/91 European Parliament v Council [1994] ECR I-625, point 59; and see the Opinion of Tizzano AG in the Open Skies cases, point 64. ⁴⁴ See P Eeckhout, The European Internal Market and International Trade: A Legal Analysis (1994) 186–246. However, this argument based on the close link between the internal market and the CCP may also serve to delimit the exclusive competence of the Community: P Eeckhout,

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The Court concluded that ‘the provisions of [Article 133] and [former Article] 114[⁴⁵] . . . show clearly that the exercise of concurrent powers by the Member States and the Community in this matter is impossible’.⁴⁶ Not accepting the exclusivity of the Community’s competence would amount to accepting that the Member States could adopt positions in their external trade policies that would be incompatible with the Community’s policy. This, according to the Court, would imply a distortion of the institutional framework, a calling into question of the mutual trust within the Community, and would prevent the Community from properly defending the common interest.⁴⁷ It does not follow necessarily from the fact that the Member States would retain competences in external trade concurrently with the Community that they would not act in accordance with the Community’s common interest, though, of course, they could. The Court’s conclusion that the Community is exclusively competent with regard to external trade is none the less sound from a legal, political, and economic perspective.⁴⁸ Why, however, did the Court conclude that a priori exclusivity was necessary for the CCP instead of relying on the ERTA principle? The answer lies in the nature of the activity. It is impossible to have a properly functioning single market if the Member States are free, in the absence of legislation at the Community level, to enter into international agreements with third countries. In Opinion 1/75, the Court based its reasoning on the notion of ‘common interest of the Community’, which leads to the question of why this interest cannot be sufficiently protected by application of the ERTA principle. The Court could have made this question redundant by clearly spelling out the External Relations of the European Union: Legal and Constitutional Foundations (2004) 21–23; further: CWA Timmermans, ‘La libre circulation des marchandises et la politique commerciale commune’ in P Demaret (ed.), Relations extérieures de la Communauté européenne et marché intérieur: aspects juridiques et fonctionnels (1988) 96–99, proposing the application of a ‘rule of reason’ (introduced by the Court in Case 8/74 Procureur du Roi v Benoît et Gustave Dassonville [1974] ECR 837, para 6 and elaborated in Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649, para 8) to the interpretation of Art 133 EC. ⁴⁵ Repealed by the Treaty of Amsterdam. ⁴⁶ Opinion 1/75 [Draft Understanding on a Local Cost Standard drawn up under the auspices of the OECD] [1975] ECR 1355, 1364. ⁴⁷ cf R Holdgaard, ‘The European Community’s Implied External Competence after the Open Skies Cases’ (2003) 8 Eur Foreign Affairs Rev 369, fn 13, who notes that this type of exclusivity does not apply to the CCP-competences in Art 133(5)–(6) EC, as introduced by the Treaty of Nice. ⁴⁸ See P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 15, pointing out that the Court could also have found support in Art XXIV(8)(a) General Agreement on Tariff s and Trade, 55 UNTS 194; 61 Stat. pt. 5; TIAS 1700 (GATT(1947)). The latter defines a customs union as ‘the substitution of a single customs territory for two or more customs territories, so that (i) duties and other restrictive regulations of commerce . . . are eliminated with respect to substantially all the trade between the constituent territories of the union or at least with respect to substantially all the trade in products originating in such territories, and, (ii) subject to the provisions of paragraph 9, substantially the same duties and other regulations of commerce are applied by each of the members of the union to the trade of territories not included in the union’.

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pragmatically convincing argument that once the Community is a single market, it has to have an exclusive CCP. The Court has, however, often displayed a flexible approach to competence questions.⁴⁹ For example in Opinion 1/78 International Agreement on Natural Rubber, after deciding that the subject-matter of the agreement clearly fell within the scope of Article 133 EC, the Court considered whether the detailed financial arrangements regarding the agreement could ‘lead to a negation of the Community’s exclusive competence’.⁵⁰ The Court reasoned that if the financing is to be by the Member States, that will imply the participation of those states in the decision-making machinery or, at least, their agreement with regard to the arrangements for financing envisaged and consequently their participation in the agreement together with the Community. In that case, the competence of the Community could not be exclusive.⁵¹ With respect to the CFP, the Court established the Community’s exclusivity in Commission v United Kingdom.⁵² It had, however, already held in the Kramer judgment that the CFP would become exclusive once fully developed.⁵³ While the relevant deadlines had not yet passed at the time of the Kramer judgment, they had by the time Commission v United Kingdom was decided: since the expiration of the transitional period determined by Article 102 of the UK’s Act of Accession, the ‘power to adopt, as part of the common fisheries policy, measures relating to the conservation of the resources of the sea has belonged fully and definitively to the Community’.⁵⁴ The Court clarified that ‘Member States are therefore no longer entitled to exercise any power of their own in the matter of conservation measures in the waters under their jurisdiction. The adoption of such measures . . . is a matter . . . of Community law.’⁵⁵ A third area in which the Community appears to enjoy exclusive external competence on the basis of the Treaty is in the external aspects of the EMU under Article 111 EC, at least with respect to the euro and the Member States participating in the final phase of the EMU.⁵⁶ ⁴⁹ cf T Tridimas and P Eeckhout, ‘The External Competences of the Community and the CaseLaw of the Court of Justice: Principle versus Pragmatism’ (1994) 14 YEL 143–177. ⁵⁰ Opinion 1/78 International Agreement on Natural Rubber [1979] ECR 2871, para 52. ⁵¹ Ibid, para 60. Cf, however, Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267, para 21: see ch 7.2.2. ⁵² Case 804/79 Commission v United Kingdom [1981] ECR 1045, especially paras 17–18. ⁵³ Joined Cases 3, 4, and 6/76, Cornelis Kramer and others [1976] ECR 1279, paras 35 and 38–45. ⁵⁴ Case 804/79 Commission v United Kingdom [1981] ECR 1045, para 17. ⁵⁵ Ibid, para 18. ⁵⁶ cf C Zilioli and M Selmayr, ‘The External Relations of the Euro Area: Legal Aspects’ (1999) 36 CML Rev 277; P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 129; further: CW Herrmann, ‘Monetary Sovereignty over the Euro and External Relations of the Euro Area: Competences, Procedures and Practice’ (2002) 7 Eur Foreign Affairs Rev 1–24.

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Whilst certain EC Treaty provisions have been interpreted as establishing exclusive external competences, other provisions explicitly do the opposite. The latter will be analysed in the section on non-exclusive external competences.

2.3.2.2 Exclusivity arising out of the exercise of Community internal competence: the ERTA doctrine Both explicit and implied external competences can become exclusive through the exercise by the Community of its competences.⁵⁷ The relevant case-law will be analysed under each subsection covering a different aspect of this doctrine.⁵⁸ The Court pointed out in the ERTA judgment that when the Community has adopted common rules to implement a common policy, the Member States no longer have the right ‘acting individually or collectively’ to enter into international agreements that would affect those common rules. It follows that, when such common rules exist, the Community alone is capable of assuming and carrying out any ‘contractual obligations’ arising out of international agreements with third countries ‘affecting the whole sphere of application of the Community legal system’.⁵⁹ This does seem a logical and sensible rule.⁶⁰ If the Member States have agreed to regulate certain matters jointly on the Community level, it would make little sense for them to then turn round and conclude international agreements with third parties on the same subject-matter completely independently from the Community. The Court could equally have opted for a different approach, leaving the Member States free to enter into agreements in conflict with Community obligations, which it could then strike down on the basis of the primacy principle and leave the Member State concerned to deal with the adverse consequences for its liability under international law. In other words, it could have opted for the very same conflict-resolution mechanism as with regard to internal matters. However, the Court took the specific character of external relations into account and opted for a more rigorous ‘conflict rule’. It decided that it would be better to prevent embarrassing situations by a priori spelling out which actions would fall outside the Member States’ external competences.⁶¹ ⁵⁷ Th is is sometimes referred to as ‘pre-emption’. However, the Court of Justice has never used this term and there exists no academic consensus on it: R Holdgaard, ‘The European Community’s Implied External Competence after the Open Skies Cases’ (2003) 8 Eur Foreign Affairs Rev 369. ⁵⁸ For a similar methodology: D O’Keeffe, ‘Exclusive, Concurrent and Shared Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 182–187. ⁵⁹ Case 22/70 Commission v Council [1971] ECR 263, paras 17–18; cf ch 1.3.5. 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, para 116. ⁶⁰ In the same sense D McGoldrick, The International Relations Law of the European Union (1997) 71–72; D O’Keeffe, ‘Exclusive, Concurrent and Shared Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 182. ⁶¹ P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 64. On the question whether the ERTA doctrine applies when the internal Community

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The ERTA doctrine is not confined to situations in which the Community has adopted common rules to implement a common policy The reference in ERTA to ‘common rules’ might be taken to imply that exclusive Community competence in an area of external policy could only arise when the Community has adopted common rules to implement a common policy.⁶² However, in Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work the Court clarified that the authority of the decision in the ERTA case is not restricted to instances where the Community has adopted Community rules within the framework of a common policy. Article 10 EC, on which the doctrine of exclusivity is based, requires Member States in all the areas corresponding to the objectives of the Treaty to facilitate the achievement of the Community’s tasks and to abstain from any measure that could jeopardize the attainment of the objectives of the Treaty.⁶³ ‘The Community’s tasks and the objectives of the Treaty would also be compromised if Member States were able to enter into international commitments containing rules capable of affecting rules already adopted in areas falling outside common policies or of altering their scope.’⁶⁴ What does it imply for an intended international agreement to ‘affect the Community rules’? In the ERTA case, the Court was concerned with the possibility that the international agreement intended by the Member States was liable to affect the Community’s common rules, adopted to implement a common policy.⁶⁵ Can intended international agreements affect common rules, even if they do not strictly contradict them? This appears to be the only conclusion possible from Opinion 2/91, where the Court explicitly noted that no contradiction could be found between the existing Community rules and ILO Convention No 170.⁶⁶ It nevertheless concluded that the provisions of ILO Convention No 170 were ‘of such a kind as to affect the Community rules’ laid down in the already existing Community legislation. The Community’s competence therefore had to be exclusive.⁶⁷ rules have been repealed: D O’Keeffe, ‘Exclusive, Concurrent and Shared Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 187. ⁶² Case 22/70 Commission v Council [1971] ECR 263, paras 17–18. ⁶³ Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work [1993] ECR I-1061, para 11; 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, para 118. ⁶⁴ Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work [1993] ECR I-1061, para 12. ⁶⁵ Case 22/70 Commission v Council [1971] ECR 263, para 17. ⁶⁶ Convention concerning Safety in the use of Chemicals at Work, No C170, 25 June 1990. ⁶⁷ Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work [1993] ECR I-1061, paras 25–26; cf 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, para 120.

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Complete harmonization In Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property, the Court ruled that where the Community has achieved complete harmonization of the rules governing access to a self-employed activity it acquires exclusive external competence in that field, even in the absence of any express provision authorizing its institutions to negotiate with non-Member States. This was so, the Court pointed out, 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.⁶⁸ It is thus vital to establish whether complete harmonization has been achieved and thus whether ‘an area’ is completely covered by Community rules. It has been suggested that to that end, a number of aspects of the internal legislation should be subjected to close scrutiny, such as the legal basis of the measure, the preamble, which will hopefully clarify the reasons for adopting the measure, and the content of the measure. The corresponding international agreement should subsequently be subjected to an analogous scrutiny.⁶⁹ This analysis will, however, be far less straightforward than might appear prima facie. What exactly does ‘complete harmonization’ mean? It presumably refers to a socio-economic field that is the subject of a series of measures that collectively harmonize all significant aspects of it. This raises the question of what the concept of ‘area’ encompasses. The difficulties involved can be illustrated by analysing the situation where an area is largely covered by Community legislation, but complete harmonization has not been achieved. Community legislation does not cover the area completely, but only ‘to a large extent’ As soon as the Court, in Opinion 2/91 reached the conclusion that the Community was competent to conclude ILO Convention No 170, it turned its attention to the question whether this competence was exclusive or not:⁷⁰ ‘For the purpose of determining whether this competence is exclusive in nature, it should be pointed out that the provisions of Convention No 170 are not of such a kind as to affect rules adopted pursuant to Article 118a [EEC]’. This was so, the Court ⁶⁸ Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267, paras 95–96. ⁶⁹ D McGoldrick, The International Relations Law of the European Union (1997) 73; D O’Keeffe, ‘Exclusive, Concurrent and Shared Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 183; see eg Opinion 2/92 Competence of the Community or one of its institutions to participate in the Third Revised Decision of the OECD on national treatment [1995] ECR I-521. ⁷⁰ Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work [1993] ECR I-1061, para 18.

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held, because both Article 118a EEC and the rules set out in the ILO convention provided for minimum requirements.⁷¹ However, the Court pointed out that a number of directives adopted in the area covered by Part III of ILO Convention No 170 contained rules that are more than minimum requirements. Those directives in fact contained provisions that in certain respects constitute measures conferring on workers, in their conditions of work, more extensive protection than that accorded under the provisions contained in Part III of Convention No 170. ‘While there is no contradiction between these provisions of the Convention and those of the directives mentioned, it must nevertheless be accepted that Part III of Convention No 170 is concerned with an area which is already covered to a large extent by Community rules . . .’.⁷² The Court concluded that the commitments arising from Part III of Convention No 170, falling within the area covered by the relevant directives were of such a kind as to affect existing Community rules laid down in those directives and that, consequently, Member States cannot undertake such commitments outside the framework of the Community institutions.⁷³ In reaching this conclusion, the Court in Opinion 2/91 seemed to push the limits of exclusive competence outward in quite a significant way. However, the question remains whether Opinion 2/91 can be squared with Opinion 1/94.⁷⁴ The Court, in the latter opinion, ruled that whenever the Community has included in its internal legislative acts provisions relating to the treatment of nationals of non-Member States, or expressly conferred on its institutions powers to negotiate with non-Member States, it acquires exclusive external competence in the spheres covered by those acts. The same applies, even in the absence of any such express provision, when the Community has achieved ‘complete harmonization’ in the field in question. In casu, the Court noted that this was not the case in all service sectors and therefore that the competence to conclude GATS⁷⁵ was shared between the Community and the Member States.⁷⁶ In the same Opinion 1/94, the Court, when trying to establish whether, as the Commission argued ‘the subordinate legislative acts adopted in the Community context could be affected within the meaning of ERTA if the Member States were to participate in the conclusion of TRIPS [⁷⁷]’, concluded the following: ‘Suffice ⁷¹ See further ch 2.3.3.3. ⁷² Ibid, para 25 (emphasis added). ⁷³ Ibid, para 26; 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-01145, para 120. ⁷⁴ Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267. ⁷⁵ General Agreement on Trade in Services, 15 April 1994, 1869 UNTS 183; 33 ILM 1167 (1994). ⁷⁶ Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267, paras 97–98. ⁷⁷ Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994, 1869 UNTS 299; 33 ILM 1197 (1994).

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it to say on that point that the harmonization achieved within the Community in certain areas covered by TRIPs is only partial and that, in other areas, no harmonization has been envisaged.’⁷⁸ Opinion 1/94 could thus be interpreted as the Court taking a stricter view on the acquisition of exclusive Community competence than it did in Opinion 2/91. Did the Court hereby distinguish Opinion 2/91 and abandon its position that exclusivity can arise from the area being covered ‘to a large extent’ by Community legislation?⁷⁹ This appears not to be the case, as the analysis below of 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 matters⁸⁰ clearly indicates. ‘Open Skies’ and Opinion 1/03 In the Open Skies cases,⁸¹ the Court explicitly confirmed that Member States may not enter into international obligations outside the framework of the Community institutions if these obligations fall within the scope of the common rules, or within an area which is already largely covered by such rules, even if there is no contradiction ⁷⁸ Ibid, para 103. It seems that, after outlining a somewhat stricter approach to the acquisition of exclusive external competence by the Community, the Court felt obliged to put a damper on the overzealous claims of some of the Member States that the TRIPS provisions relating to the measures to be adopted to secure the effective protection of intellectual property rights fell within their competence. The Court’s laconic reply was that ‘[i]f that argument is to be understood as meaning that all those matters are within some sort of domain reserved to the Member States, it cannot be accepted’ (para 104). The Court thus made it clear that, while it would be vigilant and wary towards any claim of exclusivity for the Community’s external competences, the same applies to similar claims with regard to Member States’ competences. ⁷⁹ As tentatively suggested by D O’Keeffe, ‘Exclusive, Concurrent and Shared Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 185. ⁸⁰ [2006] ECR I-1145. ⁸¹ Concerning infringement proceedings brought by the Commission against several Member States with respect to various breaches of Community law arising from the conclusion by those Member States of bilateral air transport agreements with the United States of America: Case C-466/98 Commission v United Kingdom [2002] ECR I-9427; Case C-467/98 Commission v Denmark [2002] ECR I-9519; Case C-468/98 Commission v Sweden [2002] ECR I-9575; Case C-469/98 Commission v Finland [2002] ECR I-9627; Case C-471/98 Commission v Belgium [2002] ECR I-9681; Case C-472/98 Commission v Luxembourg [2002] ECR I-9741; Case C-475/98 Commission v Austria [2002] ECR I-9797; Case C-476/98 Commission v Germany [2002] ECR I-9855. See further: R Holdgaard, ‘The European Community’s Implied External Competence after the Open Skies Cases’ (2003) 8 Eur Foreign Affairs Rev 365–394. The Court has recently confirmed its approach in the 2002 Open Skies judgments in Case C-523/04 Commission v Netherlands [2007] ECR I-3267. On 30 April 2007, the Community and its Member States and the USA signed the Air Transport Agreement [2007] OJ L134/4, designed to replace the bilateral open skies agreements between the USA and various EU Member States. Pending entry into force in accordance with Art 26, the Parties agreed to apply the Agreement from 30 March 2008 (Art 25(1)). See further JR Crook, ‘Contemporary Practice of the United States Relating to International Law’ (2007) 101 AJIL 653–655; and see further A Lykotrafiti, ‘European Commission v The Netherlands: A Reminder of the 2002 Open Skies Judgments in the Light of the First EU-US Air Transport Agreement’ (2007) 28 ECLR 578–583.

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between those commitments and the common rules.⁸² If the Community has achieved complete harmonization in a given area, it acquires an exclusive external competence in that area, even in the absence of any express provision authorizing its institutions to negotiate with non-Member States.⁸³ This is so because the common rules thus adopted could be affected within the meaning of the ERTA principle if the Member States retained the freedom to negotiate with non-Member States.⁸⁴ With regard to the latter, the Opinion of Tizzano AG emphasized that in order to establish that the common rules are affected it is not enough to cite general effects of an economic nature that the agreements could have on the functioning of the internal market. A detailed specification is required of the aspects of the Community legislation that could be prejudiced by the agreements.⁸⁵ In the course of the procedure leading up to Opinion 1/03, the UK invited the Court to reconsider its decision in Commission v Denmark that common rules could be affected or distorted ‘in any event within an area which is already largely covered by [common] rules’.⁸⁶ The UK argued that this test is neither clear nor precise, ‘which gives rise to uncertainty and is unacceptable when it comes to limiting the competences of the Member States, whereas according to the first paragraph of Article 5 EC the Community enjoys conferred powers only’.⁸⁷ Abandoning that test, the UK concluded, ‘would give greater precision in defining an ERTA effect whilst ensuring that the Member States fulfil their duty of loyal cooperation when acting in the international sphere’.⁸⁸ Most of the Member State governments that submitted observations to the Court sought clarification of the case-law arising from the ERTA judgment and supported the position taken by the UK that it was necessary to reconsider the test stipulating the fact that the international obligations fall within an area already ‘largely’ covered by Community rules.⁸⁹ The Court was not persuaded and pointed out that what seemed to be general principles in Commission v Denmark were in fact ‘only examples, formulated in the light of the particular contexts with which the Court was concerned’.⁹⁰ The Court then ruled ‘in more general terms’ that it had ⁸² Case C-467/98 Commission v Denmark [2002] ECR I-9519, para 82; Case C-476/98 Commission v Germany [2002] ECR I-9855, para 108. ⁸³ Similarly, whenever the Community has included in its internal legislative acts provisions relating to the treatment of nationals of non-Member States or expressly conferred on its institutions powers to negotiate with non-Member States, it acquires an exclusive external competence in the spheres covered by those acts: Case C-467/98 Commission v Denmark [2002] ECR I-9519, para 83; Case C-476/98 Commission v Germany [2002] ECR I-9855, para 109. See ch 2.3.2.3. ⁸⁴ Case C-467/98 Commission v Denmark [2002] ECR I-9519, para 84; Case C-476/98 Commission v Germany [2002] ECR I-9855, para 110. ⁸⁵ Opinion of Tizzano AG in the Open Skies cases, point 77. ⁸⁶ 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, para 46. ⁸⁷ Ibid, para 47. ⁸⁸ Ibid, para 48. ⁸⁹ Ibid, para 107. ⁹⁰ Ibid, para 121.

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found there to be exclusive Community competence in particular where the conclusion of an agreement by the Member States is incompatible with the unity of the common market and the uniform application of Community law . . . , or where, given the nature of the existing Community provisions, such as legislative measures containing clauses relating to the treatment of nationals of non-member countries or to the complete harmonisation of a particular issue, any agreement in that area would necessarily affect the Community rules within the meaning of the ERTA judgment.⁹¹

The Court did, however, emphasize the importance of the principle of conferral and pointed out that any competence, especially if it is exclusive or implied, ‘must have its basis in conclusions drawn from a specific analysis of the relationship between the agreement envisaged and the Community law in force and from which it is clear that the conclusion of such an agreement is capable of affecting the Community rules’.⁹² The Court also introduced the idea that there can be an ERTA effect where common rules constitute a system the integrity of which is liable to be compromised if Member States exercise their competences autonomously with respect to the agreement in question. It emphasized that it is essential to ensure a uniform and consistent application of the Community rules and the proper functioning of the system they establish in order to preserve the full effectiveness of Community law.⁹³ It held that a comprehensive and detailed analysis must be carried out to determine the existence and nature of the Community’s competence to conclude an international agreement. In doing so, account must be taken not only of the ‘area’ covered by the Community rules and by the provisions of the agreement envisaged, but also of the nature and content of those rules and those provisions, ‘to ensure that the agreement is not capable of undermining the uniform and consistent application of the Community rules and the proper functioning of the system which they establish’.⁹⁴ The Court examined separately the proposed rules in the new Lugano Convention on jurisdiction on the one hand and recognition and enforcement of judgments on the other. It also examined the relevant piece of internal legislation, Council Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters,⁹⁵ and held that, ‘because of the unified and coherent system which it establishes for the recognition and enforcement of judgments, an agreement such as that envisaged, whether it contains provisions on the jurisdiction of courts or on the recognition and enforcement of judgments, is capable of affecting those rules’. The Court concluded that the Community rules on the recognition and enforcement of judgments are indissociable from those on the jurisdiction of courts, with which they form a unified and coherent system, and that the new Lugano Convention would affect the uniform and consistent application ⁹¹ Ibid, para 122. ⁹³ Ibid, para 128. ⁹⁵ [2001] OJ L12/1.

⁹² Ibid, para 124. ⁹⁴ Ibid, para 133.

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of the Community rules as regards both the jurisdiction of courts and the recognition and enforcement of judgments and the proper functioning of the unified system established by those rules. It followed that the Community had exclusive competence to conclude the new Lugano Convention.⁹⁶ In Opinion 1/03, the Court seems to have reaffirmed its approach in Opinion 2/91,⁹⁷ and has potentially extended the scope of the Community’s exclusive external competences.⁹⁸ It is now clear that common rules could be affected or distorted ‘in any event within an area which is already largely covered by [common] rules’ and that this gives rise to exclusive Community competence. It remains far less clear, however, from what moment an area is ‘largely covered’ by common rules. It is unfortunate that the Court did not clarify its case-law in that respect. The problem lies not only in the determination of when an area is ‘largely covered’, but in the concept of ‘area’ itself. The EC Treaty does not draw any clear lines between ‘areas’. Is ‘area’ an abstract concept that refers to different socio-economic categories such as banking, audiovisual services, medical services, and other such categories? If so, the precise distinction between categories may be crucial to determining how completely the ‘area’ has been regulated. Alternatively, might the Court be referring to the specific subject-matter of a given agreement or part of an agreement and asking whether that subject-matter is covered entirely or largely by common rules? The latter conception of ‘area’ would make it clearer and more manageable. If one takes the subject-matter of the intended international agreement as being the ‘area’, it is much easier to determine whether this has been covered by Community legislation than attempting to find out whether a policy area in abstracto is covered by common rules. It is, however, unclear what the Court’s conception of ‘area’ encompasses, and the Court did not lift the veil in Opinion 1/03. Moreover, the entire analysis of whether or not an area is largely covered by common rules seems redundant when looking at it from the perspective of a straightforward application of the ERTA doctrine. Surely the ERTA principle would apply if the agreement relates to matters that are covered by a particular ⁹⁶ Ibid, paras 172–173. See, however, on the position of Denmark, which has opted out of Title IV of the EC Treaty: M Cremona, ‘Community Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 322–323. ⁹⁷ Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work [1993] ECR I-1061. ⁹⁸ None the less, M Cremona, ‘Community Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 323–324, argues that 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 should not be regarded as heralding a new wider reading of the scope of exclusivity, but as a signal that the analysis should focus on the overall nature and effect of an agreement on the Community legal order.

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piece of Community legislation, even if the ‘area’ within which that legislation belongs remains largely unregulated.⁹⁹ The Open Skies cases and Opinion 1/03 also brought consideration of a factor called a ‘disconnection clause’ by the Court.¹⁰⁰ This is a clause included in an international agreement concluded by a Member State providing that the agreement does not affect the application by the Member State in question of the relevant provision of Community law.¹⁰¹ However, such an initiative seeking to avoid contradictions between Community law and the agreement envisaged does not remove the obligation to determine, prior to the conclusion of the agreement, whether it is capable of affecting the Community rules. The existence of a ‘disconnection clause’ does not guarantee that the provisions of the agreement do not affect Community rules. Indeed, it may even provide an indication that those rules are affected. A mechanism seeking to prevent any conflict in the enforcement of the agreement ‘is not in itself a decisive factor in resolving the question whether the Community has exclusive competence to conclude that agreement or whether competence belongs to the Member States; the answer to that question must be established before the agreement is concluded’.¹⁰²

2.3.2.3 Exclusivity arising out of internal Community legislative acts Internal Community legislative acts quite often grant the Community the competence to enter into international agreements on the area in question. In Opinion 1/94, the Court held that ‘[w]henever the Community 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, it acquires exclusive external competence in the spheres covered by those acts’.¹⁰³ Does this imply that any competence granted in the same way will automatically be exclusive? Although the above statement does sound rather sweeping, there must be one limitation implied in it: the terms of the Treaty. An example might be a Treaty provision explicitly mentioning that the Member States will retain

⁹⁹ Similarly: the UK in 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, para 48. ¹⁰⁰ 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, para 130. ¹⁰¹ See eg Case C-467/98 Commission v Denmark [2002] ECR I-9519, paras 101 and 105. ¹⁰² 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, paras 129–130; regarding the new Lugano Convention: ibid, paras 154–161. ¹⁰³ Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267, para 95; see also Case C-467/98 Commission v Denmark [2002] ECR I-9519, para 83; Case C-476/98 Commission v Germany [2002] ECR I-9855, para 109.

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their competence to enter into international agreements in the relevant area.¹⁰⁴ A second—perhaps rather obvious—limitation should be that exclusive external competence can only arise when this clearly follows from an interpretation of the relevant internal measure, starting with an analysis of the exact wording.¹⁰⁵

2.3.2.4 Exclusivity arising out of the fact that the internal and external aspects of the policy area can only be exercised eff ectively together In its submissions for Opinion 1/94, the Commission argued that implied external competence must necessarily be exclusive. It referred to Opinion 1/76 Draft Agreement establishing a European laying-up fund for inland waterway vessels¹⁰⁶ and argued that the circumstances in which the Community possesses exclusive external competence are not limited to cases in which use has already been made of internal powers to adopt measures for the attainment of its common policies. The Commission argued that international competence of the Community implicitly flows from any provision of Community law conferring on the institutions internal powers for the purposes of attaining specific objectives. ‘It is enough that the Community’s participation in the international agreement is necessary for the attainment of one of the objectives of the Community.’¹⁰⁷ The Commission was in fact trying to have the Court acknowledge that the Community was not only competent to conclude GATS and TRIPS, but exclusively competent. The Commission put forward two reasons why this would be ‘necessary for the attainment of one of the objectives of the Community’. First, the Commission argued that the coherence of the internal market would be impaired without the Community’s participation in the said agreements. Secondly, the Commission thought that the EC could not allow itself to ‘remain inactive on the international stage’ through non-participation in the WTO Agreement¹⁰⁸ and its annexes.¹⁰⁹ ¹⁰⁴ eg Arts 174(4), para 2 EC (environment) and 181, para 2 EC (development cooperation); cf I MacLeod, ID Hendry, and S Hyett, The External Relations of the European Communities: A Manual of Law and Practice (1996) 60; D McGoldrick, The International Relations Law of the European Union (1997) 71; D Verwey, The European Community, the European Union and the International Law of Treaties (2004) 32. ¹⁰⁵ I MacLeod, ID Hendry, and S Hyett, The External Relations of the European Communities: A Manual of Law and Practice (1996) 60; D McGoldrick, The International Relations Law of the European Union (1997) 71; D O’Keeffe, ‘Exclusive, Concurrent and Shared Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 188. It seems hardly necessary to point out the many problems that such an interpretative exercise may involve. There is an abundant literature on interpretation and the difficulties involved with it. Two examples from the jurisprudential canon are L Fuller, The Morality of Law (1969) 81–91 and R Dworkin, Law’s Empire (1986) 45–86. ¹⁰⁶ [1977] ECR 741. ¹⁰⁷ Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267, para 82. ¹⁰⁸ Agreement Establishing the World Trade Organization, 1867 UNTS 154; 33 ILM 1144 (1994). ¹⁰⁹ Ibid, para 83.

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The Court made short shrift of this reasoning. It pointed out that Opinion 1/76 related to quite a different issue from the one arising from GATS. Opinion 1/76 concerned what the Court described as ‘rationalization of the economic situation in the inland waterways sector in the Rhine and Moselle basins, and throughout all the Netherlands inland waterways and the German inland waterways linked to the Rhine basin, by elimination of short-term overcapacity’.¹¹⁰ Given that vessels from Switzerland traditionally participate in navigation on these waterways, it was hard to imagine how that objective could be achieved solely by the establishment of autonomous Community common rules. It was therefore necessary, as the Court had held in Opinion 1/76,¹¹¹ to bring Switzerland into the scheme by means of an international agreement. The Court then invoked its case-law on fisheries¹¹² and pointed out that any restrictions on fishing on the high seas by vessels originating from a Member State would hardly be effective if the same restrictions did not apply to vessels originating from a non-Member State bordering on the same seas. In such circumstances, the Court pointed out, it is understandable that external powers may be exercised, and thus become exclusive, without any internal legislation having first been adopted.¹¹³ The Court held that this was, however, not the situation in the sphere of application of GATS. The attainment of freedom of establishment and freedom to provide services for nationals of the Member States is not inextricably linked to the treatment to be afforded in the Community to nationals of non-Member States or in non-Member States to nationals of Member States of the Community.¹¹⁴ The Court similarly rejected the application of the parallelism approach to TRIPS.¹¹⁵ The Court seems to regard the distinction between two types of envisaged international agreements as crucially important. On the one hand, there are the rare factual constellations in which the objectives of Community competences cannot be achieved without including third countries through international agreements into the binding legal framework regulating the situation. These give rise to exclusive competence for the Community to conclude these agreements. On the other hand, there are many situations in which the Community wishes ¹¹⁰ Ibid, para 85. ¹¹¹ Opinion 1/76 Draft Agreement establishing a European laying-up fund for inland waterway vessels [1977] ECR 741, para 2. ¹¹² Why the Court thought this necessary is unclear: see P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 78. ¹¹³ Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267, para 85; cf 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, para 115, in which, however, the Court omitted a reference to the need for an ‘inextricable link’ found in Opinion 1/94, para 86: see M Cremona, ‘Community Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 321. ¹¹⁴ Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267, para 86. ¹¹⁵ Ibid, para 100.

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to extend the scope of its internal regulative programme outside its borders by concluding international agreements with third states, thereby furthering, on the external front, internal legislative goals that could arguably have been sufficiently attained with internal legislation only. The Community does not acquire exclusive external competence in those situations. This is what Opinion 2/92 Competence of the Community or one of its institutions to participate in the Third Revised Decision of the OECD on national treatment seemed to say:¹¹⁶ It is true that, as the Court stated in Opinion 1/76, the external competence based on the Community’s internal powers may be exercised, and thus become exclusive, without any internal legislation having first been adopted. However, this relates to a situation where the conclusion of an international agreement is necessary in order to achieve Treaty objectives which cannot be attained by the adoption of autonomous rules.

The conclusion could therefore be that the Community will acquire exclusive external competence on the basis of Opinion 1/76 only in situations with a constellation of facts very close to the one in that Opinion.¹¹⁷ The question remains, however, whether the Court in Opinion 1/76 in fact said anything at all regarding the exclusivity of the Community’s competence. After establishing that the Community could acquire implied external competence even in the absence of prior internal Community legislation,¹¹⁸ the Court addressed what it described as ‘a special problem’: the draft Agreement provided for the participation as contracting partners not only of the Community and Switzerland, but also of six of the Member States. The latter were all parties either to the Rhine Navigation Convention¹¹⁹ or the Moselle Canalisation Convention.¹²⁰ They had undertaken to amend these two conventions as necessary for the implementation of the draft Agreement, and the Court considered that this undertaking, given in view of Article 307, paragraph 2 EC,¹²¹ explained and justified the participation in the Agreement, together with the Community, of the six Member States.¹²² This had to be considered as ¹¹⁶ Opinion 2/92 Competence of the Community or one of its institutions to participate in the Third Revised Decision of the OECD on national treatment [1995] ECR I-521, para 32. ¹¹⁷ D O’Keeffe, ‘Exclusive, Concurrent and Shared Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 190. ¹¹⁸ Opinion 1/76 Draft Agreement establishing a European laying-up fund for inland waterway vessels [1977] ECR 741, paras 3–4. ¹¹⁹ Revised Convention for Rhine Navigation of 17 October 1868 as set out in the text of 20 November 1963. ¹²⁰ Convention between the French Republic, the Federal Republic of Germany and the Grand Duchy of Luxembourg concerning the Canalisation of the Moselle, 27 October 1956 (modified 28 November 1974). ¹²¹ Further: K Lenaerts and E De Smijter, ‘The European Union as an Actor under International Law’ in P Eeckhout and T Tridimas (eds) (1999–2000) 19 YEL 114–122; also on Art 307 EC: P Koutrakos, EU International Relations Law (2006) 301–328. ¹²² Opinion 1/76 Draft Agreement establishing a European laying-up fund for inland waterway vessels [1977] ECR 741, paras 6–7.

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solely for removing the obstacles that certain provisions of the Rhine Navigation Convention and Moselle Canalisation Convention presented to the operation of the scheme laid down by the Agreement. Moreover, the legal effects of the Agreement, except for the special undertaking, resulted—in accordance with Article 300(7) EC—solely from the conclusion of the latter by the Community. The Court concluded that the participation of the six Member States was ‘not such as to encroach on the external power of the Community’, and that there was ‘therefore no occasion to conclude that this aspect of the draft Agreement is incompatible with the Treaty’.¹²³ There has been much debate as to whether this implied that the Community’s competence to conclude the Agreement was exclusive, given that the Court seemed to require a special justification for the participation of the Member States. It is, however, very unlikely that this is what the Court intended.¹²⁴ The Court did not allude to the nature of the competence to conclude the Agreement, because this was not at issue. It had been established that the Community was competent to conclude the agreement and the question now was whether the participation of the six Member States, as well as the Community would represent an encroachment on the Community’s external competence. This is different from whether the Community was exclusively competent to conclude the agreement with Switzerland. The Court does seem to say that the Community’s external competence would have been affected, had the Member States involved not undertaken to amend certain provisions of the Rhine Navigation Convention and Moselle Canalisation Convention. The decision to adopt the mechanism by way of an internal Community instrument plus an agreement with Switzerland meant that the latter would have to be concluded by the Community. It is therefore unfortunate that the Court in Opinion 1/94¹²⁵ seemed to agree with the Commission’s claim that Opinion 1/76¹²⁶ was about the exclusivity of the Community’s competence, notwithstanding the absence of any reference to exclusivity in the text of the Opinion. In order to enable a scheme such as that at issue in Opinion 1/76 to work effectively, an agreement with non-Member States was necessary. It is, however, unclear why this should imply that the Community’s competence should be exclusive especially given that transport policy on the internal Community front enjoyed no such exclusivity.¹²⁷ ¹²³ Ibid, para 7. ¹²⁴ eg P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 68–69; M Cremona, ‘Community Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 321. ¹²⁵ Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267. ¹²⁶ Opinion 1/76 Draft Agreement establishing a European laying-up fund for inland waterway vessels [1977] ECR 741. ¹²⁷ P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 78; cf P Koutrakos, EU International Relations Law (2006) 94–95.

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The Court had the chance to clarify these matters in the Open Skies cases. One of the arguments advanced by the Commission rested on an analysis of the Court’s statements in Opinion 1/76 and Opinion 1/94. The Commission argued that, in accordance with Opinion 1/76, Opinion 1/94 and Opinion 2/92, the Community has exclusive competence to conclude international agreements, even in the absence of pre-existing internal Community provisions in the area concerned, where the conclusion of such agreements is necessary in order to attain the objectives of the Treaty in that area, viz when such objectives cannot be attained merely by introducing autonomous Community rules.¹²⁸ The Commission argued that in the field of air transport, purely internal measures could not be effective, given the international nature of the activities carried on and the impossibility of separating the internal and external markets both economically and legally. Furthermore, the ‘discrimination, the distortions of competition and the disturbance of the Community market’ resulting from the bilateral open skies agreements concluded by the Member States in question prove, according to the Commission, that the aims pursued by the common air transport policy cannot be attained without the conclusion of an agreement between the Community and the USA.¹²⁹ Advocate General Tizzano disagreed. He rightly argued that the conclusions drawn by the Commission from the Court’s case-law were rooted in a mistaken belief that in affirming the Community’s competence in the situations referred to in Opinion 1/76 the Court also held this competence to be automatically exclusive. All the Court actually affirmed, the Advocate General pointed out, is that in those situations, despite the absence of any express provision in Community law, the necessity for an agreement in a given field may enable the Community to affirm its own external competence. However, it can only be the specific recognition of such necessity, viz the actual exercise of that competence, which will render it exclusive. The reasons for this are the same as those for which this type of competence usually comes into existence, namely because the assumption of international obligations in the same field by the Member States could jeopardize the attainment of the objective of the Community for which the agreement was in fact considered necessary.¹³⁰ The Court did not follow Advocate General Tizzano’s quite clear treatment of the exclusive implied external competences doctrine. Contrary to the Advocate General, the Court stood by its interpretation of Opinion 1/76 as an authority for the exclusivity of the Community’s external competence, while distinguishing the particular circumstances surrounding the open skies agreements from those at issue in Opinion 1/76.¹³¹ The Court held that the EC Treaty does not prevent ¹²⁸ Case C-476/98 Commission v Germany [2002] ECR I-9855, para 71. ¹²⁹ Ibid, paras 72–73. ¹³⁰ Opinion of Tizzano AG in the Open Skies cases, point 49. ¹³¹ Opinion 1/76 Draft Agreement establishing a European laying-up fund for inland waterway vessels [1977] ECR 741.

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the institutions from arranging, through internal Community rules, concerted action in relation to the United States of America. Furthermore, the EC Treaty equally does not prevent the institutions from prescribing the 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. The Court 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.¹³² This was confirmed, the Court held, 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. 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, therefore, in casu no question of an internal competence that can only be effectively exercised at the same time as the corresponding external competence, and that would render such a competence exclusive in accordance with the Court’s reading of Opinion 1/76.¹³³ The Court thus did not dismiss the Commission’s argument that implied external competences are automatically exclusive when there is an inextricable link between Community objectives and external action by pointing out that the Community had not yet exercised its internal competence at the relevant time, as the Advocate General had done. Instead, the Court tried to establish whether such exclusivity was necessary. It would seem to follow a contrario that the Community acquires exclusive implied external competences in case of an inextricable link. However, in Open Skies the Court did substantially restrict the scope of such competences. After looking at the Court’s reasoning, it becomes difficult to think of a situation in which internal competences cannot possibly be exercised solely by internal Community legislation, but must be supported by the conclusion of international agreements in the same field. It is not even clear whether the factual circumstances of Opinion 1/76 would qualify. The Council could have arranged for concerted action towards Switzerland and could have prescribed the Member States what to do in their relations with Switzerland, both by establishing internal Community legislation.¹³⁴ This seems to be confirmed in practice, as examples of ¹³² Case C-476/98 Commission v Germany [2002] ECR I-9855, para 85; 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, para 123. ¹³³ Case C-476/98 Commission v Germany [2002] ECR I-9855, paras 86–89. ¹³⁴ P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 91; similarly, pointing out that it would have been possible to conclude an agreement between the Member States and Switzerland: AA Dashwood and J Heliskoski, ‘The Classic Authorities Revisited’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 13; J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the

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this type of exclusive competence are so scarce that the issue is ‘not a particularly live’ one.¹³⁵

2.3.2.5 General legal bases in the EC Treaty and exclusive external competence External competence for the Community can arise from such general legal bases as Articles 94, 95, and 308 EC. The Court had the chance to clarify the nature of these competences with regard to Articles 95 and 308 EC in Opinion 1/94, in response to the Commission’s allegation that these provisions could serve as a legal basis for an exclusive Community competence to conclude GATS.¹³⁶ With regard to Article 95 EC, the Court held that where harmonizing powers have been exercised, the adopted harmonization measures may limit or remove the freedom of the Member States to negotiate with non-Member States. However, an internal power to harmonize that has not been exercised in a specific field cannot confer exclusive external competence in that field on the Community. Article 308 EC cannot in itself vest exclusive competence in the Community at international level. The principle that internal competence can give rise to exclusive external competence only if it is exercised, except where internal powers can only be effectively exercised at the same time as external powers,¹³⁷ applies a fortiori to Article 308 EC.¹³⁸ This clear limitation imposed by the Court on the otherwise wide ambit of Article 308 EC seems a fair result of a balancing act between the need for the Community to be able to act effectively in absence of an explicit legal basis on the one hand and the strictures of the principle of conferral on the other.¹³⁹ These general legal bases have been used to take external measures in the fields of environmental protection, development cooperation, and economic, financial, and technical cooperation with third countries.¹⁴⁰ These measures have, however, been taken before internal legislation on these matters existed. The question remains whether, after Opinion 1/94 and Opinion 2/92, this would still be possible. The questions of the existence and the nature of the Community’s external competence seem to be somewhat blurred. Does the Court’s repeated use of the words European Community and its Member States (2001) 43; P Koutrakos, EU International Relations Law (2006) 95. ¹³⁵ P Eeckhout, ‘General Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 275–317. ¹³⁶ Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267, para 87. ¹³⁷ cf Opinion 2/92 Competence of the Community or one of its institutions to participate in the Third Revised Decision of the OECD on national treatment [1995] ECR I-521, para 36. ¹³⁸ Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267, para 89. ¹³⁹ Similarly: D O’Keeffe, ‘Exclusive, Concurrent and Shared Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 191. ¹⁴⁰ See ch 1.4.

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‘exclusive external competence’ signify that, absent prior internal legislation, the Community will not be exclusively competent to engage in external action in the areas in question? Alternatively, did the Court in fact mean that there could not be any external competence without prior internal legislation, let alone exclusive competence?¹⁴¹ The former seems more plausible.

2.3.2.6 Eff ects of exclusivity The exclusivity of the Community’s external competence has two main consequences, which are really two sides of the same coin.¹⁴² First, when the external competence in a certain area is exclusive, the Member States, as the Court put it in the ERTA judgment, ‘no longer have the right, acting individually or even collectively, to undertake obligations with third countries’.¹⁴³ The Court also referred to Article 10 EC, enshrining the principle of loyalty, and concluded that it would be impossible for the Member States operating outside the institutional framework of the Community to assume responsibilities that might affect or alter the scope of Community rules that have been promulgated for the attainment of Treaty objectives.¹⁴⁴ Secondly, the Court in Ruling 1/78 Draft Convention of the International Atomic Energy Agency on the Physical Protection of Nuclear Materials, Facilities and Transports pointed out that when external Community competence is exclusive, ‘[t]he Member States whether acting individually or collectively, are no longer able to impose on the Community obligations which impose conditions on the exercise of prerogatives which thenceforth belong to the Community and which therefore no longer fall within the field of national sovereignty’.¹⁴⁵ In other words, the Member States must not attempt to constrain the Community’s exercise of its exclusive competence and must cooperate loyally with it in order to facilitate such an exercise.¹⁴⁶ It should be emphasized that the Member States retain capacity both under national and international law. Exclusive Community competences simply ¹⁴¹ This seems to be the conclusion of D O’Keeffe, ‘Exclusive, Concurrent and Shared Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 191–192. I MacLeod, ID Hendry, and S Hyett, The External Relations of the European Communities: A Manual of Law and Practice (1996) 55 leave the question open. ¹⁴² cf I MacLeod, ID Hendry, and S Hyett, The External Relations of the European Communities: A Manual of Law and Practice (1996) 61–63; D O’Keeffe, ‘Exclusive, Concurrent and Shared Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 192. Exclusivity also implies the inapplicability of the principle of subsidiarity (Art 5, para 2 EC); further: A Von Bogdandy and J Bast, ‘The European Union’s Vertical Order of Competences: The Current Law and Proposals for its Reform’ (2002) 39 CML Rev 242. ¹⁴³ Case 22/70 Commission v Council [1971] ECR 263, para 17. ¹⁴⁴ Ibid, para 22; further: Opinion 1/75 [Draft Understanding on a Local Cost Standard drawn up under the auspices of the OECD] [1975] ECR 1355, 1364. ¹⁴⁵ Ruling 1/78 Draft Convention of the International Atomic Energy Agency on the Physical Protection of Nuclear Materials, Facilities and Transports [1978] ECR 2151, para 32. ¹⁴⁶ cf ibid, paras 33 and 22; Joined Cases 3, 4, and 6/76, Cornelis Kramer and others [1976] ECR 1279, paras 44–45.

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require them not to act autonomously. Community law can, however, authorize the Member States to act jointly on the international plane even within exclusive external Community competences. Such a temporary authorization was recognized by the Court of Justice in the Kramer judgment. The Court ruled that Member States participating in the North-East Atlantic Fisheries Convention¹⁴⁷ and in other similar agreements were under a duty not only to refrain from entering into any commitment that could hinder the Community in carrying out the task entrusted to it, but also to proceed by common action within the Fisheries Commission. The Member States were under a duty to use all the political and legal means at their disposal in order to ensure the participation of the Community in the Convention and in other similar agreements.¹⁴⁸ This authority of the Member States was, however, only transitional and expired as soon as the relevant deadlines had passed. Thereafter the Member States could only act as agents of the Community and after having been authorized to do so by the Commission.¹⁴⁹ Apart from such transitional possibilities, the Member States are also allowed to take external action jointly even in the presence of exclusive external Community competence, when such action would be necessary because the Community is unable to exercise its competence.¹⁵⁰ Thus in Opinion 2/91, the Court held that while under the Constitution of the International Labour Organisation, the Community could not itself conclude ILO Convention No 170, its external competence could, if necessary, ‘be exercised through the medium of the Member States acting jointly in the Community’s interest’.¹⁵¹ It has been suggested that the Open Skies judgments could be read as a contrario allowing Member States to be authorized by the Community to act unilaterally as well.¹⁵² The Member States had introduced certain clauses in the open skies agreements, which were found to be contrary to Community law because they were ‘not authorised to enter into such a commitment’ on their own, even if the substance of that commitment did not conflict with Community law.¹⁵³ If this would mean that the Member States could act individually when authorized to do so by the Community, that would bring the legal regime of implied closer to that of express external competences. Indeed, with regard to the CCP, the Community can allow Member States by exception to deviate from Community rules.¹⁵⁴ Such ¹⁴⁷ 24 January 1959, 486 UNTS 157, replaced by the Convention on Future Multilateral Co-operation in the North East Atlantic Fisheries, 18 November 1980, 285 UNTS 129; OJ 1981 L 227/21. ¹⁴⁸ Joined Cases 3, 4, and 6/76, Cornelis Kramer and others [1976] ECR 1279, paras 44–45. ¹⁴⁹ Case 804/79 Commission v United Kingdom [1981] ECR 1045, paras 27–30. ¹⁵⁰ P Koutrakos, EU International Relations Law (2006) 128. ¹⁵¹ Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work [1993] ECR I-1061, para 5. ¹⁵² P Koutrakos, EU International Relations Law (2006) 128. ¹⁵³ Case C-476/98 Commission v Germany [2002] ECR I-9855, para 127. ¹⁵⁴ Case 41/76 Suzanne Criel, née Donckerwolcke and Henri Schou v Procureur de la République au tribunal de grande instance de Lille and Director General of Customs [1976] ECR 1921, para

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derogations would be subject to the jurisdiction of the Court of Justice, and as such this possibility for the Member States is equally an assertion by the Court of its pre-eminent role in the Community’s external relations.¹⁵⁵ The fact that the Member States can still act internationally in areas of exclusive Community competence if authorized to do so seems to make it clear that they do not lose their competences under international law. In cases of a priori exclusivity, the Member States can only act when permitted to do so by the Commission, while under the ERTA doctrine they can only act as trustees of the Community if the latter is unable to act.

2.3.3 Non-exclusivity ‘With regard to development aid to the ACP States, there is nothing in the Treaty, or in provisions adopted by the Community institutions pursuant to the Treaty, which points to the conclusion that the Community’s competence is exclusive. In the absence of any indication to the contrary, it can be accepted that the Community and the Member States share competence in that field.’¹⁵⁶ As the italicized sentence indicates, the Community’s competence in external matters should be presumed to be non-exclusive, unless there are clear indications to the contrary. Passages of Opinion 1/94 seem to point in the same direction:¹⁵⁷ [T]he Community’s exclusive external competence does not automatically flow from its power to lay down rules at internal level . . . [T]he Member States, whether acting individually or collectively, only lose their right to assume obligations with non-member countries as and when common rules which could be affected by those obligations come into being. Only in so far as common rules have been established at internal level does the external competence of the Community become exclusive.

Non-exclusive external competence has been recognized to exist by the Court:¹⁵⁸ (i) pending exercise of Community competence; (ii) flowing from the legal basis in the EC Treaty; (iii) on the basis of Community minimum standards; (iv) in areas where Community and Member State competence can co-exist. 32; see further M Cremona, ‘Community Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 324; cf P Eeckhout, ‘General Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 279–280, who wonders whether this approach could be used more generally in Community external relations. ¹⁵⁵ P Koutrakos, EU International Relations Law (2006) 128. ¹⁵⁶ Opinion of Jacobs AG in Case C-316/91 European Parliament v Council [1994] ECR I-625, point 40 (emphasis added). ¹⁵⁷ Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267, para 77. ¹⁵⁸ cf a similar categorization in I MacLeod, ID Hendry, and S Hyett, The External Relations of the European Communities: A Manual of Law and Practice (1996) 63–67.

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2.3.3.1 Non-exclusive competence pending exercise of Community competence This is the category of ‘shared’ external competences in accordance with the terminology that would be introduced by the Treaty on the Functioning of the European Union.¹⁵⁹ Member States may share external competences with the Community, where the Community has not yet fully exercised its competence. Transport policy is a good example of this. In the ERTA judgment, the Court held that the Member States are prohibited from entering into agreements with third countries that could affect common rules only ‘as and when such common rules come into being’.¹⁶⁰ In Opinion 1/94, the Court held that in the field of transport, the Community’s exclusive external competence does not automatically flow from its power to lay down rules at internal level. It repeated that the Member States, whether acting individually or collectively, only lose their right to assume obligations with non-Member States as and when common rules that could be affected by those obligations come into being. Only insofar as common rules have been established internally does the external competence of the Community become exclusive. The Court concluded that not all transport matters had already been covered by common rules.¹⁶¹ Thus, where competence is shared, it remains non-exclusive unless and until the Community has acted.

2.3.3.2 Non-exclusive competence flowing from the legal basis for external action in the Treaty Some EC Treaty provisions explicitly provide for external competence in the area in question to be parallel between the Community and the Member States. Such a provision mostly either grants the Community a competence to enter into international agreements or confirms it with regard to the Member States and this is either preceded or followed by a formula to the effect that this is without prejudice to the external competences of either the Member States or the Community respectively. An important example¹⁶² is Article 181 EC on development cooperation, where it is stated that the Community and the Member States, each within their respective spheres of competence, shall cooperate with third countries and with the competent international organizations. The arrangements for Community cooperation may be the subject of agreements between the Community and the third parties concerned, which are negotiated and concluded in accordance with Article 300 EC.¹⁶³ However, Article 181 EC ends ¹⁵⁹ See Art 2(2) TFEU. ¹⁶⁰ Case 22/70 Commission v Council [1971] ECR 263, paras 17–18. ¹⁶¹ Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267, para 77. ¹⁶² cf Art 111(5) EC; Art 174(4) EC. ¹⁶³ ch 3.3.

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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’. Statements to that effect could already be found in the Court’s case-law prior to the Treaty of Maastricht, which inserted the provisions on development cooperation into the EC Treaty. In the Bangladesh judgment, the Court had made it clear that ‘the Community does not have exclusive competence in the field of humanitarian aid, and that consequently the Member States are not precluded from exercising their competence in that regard collectively in the Council or outside it’.¹⁶⁴ Similarly, in EDF, the Court analysed the division of competences between the Community and the Member States in the field of development aid and concluded that ‘[t]he Community’s competence in that field is not exclusive. The Member States are accordingly entitled to enter into commitments themselves vis-à-vis non-member States, either collectively or individually, or even jointly with the Community.’¹⁶⁵ The Court added that this conclusion was supported by Article 180 EC, newly added by the Treaty of Maastricht, which provides for the Community and the Member States to coordinate their policies on development cooperation and to consult each other on their aid programmes and for the possibility of joint action.¹⁶⁶ There has been some debate as to whether Article 133(5) EC, as amended by the Treaty of Nice, would exclude the operation of the ERTA doctrine and effectively establish a parallel competence for the Community and the Member States. It guarantees the Member States the right ‘to maintain and conclude agreements with third countries or international organisations in so far as such agreements comply with Community law and other relevant international agreements’. Cremona understands the provision as preserving Member State external competence ‘whatever actions are taken at Community level, internally or externally’.¹⁶⁷ ¹⁶⁴ Joined Cases C-181/91 and C-249/91 European Parliament v Council and Commission [1993] ECR I-3685, para 16. ¹⁶⁵ Case C-316/91 European Parliament v Council [1994] ECR I-625, para 26. ¹⁶⁶ Ibid, para 27. As noted by D O’Keeffe, ‘Exclusive, Concurrent and Shared Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 194, it is remarkable that the Court did not refer to Art 181 EC; see also Declaration on Articles 109, 130r and 130y of the Treaty establishing the European Community, annexed to the Final Act of the Treaty on European Union [1992] OJ C191/1, declaring that these Articles (now, after amendment, Articles 111, 174, and 181 EC) ‘do not affect the principles resulting from the judgment handed down by the Court of Justice in the AETR case’; on the unclear legal status of this declaration: P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 111. ¹⁶⁷ M Cremona, ‘The External Dimension of the Single Market: Building (on) the Foundations’ in C Barnard and J Scott (eds), The Law of the Single Market—Unpacking the Premises (2002) 379; cf CW Herrmann, ‘Common Commercial Policy After Nice: Sisyphus Would Have Done a Better Job’ (2002) 39 CML Rev 19–20, who also argues for the non-applicability of the ERTA principle, but on different grounds.

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Krenzler and Pitschas, on the other hand, argue that the fact that the Member States’ international agreements have to comply with Community law indicates that the ERTA doctrine remains applicable.¹⁶⁸ However, the applicability of the ERTA doctrine cannot be deduced from the requirement that agreements concluded by the Member States should comply with Community law. As discussed above,¹⁶⁹ the ERTA doctrine applies regardless of whether the agreement in question complies with Community law. The implication of the Member States retaining their external competence as long as the international agreements concluded by them comply with Community law thus must be that the ERTA doctrine as traditionally understood does not apply. Holdgaard deduces from the Open Skies judgments that there may be a more general doubt about the applicability of the ERTA doctrine to all areas of Community competence.¹⁷⁰ After setting out the doctrine, the Court in the Open Skies judgments held that it was appropriate to ask whether it also applied to measures adopted on the basis of Article 80(2) EC, ‘which confers upon the Council the power to decide whether, to what extent and by what procedure appropriate provisions may be laid down for air transport, including, therefore, for its external aspect’.¹⁷¹ The Court held that if the Member States were free to enter into international commitments affecting the common rules adopted on the basis of Article 80(2) EC, this would jeopardize the attainment of the objective pursued by those rules thus preventing the Community from fulfilling its task in the defence of the common interest. The Court concluded that its findings in the ERTA case also apply where, as in this case, the Council had adopted common rules on the basis of Article 80(2) EC.¹⁷² It may strike one as slightly odd that the Court explicitly considered whether the ERTA doctrine applied to measures adopted on the basis of Article 80(2) EC instead of just examining whether the relevant common rules could be affected. However, deducing from this that the Court has introduced a sectoral approach with regard to the scope of application of the ERTA doctrine seems rather farfetched. In fact, it appears that this interpretation has become untenable after Opinion 1/03. The Court repeated its statement from Opinion 2/91 that ‘in all the areas corresponding to the objectives of the Treaty, Article 10 EC requires Member States to facilitate the achievement of the Community’s tasks and to abstain from any measure which could jeopardize the attainment of the objectives of the Treaty’.¹⁷³ It held that the legal bases for Community rules are, in ¹⁶⁸ HG Krenzler and C Pitschas, ‘Progress or Stagnation?: The Common Commercial Policy After Nice’ (2001) 6 Eur Foreign Affairs Rev 306–307. ¹⁶⁹ ch 2.3.2.2; see further ch 2.5. ¹⁷⁰ R Holdgaard, ‘The European Community’s Implied External Competence after the Open Skies Cases’ (2003) 8 Eur Foreign Affairs Rev 385–386. ¹⁷¹ Case C-467/98 Commission v Denmark [2002] ECR I-9519, paras 77–78. ¹⁷² Ibid, paras 79–80. ¹⁷³ Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work [1993] ECR I-1061, para 10, cited in Opinion 1/03 Competence of the

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themselves, ‘irrelevant in determining whether an international agreement affects Community rules’. The legal basis of internal legislation is determined by its principal component, whereas the rule that may possibly be affected may be an ancillary component of that legislation. The Court concluded that ‘the purpose of the exclusive competence of the Community is primarily to preserve the effectiveness of Community law and the proper functioning of the systems established by its rules, independently of any limits laid down by the provision of the Treaty on which the institutions base the adoption of such rules’.¹⁷⁴

2.3.3.3 Non-exclusive external competence on the basis of internal Community minimum standards The Court’s broad interpretation of grounds for exclusivity in Opinion 2/91 was nuanced in the Opinion itself, through the concept of minimum requirements. This involves the Community harmonizing a certain policy area on the basis of minimum standards, while leaving the Member States free to adopt more stringent measures. The Court ruled that if the Community decides to adopt rules that are less stringent than those contained in ILO Convention No 170, the Member States have two options: they can either rely on what is now Article 137(4) EC to adopt more stringent measures for the protection of working conditions, or they can apply for that purpose the provisions of ILO Convention No 170. If, however, the Community decides to adopt more stringent measures than those contained in ILO Convention No 170, ‘there is nothing to prevent the full application of Community law by the Member States under Article 19(8) of the ILO Constitution’, which allows Members of the ILO to adopt more stringent measures than those set out in the ILO conventions and recommendations.¹⁷⁵ The Commission had argued that it is sometimes difficult to determine whether a specific measure is more favourable to workers than another. Such uncertainty might tempt the Member States not to adopt Community measures in order to avoid the possibility of being in breach of an ILO convention. This attitude, the Commission argued, risks impairing the development of Community law, and it is therefore only right that the Community itself ought to have exclusive competence to conclude ILO Convention No 170.¹⁷⁶ 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, para 119. ¹⁷⁴ 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, para 131. See also ibid, para 128. ¹⁷⁵ Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work [1993] ECR I-1061, para 18. ¹⁷⁶ Ibid, para 19.

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The Court brushed the Commission’s argument aside, saying that the difficulties referred to by the Commission ‘cannot constitute the basis for exclusive Community competence’.¹⁷⁷ For the same reason, the Court held that exclusive competence could also not be founded on Community provisions adopted on the basis of Article 100 EEC or individual directives based on those provisions, all of which were found to lay down minimum requirements.¹⁷⁸ The policy reasons behind the distinction made by the Court seem sound. If the Community manages to reach agreement on certain standards higher than minimum rules, this should not be undermined by autonomous action taken by the Member States. If, however, the Community has only been able to reach agreement on a set of standards forming the lowest common denominator, Member States should remain free to adopt higher standards. Such an approach has the ability to spark a ‘race to the top’, rather than the much-dreaded ‘race to the bottom’.¹⁷⁹ The Court has recently confirmed its approach with regard to minimum standards. In the Mox Plant judgment, the Court referred to the declaration of competence made by the Community upon acceding to the United Nations Convention on the Law of the Sea (UNCLOS):¹⁸⁰ ‘When Community rules exist but are not affected, in particular in cases of Community provisions establishing only minimum standards, the Member States have competence, without prejudice to the competence of the Community to act in this field. Otherwise competence rests with the Members States.’¹⁸¹ Consequently, the declaration in question confirmed that a transfer of areas of shared competence took place within the framework of the Convention, and without any of the Community rules concerned being affected, within the terms of the principle set out in the ERTA judgment.¹⁸² The Court held in Opinion 1/03 that the fact that both the Community rules and the international agreement in question lay down minimum standards ‘may justify the conclusion that the Community rules are not affected, even if the ¹⁷⁷ Ibid, para 20. Contrast with 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, para 126, where the Court took into account the future development of Community law: P Eeckhout, ‘General Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 278, fn 9. ¹⁷⁸ Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work [1993] ECR I-1061, para 21. ¹⁷⁹ D McGoldrick, The International Relations Law of the European Union (1997) 76–77. ¹⁸⁰ 10 December 1982, 1833 UNTS 3; 21 ILM 1261 (1982). ¹⁸¹ Case C-459/03 Commission v Ireland [2006] ECR I-4635, paras 8 and 104. On this declaration: R Churchill and J Scott, ‘The Mox Plant Litigation: The First Half-Life’ (2004) 53 ICLQ 664–666, who argue that it is ‘genuinely ambiguous’; compare the Opinion of Poiares Maduro AG in Case C-459/03 Commission v Ireland [2006] ECR I-4635, point 36, holding that the declaration ‘may suffer from a lack of clarity and elegance, but it does not provide authority for the view that the Community merely exercised its exclusive external competence in the [relevant] area . . . ’. ¹⁸² Case C-459/03 Commission v Ireland [2006] ECR I-4635, para 105.

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Community rules and the provisions of the agreement cover the same area’.¹⁸³ The requirement that both the Community rules and the international agreement in question lay down minimum standards is necessary in order not to inhibit the development of Community law. If the international agreement lays down an absolute standard, and the Community subsequently decides to raise its minimum standards above the absolute standard of the agreement, a conflict may arise with the inevitable consequences for the international responsibility of the Community.

2.3.3.4 Non-exclusive competence in areas where Community and Member State competence can co-exist In certain situations, international agreements cover areas that will naturally fall both within the competences of the Community and the Member States without the competence of one excluding the competence of the other. Schermers and Blokker cite the example of an international organization acceding to a copyright convention with the sole purpose of protecting its own publications.¹⁸⁴ Another example would be the Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations.¹⁸⁵ Both the Community and the Member States should in theory be able to accede to such an international agreement without in any way impinging on the competence of the other one.¹⁸⁶

2.4 Categories of Competence in the Treaty on the Functioning of the European Union The Treaty of Lisbon would introduce an Article 2 TFEU,¹⁸⁷ which lists the categories of Union competences. Of the categories there listed, two seem relevant for ‘first pillar’ external relations: • exclusive Union competences; • competences shared between the Member States and the Union. ¹⁸³ 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, paras 123 and 127. ¹⁸⁴ HG Schermers and NM Blokker, International Institutional Law: Unity Within Diversity (2003) 1119, para 1752. ¹⁸⁵ 25 ILM 543 (1986). ¹⁸⁶ cf I MacLeod, ID Hendry, and S Hyett, The External Relations of the European Communities: A Manual of Law and Practice (1996) 66, fn 157, who propose two criteria for participation of the Community in such agreements: (i) that the international agreement in question establishes general norms of international law binding on subjects of international law; (ii) that the Community exercises powers that are affected by the norms established by the international agreement in question. ¹⁸⁷ cf Art I-12 TC.

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2.4.1 Exclusive competences Article 3(1)(a) TFEU declares the original core of the Community, the customs union, to be an exclusive competence of the Union.¹⁸⁸ The CCP is similarly listed among the Union’s exclusive competences.¹⁸⁹ The other exclusive competences listed are 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 and the conservation of marine biological resources under the CFP.¹⁹⁰ Given that these three have important foreign policy aspects, the external dimensions of these policies belong to the exclusive competence of the Union. The Treaty on the Functioning of the European Union also attempts to codify the body of case-law on the nature of the Community’s external competence. Article 3(2) TFEU provides that the Union will also have exclusive competence for the conclusion of an international agreement in three circumstances: • 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 • insofar as its conclusion may affect common rules or alter their scope. The first of these might seem uncontroversial, but closer inspection reveals its potentially problematic character.¹⁹¹ Does the wording mean that any international agreement, the conclusion of which is provided for in a legislative act of the Union, would automatically give the Union exclusive competence for its conclusion, even if the legislative act does not provide explicitly for this competence to be exclusive? Surely, this cannot count in the case of an agreement pursuant to a legislative act on development cooperation and humanitarian aid, for which the Treaty on the Functioning of the European Union explicitly provides that the Member States should retain their competence.¹⁹² Moreover, it should be possible for a legislative act of the Union to provide for the conclusion of an international agreement without at the same time excluding the Member States from concluding an agreement in the same area. Problems continue with the second instance of external competence, which is said to arise when the conclusion of an international agreement is ‘necessary to enable the Union to exercise its internal competence’. This should probably be considered as an attempt to codify the principles set out by the Court in Opinion 1/76,¹⁹³ or more precisely, the Court’s interpretation of Opinion 1/76 in Opinion 1/94. In the latter, the Court made clear that the external competence of the Community may become exclusive ¹⁸⁸ Art 3 TFEU is identical to Art I-13 TC. ¹⁸⁹ Art 3(1)(e) TFEU. ¹⁹⁰ Art 3(1)(b), (c), and (d) TFEU. ¹⁹¹ cf on the Constitution: P Craig, EU Administrative Law (2006) 416–417. ¹⁹² Art 4(4) TFEU (see the identical Art I-14(4) TC). ¹⁹³ Opinion 1/76 Draft Agreement establishing a European laying-up fund for inland waterway vessels [1977] ECR 741.

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in the extraordinary circumstance that an internal Community objective cannot possibly be attained by simply enacting autonomous Community rules, but necessarily has to involve third parties through an international agreement.¹⁹⁴ While the phrase ‘necessary to enable the Union to exercise its internal competence’ could be suitably stretched to mean just that, it does seem like a rather inaccurate rendition of the principle put forward by the Court in Opinion 1/94, and reaffirmed in the Open Skies judgments.¹⁹⁵ The CCP is in fact an example of this principle at work. The CCP is the external aspect of the internal market competences of the Union, which clearly belong to the area of shared competences.¹⁹⁶ However, one of the goals of the internal market is the removal of internal border controls and this cannot be effectively achieved without a common external commercial policy. The effective organization of the latter demands the exclusive competence of the Union and hence the exclusion of the Member States.¹⁹⁷ The Treaty on the Functioning of the European Union confirms this and lists the CCP among the Union’s exclusive competences.¹⁹⁸ It is, however, specified that the exercise of the competences within the sphere of the CCP cannot affect the delimitation of competences between the Union and the Member States, nor will it lead to harmonization of the law of the Member States insofar as the Treaties exclude such harmonization.¹⁹⁹ It should be noted that the Treaty on the Functioning of the European Union would extend the scope of the CCP, arguably to cover all matters coming within the ambit of the WTO.²⁰⁰ This has the effect of widening the scope of a priori exclusivity of Union external trade powers, and implies that there will be fewer reasons for mixed agreements, at least in trade policy.²⁰¹ The Union also has exclusive competence to conclude an international agreement insofar as its conclusion may affect common rules or alter their scope. The corresponding provision of the Draft Treaty establishing a Constitution ¹⁹⁴ Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267, para 85. ¹⁹⁵ Case C-466/98 Commission v United Kingdom [2002] ECR I-9427; Case C-467/98 Commission v Denmark [2002] ECR I-9519; Case C-468/98 Commission v Sweden [2002] ECR I-9575; Case C-469/98 Commission v Finland [2002] ECR I-9627; Case C-471/98 Commission v Belgium [2002] ECR I-9681; Case C-472/98 Commission v Luxembourg [2002] ECR I-9741; Case C-475/98 Commission v Austria [2002] ECR I-9797; Case C-476/98 Commission v Germany [2002] ECR I-9855 (as confirmed in Case C-523/04 Commission v Netherlands [2007] ECR I-3267): see ch 2.3.2.4; cf M Cremona, ‘The Draft Constitutional Treaty: External Relations and External Action’ (2003) 40 CML Rev 1362; AA Dashwood, ‘The Relationship Between the Member States and the European Union / European Community’ (2004) 41 CML Rev 372. ¹⁹⁶ Art 4(2)(a) TFEU (see the identical Art I-14(2)(a) TC). ¹⁹⁷ cf M Cremona, ‘The Draft Constitutional Treaty: External Relations and External Action’ (2003) 40 CML Rev 1363. ¹⁹⁸ Art 3(1)(e) TFEU (see the identical Art I-13(1)(e) TC). ¹⁹⁹ Art 207(6) TFEU (cf Art III-315(6) TC). ²⁰⁰ Art 207(1) TFEU (see the identical Art III-315(1) TC); see P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 54–55. ²⁰¹ C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 224.

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for Europe provided that the Union would have exclusive competence to conclude an international agreement when its conclusion ‘affects an internal Union act’.²⁰² The latter phrasing was rightly criticized for being an inaccurate codification of the ERTA principle: it could be read as signifying that the Union would be exclusively competent to conclude an entire international agreement, even if only one of its provisions would affect common rules. Were this to be the case, this would imply the reversal of Opinion 1/94²⁰³ and the impossibility henceforth to operate through ‘mixed agreements’.²⁰⁴ The 2004 IGC seemed to have realized the problematic aspects of this drafting and came up with another formula. It is, however, doubtful whether the redrafting was entirely successful. Under the new wording, while mixed agreements would not be practically impossible, there would arguably be far fewer instances in which recourse to a mixed agreement would be necessary or appropriate.²⁰⁵ Finally, by putting the provision on the exclusive competence to conclude international agreements not in the EU Treaty but in the Treaty on the Functioning of the European Union, the Treaty of Lisbon took away any doubt as to whether it could potentially also apply to the CFSP.²⁰⁶ As is clear from the above, Article 3(2) TFEU is of little use in ex ante clarifying the extent of the Union’s exclusive external competences,²⁰⁷ because the criteria listed appear to be liable to contestation and hence in need of further judicial clarification.²⁰⁸

2.4.2 Shared competences In a number of external policies, both the Community and the Member States can exercise competence alongside each other, and the Treaty on the Functioning of the European Union explicitly confirms this. Development cooperation and humanitarian aid are listed among the shared competences; the Union has the competence to carry out activities and conduct a common policy in those areas.²⁰⁹ However, contrary to the normal rule with regard to shared competences under the Treaty on the Functioning of the European Union,²¹⁰ the possibility for the Community through its actions to prevent the Member States from ²⁰² Art I-12(2) DTC. ²⁰³ Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267. ²⁰⁴ AA Dashwood, ‘The Relationship Between the Member States and the European Union / European Community’ (2004) 41 CML Rev 372. ²⁰⁵ See C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 224–227. ²⁰⁶ Because of its position in the first part of the Constitution, it could possibly have been argued that Art I-13(2) TC should apply to the CFSP as well. ²⁰⁷ Neither was the identical Art I-13(2) TC. ²⁰⁸ cf on the Constitution: P Craig, EU Administrative Law (2006) 418. ²⁰⁹ Art 4(4) TFEU (see the identical Art I-14(4) TC). ²¹⁰ Art 2(2) TFEU (cf Art I-12(2) TC).

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acting independently is explicitly excluded in these two policies.²¹¹ The Treaty on the Functioning of the European Union would thus enact what the Court has decided in its case-law on the parallel character of the Community’s competences with regard to development cooperation and humanitarian aid.²¹²

2.5 Concluding Observations on Primacy and Exclusivity in Community External Relations While both primacy and exclusivity were derived from the principle of loyalty in Article 10 EC, the effect of the two principles is different. Primacy provides a conflict rule for internal policies whereby Community law takes precedence over Member State law in case of conflict and to the extent of that conflict. It does not detract from the legislative capacity of the Member States and even conflict does not render the Member State law non-existent. None the less, it would go too far to argue that it does not matter that incompatible legislation exists as long as it is disapplied. Sometimes an obligation to amend non-compliant Member State legislation does exist, such as in the Merchant Seamen case,²¹³ possibly because of concerns that citizens may be misled if the non-compliant Member State legislation remains unamended. Exclusivity goes further. It provides a confl ict rule predominantly for external policies and imposes an obligation on the Member States not to enter into any international agreements that could affect the Community’s exclusive competences. In other words, it does limit the possibility for law-making by the Member States. They are legally obliged not to exercise their competences to enter into certain international agreements. Th is can be explained by the desire to avoid adverse consequences for the Member States’ international liability in case they conclude an international agreement incompatible with Community law. Such problems may, however, also arise in the case of an evolution of Community common rules. The Member States could block the evolution of Community law by concluding international agreements the subject-matter of which is covered by common rules, thus ‘freezing’ Community law in its state at the moment of the conclusion of the agreement. This explains why even if the intended agreement would be consistent with Community law, the Member States are not allowed to conclude it if it falls under exclusive Community competences through the logic of a priori exclusivity or the ERTA doctrine. The exclusivity analysis with regard ²¹¹ Art 4(4) in fine TFEU (see the identical Art I-14(4) TC). ²¹² Note that Art 4(3) TFEU (and the identical Art I-14(3) TC) similarly declares the Community’s competences with regard to research, technological development, and space to be shared but not subject to the possibility for the Community’s action to prevent the Member States from acting independently, affirming the parallel character of these competences as well. ²¹³ Case 167/73 Commission v France [1974] 359.

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to external competences is thus more rigorous than the primacy analysis with regard to internal competences. This is brought home by the concept of a ‘coherent system’ of rules, the integrity of which is liable to be compromised if Member States exercise their competences autonomously with respect to the agreement in question, as introduced by the Court in Opinion 1/03.²¹⁴ The existence of an international agreement concluded by the Member States autonomously may prejudice the integrity of the system established by Community law. The concept of exclusivity is thus rather more sophisticated than that of primacy.²¹⁵ Does this imply that exclusive Community competences have actually completely been taken away from the Member States? As mentioned above, this does not seem to be the case. The effect of exclusivity is to prevent the Member States from acting internationally in any area of exclusive Community competence unless they do so under EC control. It is, however, crucial that the Member States retain their competence under international law, in order to be able to act internationally for the Community should the latter be prevented from doing so. It is clear from the IN.CO.GE case²¹⁶ that Community law does not purport to disable the Member States from exercising competences available to them under their constitution. It only limits the exercise of the Member States’ competences.

²¹⁴ See 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, paras 122–133. ²¹⁵ See AA Dashwood, ‘Article 47 and the relationship between first and second pillar competences’, in AA Dashwood and M Maresceau (eds), Law and Practice of EU External Relations: Salient Features of a Changing Landscape (2008). ²¹⁶ Joined cases C-10/97 to C-22/97 Ministero delle Finanze v IN.CO.GE.’90 Srl, Idelgard Srl, Iris ‘90 Srl, Camed Srl, Pomezia Progetti Appalti Srl (PPA), Edilcam Srl, A. Cecchini & C. Srl, EMO Srl, Emoda Srl, Sappesi Srl, Ing. Luigi Martini Srl, Giacomo Srl and Mafar Srl [1998] ECR I-6307; see ch 2.2.

3 The Community Method 3.1 Introduction The Community method of decision-making is characterized by (i) the central role of the Commission in formulating proposals; (ii) qualified majority voting (QMV) in the Council as a rule; (iii) involvement of the European Parliament with varying intensity depending on the decision-making procedure; and (iv) the role of the Court in ensuring judicial accountability.¹ This chapter focuses on the particularities of the Community method within EC external relations. How are EC foreign policy measures taken under the Community method and how does this differ from the manner in which internal measures are adopted? Keukeleire distinguishes three types of foreign policy instruments: diplomatic instruments, military instruments, and economic-financial and other ‘soft’ instruments.² From a legal perspective, these different functions have to be embedded in certain legal instruments, which cannot be separated as easily in the three categories just cited. In what follows, a primary distinction will be drawn between autonomous measures on the one hand, and international agreements on the other hand, both of which can encompass the functions cited by Keukeleire to varying degrees. As far as autonomous acts are concerned, the Community legal instruments are identical in internal and external policies. The following will therefore not contain a specific analysis of the legal instruments for autonomous measures in EC external relations, but will instead focus on the particularities of the Community decision-making process in external relations compared with internal relations. By contrast, Chapter 4 will contain an analysis of the specific legal instruments for autonomous measures within the CFSP. However, it should already be noted that neither the EC Treaty legal instruments as laid down in Article 249 EC, nor the CFSP legal instruments as laid down in Article 12 EU appear fully to meet the ¹ See the Opinion of Mazák AG in Case C-440/05 Commission v Council [2006] OJ C22/10, point 46, describing the Community method as ‘characterising the “hard core” of European integration under the European Communities’. Further on the Community method: AA Dashwood, ‘Issues of Decision-making in the European Union after Nice’ in AM Arnull and D Wincott (eds), Accountability and Legitimacy in the European Union (2002) 22–24. ² S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 35–38.

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needs of external relations, and that recourse is often had to so-called sui generis instruments. For example, in the Small Arms and Light Weapons case,³ the act of which the Commission obtained the annulment was a Council decision implementing a joint action. The use of sui generis legal instruments will be briefly analysed with regard to the CFSP in Chapter 4.⁴ The unified treaty-making procedure that would be introduced by the Treaty of Lisbon will also be analysed there. It should be noted that the only two provisions (now Articles 133 and 310 EC) in the original EEC Treaty explicitly mentioning external competences for the EC combined both the substantive and procedural aspects in the same article. This drafting practice has been abandoned gradually in subsequent Treaty amendments, as the drafters attempted to separate the substantive aspects of external relations competence from the procedural.⁵

3.2 Autonomous Measures 3.2.1 Initiative stage The genius of the Community method is the creation of an independent body possessing the sole right of initiative for legislation and regulation: the Commission. The only way the Commission was thought to have a chance of defending the general good of the Community was through this sole right of initiative, and by imposing on the Council the obligation to act by unanimity should it wish to act outside the Commission proposal. The Commission can also amend its proposal during deliberations in the Council, or withdraw its proposal as long as the Council has not acted. This gives the Commission an eminently important role in determining the policy lines of the Community.⁶ However, the other institutions do have some means of affecting the formulation of policies by the Community either indirectly by requesting the Commission to submit a proposal (as the Council⁷ and the European Parliament⁸ can) or directly (as the European Council can) by defining the general political guidelines for the Union and thus for the Community.⁹ In practice, the Council ³ Case C-91/05 Commission v Council [2005] OJ C115/10: see ch 8.3.2. ⁴ For a general discussion of EU legal instruments: J Bast, ‘On the Grammar of EU Law: Legal Instruments’ (Jean Monnet Working Paper 9/03, 2003). ⁵ cf AA Dashwood, ‘The Attribution of External Relations Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 121–124. The gradually achieved strong differentiation between substantive and procedural attribution is also reflected in the Council practice of citing both the procedural and the substantive legal bases when authorizing the conclusion of an international agreement: ibid, 126–127. ⁶ On the role of the Commission in the Union’s constitutional structure and on its contribution to democratic governance: A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (2002) 228–240. ⁷ Art 208 EC. ⁸ Art 192, para 2 EC. ⁹ Art 4 EU.

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Presidency or individual Member States can also have a significant role in taking certain foreign policy initiatives. Moreover, even when exercising its sole right of initiative, the Commission cannot afford to go cavalier seul: it must (and mostly does) take into account opinions and advice from other institutions and from external sources such as lobby groups or academic advisors. Especially with regard to foreign policy, a strong cooperation between the Commission and the European Council is of great importance.¹⁰ This is facilitated by the fact that the President of the Commission is a member of the European Council, and that the latter is assisted by another member of the Commission.¹¹

3.2.2 Decision-making stage While the Community’s main decision-maker is the Council, the European Parliament gradually and over the course of several decades has gained an almost equal status to the Council in the legislative sphere.¹² A panoply of decisionmaking procedures have been developed during the course of the history of the Community/Union, which all involve the Parliament to a greater or lesser extent, ranging from total absence to complete equality with the Council. This is not the place to delve deeper into the technicalities of the several legislative procedures.¹³ However, the point to emphasize is that the role of the European Parliament in the Community’s external relations, while larger than in the second pillar, is still a great deal smaller than with regard to internal Community policies. It is telling that in the Community’s largest and most successful area of foreign policy, the CCP, the European Parliament has no formal role in the internal decisionmaking procedure.¹⁴ On the other hand, the European Parliament is involved on an equal footing with the Council in adopting autonomous measures necessary to further the objectives of the Community’s development cooperation. The codecision procedure applies to the adoption of these measures, which may take the form of multi-annual programmes.¹⁵ An all-important point of discussion regarding the Community method is the procedure followed by the Council for adopting decisions. The options range from unanimity to several forms of QMV. For example, when taking the unilateral internal measures ‘implementing the CCP’ the Council acts by a QMV on a proposal from the Commission.¹⁶ This central competence of EC external ¹⁰ S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 69–70; in general on the initiative stage: ibid, 67–70. ¹¹ Art 4, para 2 EU. ¹² Through the (not universally applicable) co-decision procedure: Art 251 EC. ¹³ cf eg K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 584–601, paras 14-020-14-040. ¹⁴ cf S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 109. ¹⁵ Art 179(1) EC. ¹⁶ Art 133(2) and (4) EC.

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relations, and indeed of the Community as a whole, therefore operates by way of a very lightweight decision-making system. The combination of the Commission’s sole right of initiative and QMV in the Council enables the Commission in theory to act as the guarantor of the overarching good of the Community, because it is in a position to amend its proposal during the Council negotiations to the extent required for it to obtain the necessary votes. However, if the Council decides by unanimity, the Commission when formulating its proposals will have to take into account the concerns of every single Member State, and will often have to adjust significantly its proposal before the Council agrees to take it on board. Alternatively, the Commission can maintain its proposal unaltered and risk it being amended by the Council acting unanimously. Once the Commission has made its proposal, it cannot be very influential, and its role is limited to that of an honest broker. Contrary to QMV decision-making, if the Member States can reach unanimity in the Council, they can do whatever they want, within the parameters of the Commission proposal on the table. The Commission thus has greater leeway if the Council decides by QMV.¹⁷ The latter element, in combination with the plain fact that decisionmaking within a group will be easier if not all members need to agree, makes QMV the preferred decision-making option for many commentators, both for internal and external matters. However, Council practice shows that the majority of cases are decided by consensus, without ever putting matters to vote.¹⁸ A first pragmatic explanation for this practice can be that any decision of the Council has been extensively deliberated within the Permanent Representatives Committee (COREPER) and in Council working groups before it reaches the stages of formal Council decision-making. This implies that every Member State will already be aware of the difficulties for certain Member States in the proposals at hand, and many ‘rough edges’ will already have been negotiated away. A second explanation is that a Member State is well aware that if it pushes through a certain decision against the will of another Member State, the latter will have fewer qualms about doing the same in cases where it joins the majority and the former Member State finds itself alone. Moreover, implementation of Community decisions falls largely on the shoulders of the Member States. Fear exists that the Member States that have voted against a decision would also not be eager to implement that decision. Indeed, if a Member State has had to swallow an unwanted decision in an area of great importance to itself and its citizens, it might take a less flexible approach in other areas as well. ¹⁷ K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 581, para 14–017. ¹⁸ S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 72; further: F HayesRenshaw and H Wallace, The Council of Ministers (2006) 259–297; F Hayes-Renshaw, W Van Aken, and H Wallace, ‘When and Why the EU Council of Ministers Votes Explicitly’ (2006) 44 J Common Market Studies 161–194.

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The practice of taking as many decisions as possible by consensus implies that the preceding negotiations will often be long and arduous. The equation of QMV in the Council with efficient decision-making is thus not as obvious as it seems. This will have to be taken into account when considering the possibility of introducing more QMV in the Council for the entire field of foreign policy, including the CFSP. Even though in theory QMV would seem to be far more likely to lead to quick and efficient decision making, the fact that in the Community it most often comes down to a de facto consensus system, makes it less useful for foreign policy decisions.¹⁹ This also puts into perspective the discussion about the nature of the Community’s external relations competences: whether the external competence in question is exclusive or not, the Community institutions will strive to achieve consensus as much as they can.²⁰ On a more fundamental level, one may wonder whether the often-used opposition between QMV as the incarnation of ‘democracy’ and unanimity as the incarnation of ‘diplomacy’ is in fact a valid one.²¹ None the less, it is often rather the possibility of QMV than actual QMV itself that has a positive effect on the efficiency of the decision-making process. A Member State confronted with the possibility of its concerns being voted down by a majority of other Member States may be more inclined to be accommodating than a Member State well aware that it could block a decision at any time.²²

3.3 International Agreements 3.3.1 Introduction While the EC Treaty lacks a general legal basis for substantive external relations action, it has from the start contained a general procedural legal basis for the conclusion of international agreements. Th is can be found in Article 300 EC (ex-Article 228 EEC²³). The most striking difference with the law-making procedure for autonomous measures or for internal matters is the role of the Commission, whose right of initiative is much more limited with regard to international agreements, and the very limited involvement of the European Parliament. As will be argued, this is a consequence of the involvement of third countries and the requirements of the external relations of the Union. ¹⁹ S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 74–76. ²⁰ Ibid, 109. ²¹ cf A Peters, ‘European Democracy After the 2003 Convention’ (2004) 41 CML Rev 53–58. ²² S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 74. ²³ Further on Art 228 EEC, which was incomplete as a procedural legal basis: AA Dashwood, ‘The Attribution of External Relations Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 122.

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The Court pointed out in Opinion 1/75 [Draft Understanding on a Local Cost Standard drawn up under the auspices of the OECD] that ‘agreement’ is to be understood ‘in a general sense to indicate any undertaking entered into by entities subject to international law which has binding force, whatever its formal designation’.²⁴ However, mere guidelines do not constitute a binding agreement and therefore do not fall within the scope of Article 300 EC.²⁵ In the Court’s terms, Article 300 EC constitutes ‘an autonomous general provision, in that it confers specific powers on the Community institutions’ with regard to the conclusion of treaties.²⁶ According to the Court, it also intends to establish a balance between the institutions of the Community. To that end, Article 300 EC ‘provides that agreements between the Community and one or more States are to be negotiated by the Commission and then concluded by the Council, after consulting the European Parliament where required by the Treaty’. ‘However’, the Court added, ‘the power to conclude agreements is conferred on the Council “subject to the powers vested in the Commission in this field” ’.²⁷ The following describes the different stages of the procedure under different headings: negotiation, conclusion, and suspension or termination. While for analytical purposes a distinction between the several procedural stages is useful, in practice these stages are not always as clearly separable from each other. This is especially the case with regard to complex negotiations such as the Uruguay Round leading up to the WTO-agreement,²⁸ which encompassed several consecutive phases of negotiation.²⁹ ²⁴ Opinion 1/75 [Draft Understanding on a Local Cost Standard drawn up under the auspices of the OECD] [1975] ECR 1355, 1359–1360. For an excellent overview of the function and position of bilateral agreements in EC law: M Maresceau, ‘Bilateral agreements concluded by the European Community’ in (2004) 309 Receuil des cours 125–451. On the practice of EC international agreements, see eg P Koutrakos, EU International Relations Law (2006) 359–380. ²⁵ Case C-233/02 France v Commission [2004] ECR I-2759, para 45. Art 111(1) EC uses the expression ‘formal agreements’ with regard to international agreements in the sphere of monetary policy. The Maastricht IGC, however, emphasized ‘that use of the term “formal agreements” in Art 109(1) [now Art 111(1) EC] is not intended to create a new category of international agreement within the meaning of Community law’: Declaration No 8 on Article 109 of the Treaty Establishing the European Community, annexed to the Treaty on European Union [1992] OJ C191/99; further: K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 882, para 21–002, fn 2. However, the fact that a measure (eg ‘guidelines’) is not binding is not sufficient to confer on any individual institution the competence to adopt it. Determining the conditions under which such a measure may be adopted requires that the division of competences and the institutional balance established by the EC Treaty be duly taken into account: Case C-233/02 France v Commission [2004] ECR I-2759, para 40. ²⁶ Case C-327/91 France v Commission [1994] ECR I-3641, para 28. ²⁷ Ibid, referring to Art 300(2) EC; see ch 3.3.4. ²⁸ Agreement Establishing the World Trade Organization, 1867 UNTS 154; 33 ILM 1144 (1994). ²⁹ See eg JH Jackson, The World Trading System: Law and Policy of International Economic Relations (1997) 44–46; P Van den Bossche, The Law and Policy of the World Trade Organization: Text, Cases and Materials (2005) 83–85.

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3.3.2 Negotiation The procedure for negotiating international agreements within the CCP-sphere, which was applied by analogy to other international agreements, is as follows.³⁰ When it finds that an international agreement between the Community and one or more States or international organizations needs to be negotiated, the Commission makes recommendations to the Council. The Commission can conduct exploratory discussions in the pre-negotiation stage with potential third country treaty-partners.³¹ However, contrary to internal matters, the Council is not bound by the Commission proposal, and can ignore or change it. With regard to external policies, the Council can stop the Commission in its tracks, which it cannot do with regard to internal policies. The Commission therefore has much less leeway to perform its role of advocate of the overall Community interests than it has with regard to internal policies. If the Council shares the Commission’s opinion, it can authorize the latter to open the negotiations.³² As the Court held in two infringement proceedings brought against Luxembourg and Germany, the adoption of a decision authorizing the Commission to negotiate an international agreement on behalf of the Community marks the start of a concerted Community action at the international level. For that purpose it requires at the very least a duty of close cooperation between the Member States and the Community institutions ‘in order to facilitate the achievement of the Community tasks and to ensure the coherence and consistency of the action and its international representation’.³³ If a Member State autonomously concludes an international agreement on the same subject-matter after the Council has authorized the Commission to open negotiations, without consulting with the Community institutions, it infringes Article 10 EC.³⁴ However, as argued by Advocate General Tizzano in his Opinion in Commission v Germany, the negotiation of an agreement at Community level may be a lengthy process and may also be unsuccessful. It would therefore be disproportionate to rule out any action by the Member States for the duration of the negotiations. This is especially so when action is needed in order to prevent a legal vacuum. The Advocate General

³⁰ Art 133(3) EC; for an analysis from a political science perspective: S Meunier and K Nicolaïdis, ‘The European Union as a Trade Power’ in C Hill and M Smith (eds), International Relations and the European Union (2005) 254–257. ³¹ C Flaesch-Mougin, ‘Le Traite de Maastricht et les compétences externes de la Communauté européenne: a la recherche d’une politique externe de l’union’ (1993) 29 Cahiers de droit européen 378; K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 883, para 21-004. ³² On the Commission’s capacity to negotiate: S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 136–144. ³³ Case C-266/03 Commission v Luxembourg [2005] ECR I-4805, para 60 and Case C-433/03 Commission v Germany [2005] ECR I-6985, para 66. ³⁴ Case C-266/03 Commission v Luxembourg [2005] ECR I-4805, paras 57–66 and Case C-433/03 Commission v Germany [2005] ECR I-6985, paras 64–73.

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therefore considered a negotiating mandate in itself insufficient to establish an exclusive Community competence in that case.³⁵ When negotiating the agreement, the Commission has to stay within the confines of the negotiating directives given to it by the Council. Article 133(3) EC mentions two ways in which the Council can keep the Commission in check during negotiations of an international agreement. The Council appoints a special committee to assist the Commission in its task. The Commission is obliged to consult this committee throughout the negotiations and regularly to report to it on the progress of the negotiations. The Council may also issue specific directives and the Commission will in that case have to negotiate within the framework set by such directives. It should be kept in mind that the Council has the competence to conclude the agreement, which is why its ability to control the Commission during the negotiations is crucial.³⁶ It would be embarrassing and detrimental to the external relations of the Community should the Council be unwilling to conclude an agreement that the Commission had negotiated with a third country. The Council and the Commission share the responsibility for ensuring that the agreements negotiated are compatible with internal Community law and policy. The other procedural aspects of the negotiation of international agreements are regulated in Article 300 EC.³⁷ It is not surprising that Article 300(1), subparagraph 1 EC and Article 133(3) EC are almost exactly alike. Article 300(1) EC is in fact the result of the Treaty of Maastricht’s codification of the previously existing praeter legem practice whereby Article 133(3) EC was applied by analogy to international agreements outside the field of the CCP.³⁸ The differences between the two Articles are limited to the additional stipulations in Article 133(3) EC that the Commission has a duty to report regularly on the progress of the negotiations to the special committee appointed by the Council, and that the Council and the Commission share the responsibility for ensuring that the agreements negotiated are compatible with internal Community law and policy. Both Articles 133(4) EC and 300(1), subparagraph 2 EC establish the rule that voting in the Council on the opening of negotiations of international agreements will normally proceed through QMV. However, the same caveat as for purely internal measures applies here: the Member States will in general strive to decide ³⁵ Opinion of Tizzano AG in Case C-433/03 Commission v Germany [2005] ECR I-6985, points 77–78. ³⁶ cf K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 883, para 21-004. ³⁷ cf AA Dashwood, ‘The Attribution of External Relations Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 122, who argues that the inclusion of Art 300 in the Treaty was a strong indication that the possibility for external action of the Community could not be confined to the Treaty Articles specifically mentioning external action, given that this would have made the general international agreement-making procedure in Art 300 EC almost entirely redundant. ³⁸ AA Dashwood, ‘The Attribution of External Relations Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 125.

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by consensus, and attempt to avoid voting in the Council as much as possible. The negotiation mandate the Council gives to the Commission is therefore mostly a thoroughly discussed compromise, which implies a considerably smaller amount of leeway for the Commission,³⁹ and often places the Commission in a dilemma. If it stays clearly within the bounds of its mandate, it is severely restricted in its negotiating possibilities, due to a lack of flexibility. If, however, the Commission explores or even surpasses the limits of its mandate it will run the risk of being reprimanded by the Council, and severely damaging the relation of trust between itself and the Member States. Just how difficult this balance sometimes is, can be gathered from the bitter debates within the Community on the negotiating directives with regard to agricultural trade during the Uruguay Round which, as argued by Van den Bossche, could have led to the failure of the Round and to a deep crisis in the Community.⁴⁰ The general rule of QMV in the Council has two main exceptions: (1) when the agreement falls within an area of competence that requires unanimity in the Council for the adoption of internal measures; and (2) when the international agreement in question is an ‘association agreement’ as referred to in Article 310 EC. In these cases, the Council acts by unanimity instead of QMV.⁴¹ The Council also acts by unanimity in a number of specific areas. This is the case regarding agreements in the fields of trade in services and the commercial aspects of intellectual property, when it relates to a field in which the Community has not yet exercised the competences conferred upon it by the EC Treaty by adopting internal rules.⁴² The same counts for a ‘horizontal agreement’ in the fields of trade in services and the commercial aspects of intellectual property where that agreement includes provisions for which unanimity is required for the adoption of internal rules or where it relates to a field in which the Community has not yet adopted internal rules, and agreements relating to trade in cultural and audiovisual services, educational services, and social and human health services as referred to in Article 133(6), subparagraph 2 EC.⁴³ Notwithstanding the fact that the European Parliament lacks any Treatybased powers with regard to the negotiation of international agreements, the Rules of Procedure of the European Parliament (RPEP) do set out how it aspires to be involved in the process. When the Commission intends to open ³⁹ cf S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 137. ⁴⁰ P Van den Bossche, ‘The European Community and the Uruguay Round Agreements’ in JH Jackson and AO Sykes (eds), Implementing the Uruguay Round (1997) 59–66; cf S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 141, who suggests that the Uruguay Round experience is a significant factor in the mistrusting attitude of the Council and the Member States towards increased involvement of the Commission in Community external relations and in the CFSP. ⁴¹ Art 300(1), subpara 2 and (2), subpara 1 EC. ⁴² Art 133(5), subpara 2 EC. ⁴³ Art 133(5), subpara 3 EC. The exact meaning of ‘horizontal agreement’ is unclear: P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 51; P Koutrakos, EU International Relations Law (2006) 69.

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negotiations on the conclusion, renewal or amendment of an international agreement, including agreements in specific areas such as monetary affairs or trade, the responsible parliamentary committee has to ensure that the European Parliament is fully informed by the Commission about its recommendations for a negotiating mandate, if necessary on a confidential basis.⁴⁴ On its part, the Commission has taken it upon itself to provide early and clear briefing of the European Parliament and to keep the European Parliament regularly and fully informed of the subsequent conduct and conclusion of international negotiations, through the relevant parliamentary committee and, where appropriate, at a plenary sitting.⁴⁵ Under the 2005 Framework Agreement on relations between the European Parliament and the Commission (‘the 2005 Framework Agreement’),⁴⁶ it is further specified that this early and clear information will be provided by the Commission to the Parliament both during the phase of preparation of the agreements and during the conduct and conclusion of international negotiations. ‘This information covers the draft negotiating directives, the adopted negotiating directives, the subsequent conduct of negotiations and the conclusion of the negotiations.’⁴⁷ The Council has agreed that the European Parliament should hold a debate before the start of the international negotiations and that, in case the negotiations concern an association agreement, the Commission should remain in close contact with the responsible parliamentary committee throughout the negotiations.⁴⁸ The European Parliament also has the possibility, on a proposal from the responsible parliamentary committee, a political group or at least 37 Members, to request the Council not to authorize the opening of negotiations until Parliament has stated its position on the proposed negotiating mandate on the basis of a report from the responsible parliamentary committee.⁴⁹ Even though these RPEP provisions are not binding upon the Council or the Commission, they give the Parliament some actual leverage in cases where the agreement being negotiated will need parliamentary approval.⁵⁰ ⁴⁴ 83(1) RPEP. ⁴⁵ Framework Agreement on relations between the European Parliament and the Commission [2001] OJ C121/122, annexed to the Rules of Procedure of the European Parliament (‘the 2001 Framework Agreement’), paras 2–3. ⁴⁶ Framework Agreement on relations between the European Parliament and the Commission [2006] OJ C117E/123, annexed to the Rules of Procedure of the European Parliament. ⁴⁷ 2005 Framework Agreement, para 19; further: P Koutrakos, EU International Relations Law (2006) 148–149. ⁴⁸ This was agreed under the so-called ‘Luns-Westerterp’ procedures (never officially published): K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 884, para 21-004. For the text: C Tomuschat, ‘Artikel 228 [Abkommen der Gemeinschaft]’ in H Von der Groeben, J Thiesing, and CD Ehlermann (eds), Kommentar zum EWG-Vertrag (Baden-Baden: Nomos Verlagsgesellschaft, 1997) 5493–5494. ⁴⁹ 83(2) RPEP. ⁵⁰ K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 884, para 21-004; see also S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 144–145; see ch 3.3.4.

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Article 111(3) EC contains specific procedural arrangements for negotiating international agreements within the sphere of the EMU, which derogate from Article 300 EC.⁵¹ The Community’s negotiating capacities for international agreements are not necessarily greater with regard to its exclusive external competences than with regard to its non-exclusive competences.⁵² This again puts into perspective the debates on the nature of the Community competence. For example, the experience during the Uruguay Round has shown that the Community was able to act decisively and coherently in the negotiations on services and intellectual property, while at the same time waging internal competence battles over these areas of non-exclusive competence. However, the Community’s actions were rather less uniform with regard to such exclusive competences as common agricultural policy (CAP) and anti-dumping measures.⁵³

3.3.3 Signature The signing stage starts with the Commission making a proposal to that effect. It is then up to the Council to decide on the signing of the agreement and hence to approve or disapprove of the Commission’s proposal, acting by QMV, or by unanimity in the same circumstances as described above regarding negotiations.⁵⁴ The European Parliament has to be ‘immediately and fully’ informed if the Council decides that an agreement shall apply provisionally.⁵⁵ Apart from that, there is no Treaty-based involvement of the European Parliament in the signing of an international agreement. The RPEP, however, determine that when the negotiations for an international agreement are completed, but before it is signed, the draft agreement has to be submitted to Parliament for opinion or for assent.⁵⁶ The RPEP are, however, not enforceable vis-à-vis the other institutions. It should be noted that international agreements can be concluded by mere signature. Signature expresses consent if the treaty so provides or if it is established in some other way that the negotiating States were agreed that signature should have that effect. Alternatively, the intention of the State to give that effect to the signature could also appear from the full powers of its representative or could have ⁵¹ Further: K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 884, para 21-005. ⁵² See S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 142. ⁵³ Ibid. For an account of the negotiation of the Uruguay Round agreements by the Community: P Van den Bossche, ‘The European Community and the Uruguay Round Agreements’ in JH Jackson and AO Sykes (eds), Implementing the Uruguay Round (1997) 53–95. ⁵⁴ Art 300(2) EC. ⁵⁵ Art 300(2), para 3 EC; see Art 25 Vienna Convention on the Law of Treaties, 23 May 1969, UN Doc. A/Conf.39/27; 1155 UNTS 331; 8 ILM 679 (1969); 63 AJIL 875 (1969) (cf Art 25 Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, 25 ILM 543 (1986)). ⁵⁶ 83(6) RPEP.

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been expressed during the negotiation.⁵⁷ A common clause to that effect is that the treaty ‘shall enter into force on the date of signature’.⁵⁸ In fact, treaties now mostly indicate explicitly if they require a procedure more complex than signature in order to enter into force. If the treaty provides no express or implied indication that it requires ratification, it will be presumed to enter into force on signature.⁵⁹

3.3.4 Conclusion The Council concludes the agreement through a decision by QMV, acting on a proposal by the Commission.⁶⁰ By derogation from this rule, the Council will act by unanimity when the agreement covers a field for which internal rules can only be adopted by unanimity,⁶¹ and for association agreements as referred to in Article 310 EC.⁶² This exception also counts for agreements in the fields of trade in services and the commercial aspects of intellectual property, when it relates to a field in which the Community has not yet exercised its competences by adopting internal rules.⁶³ Article 300(2) EC grants the abovementioned powers to the Council ‘subject to the powers vested in the Commission in this field’. This phrase refers to the limited powers the Commission has to conclude certain types of administrative agreements. First, Article 302 EC entrusts the Commission with the task of ensuring the maintenance of all appropriate relations with all international organizations, and in particular with the organs of the UN and of its specialized agencies. It is unclear whether this includes the competence for the Commission to conclude international agreements on this basis. Secondly, the Commission has the power to conclude agreements with third countries in order for Community laissez-passer (for members and civil servants of the Community institutions) to be recognized as valid travel documents within their territories.⁶⁴ It should, however, be borne in mind that even though the Commission has the competence to adopt internal measures in a certain area, that internal competence cannot alter the horizontal division of competences, or more particularly, between the Commission and the Council, with regard to the conclusion of international ⁵⁷ Art 12 Vienna Convention on the Law of Treaties, 23 May 1969, UN Doc. A/Conf.39/27; 1155 UNTS 331; 8 ILM 679 (1969); 63 AJIL 875 (1969) (cf Art 12 Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, 25 ILM 543 (1986)). ⁵⁸ A Aust, Modern Treaty Law and Practice (2007) 96. ⁵⁹ I Sinclair, The Vienna Convention on the Law of Treaties (1984) 39–41; A Aust, Modern Treaty Law and Practice (2007) 97. ⁶⁰ Art 300(1), subpara 2 EC. ⁶¹ eg Arts 111(1), 174(4), 175(2), and 308 EC; cf Art 133(5) EC. ⁶² Art 300(2), subpara 1 EC. ⁶³ Art 133(5), subpara 2 EC. ⁶⁴ Treaty establishing a Single Council and a Single Commission of the European Communities, Protocol on the Privileges and Immunities of the European Communities, Art 7 [1967] OJ L152/13.

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agreements.⁶⁵ Apart from these, the Council has the power to authorize the Commission to approve modifications on behalf of the Community where an agreement to be concluded provides for these modifications to be adopted by a simplified procedure or by a body set up by the Agreement. The Council may attach specific conditions to such authorization.⁶⁶ Prior to the conclusion of the agreement, the Council should consult the European Parliament.⁶⁷ The proper moment for this consultation is, according to Parliament, ‘when the negotiations are completed, but before any agreement is signed’.⁶⁸ However, Bieber noted that, in practice a Council representative notified the appropriate parliamentary committees in confidence and unofficially of the essential content of the agreement when the negotiations were completed but before any agreement was signed. The agreement was formally submitted to Parliament only after it had been signed.⁶⁹ Involvement of the Parliament is limited to consultation, including, on the one hand, with regard to those agreements which cover areas in which the co-decision⁷⁰ or the co-operation procedure⁷¹ would apply to internal measures,⁷² but also, on the other hand, with regard to those agreements which cover areas where no Parliamentary involvement is required for the adoption of internal measures. The European Parliament does not, however, need to be consulted for any agreements in the field of the CCP. An explanation for this can be found in that international commercial agreements are often seen as requiring urgent action.⁷³ However, this is not a sufficient reason for excluding the European Parliament from involvement in all CCP-related international agreements. As Article 300(3) EC makes clear, the Council can impose a time-limit within which the Parliament has to deliver its opinion, and it can tailor this time-limit to reflect the urgency of the matter. If the European Parliament neglects to deliver its opinion on the proposed international agreement within the time-limit, the Council may act on its own authority.⁷⁴ Advocate General Léger has opined that the fact that the European Parliament rejects the Council’s request for urgency and instead requests the Court of Justice ⁶⁵ Case C-327/91 France v Commission [1994] ECR I-3641, para 41. Further: K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 887, para 21-008, fn 27; P Koutrakos, EU International Relations Law (2006) 141–144. ⁶⁶ Art 300(4) EC. ⁶⁷ Art 300(3), subpara 1 EC. ⁶⁸ 83(6) RPEP. ⁶⁹ R Bieber, ‘Democratic Control of European Foreign Policy’ (1990) 1 Eur J Intl L 164. ⁷⁰ Art 251 EC. ⁷¹ Art 252 EC. ⁷² In the understanding that such internal measure have not yet been taken: cf Art 300(3), subpara 2 EC. ⁷³ AA Dashwood, ‘The Attribution of External Relations Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 125. ⁷⁴ eg Council Decision 2004/496/EC of 17 May 2004 on the conclusion of an Agreement between the European Community and the United States of America on the processing and transfer of PNR data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection [2004] OJ L183/83, Preamble, Recital (2). The European Parliament challenged Council Decision 2004/496/EC before the Court of Justice in Joined Cases C-317/04 and C-318/04 European Parliament v Council and Commission [2006] ECR I-4721.

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for an Opinion under Article 300(6) EC does not make the Council’s subsequent adoption of a decision approving an international agreement without waiting for the Court’s Opinion a breach of Article 10 EC.⁷⁵ Instead of excluding all international agreements in the CCP-sphere from European Parliament involvement, it would surely be possible for the Council to determine in each individual case whether urgent action is required and to lay down the time-limits for the European Parliament’s opinion accordingly. The lack of involvement of the European Parliament in important CCP treaties is also anomalous if compared to its obligatory assent to any association agreement or amendments to the latter.⁷⁶ Why should the Parliament be involved in sometimes relatively unimportant association agreements through the quite laborious assent procedure, while any involvement in often highly important external trade agreements is excluded?⁷⁷ The Westerterp procedure attempted slightly to remedy this situation, by providing that Parliament may scrutinize a signed agreement and subsequently adopt an opinion on its own initiative.⁷⁸ The European Council at Stuttgart proposed in 1983 that the European Parliament should be consulted regarding the conclusion of what it described as ‘significant international agreements’,⁷⁹ and this is what the Council apparently mostly does in practice.⁸⁰ The European Parliament delivers its opinion in a single vote by a majority of the votes cast without any amendments to the text of the agreement or protocol being admissible.⁸¹ This opinion is not binding on the Council. However, the RPEP provide for the President of the Parliament to request the Council not to conclude the agreement concerned when the Parliament renders a negative opinion.⁸² Article 300(3), subparagraph 2 EC, however, also mentions a number of categories of international agreements for which mere consultation of the European Parliament was not considered sufficient. The European Parliament has to give its assent to any international agreements falling within the following ⁷⁵ Opinion of Léger AG in Joined Cases C-317/04 and C-318/04 European Parliament v Council and Commission [2006] ECR I-4721, points 270–281. The Court did not rule on the matter and annulled Council Decision 2004/496/EC on the grounds that it had been improperly adopted on the basis of Art 95 EC: Joined Cases C-317/04 and C-318/04 European Parliament v Council and Commission [2006] ECR I-4721, paras 67–69; further on this case and its constitutional and institutional implications: MC Lang, ‘Cour de justice, 30 mai 2006 Parlement/Conseil et Parlement/ Commission’ [2006] Law & European Affairs 341–354. ⁷⁶ Art 300(3) EC. ⁷⁷ cf also S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 145. ⁷⁸ K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 888, para 21-011. ⁷⁹ Solemn Declaration of Stuttgart on European Union, adopted by the European Council (preTEU) on 19 June 1983, Bulletin of the European Communities, 6 (1983) (‘Stuttgart Declaration’), para 2.3.7. ⁸⁰ cf, however, eg the Resolution on the failure to consult Parliament on the EU-Russia Interim Agreement [1996] OJ C47/26; further: I Bosse-Platière, ‘Le Parlement européen et les relations extérieures de la Communauté européenne après le Traité de Nice’ (2002) 38 Revue trimestrielle de droit européen 527–553. ⁸¹ 83(7) RPEP. ⁸² 83(8) RPEP.

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four categories: (1) ‘association agreements’;⁸³ (2) ‘other agreements establishing a specific institutional framework by organising co-operation procedures’;⁸⁴ (3) agreements that have important budgetary implications for the European Community;⁸⁵ and (4) agreements that would entail an amendment of an internal Community act that had been adopted under the co-decision procedure.⁸⁶ When the involvement of the European Parliament in the conclusion of international agreements is limited to consultation, as is the case with regard to most international agreements, this procedure also applies with regard to those agreements which cover areas in which the co-decision (or the cooperation procedure⁸⁷) would apply to internal measures. This is, however, on the understanding that such internal measures do not require amendment. As Article 300(3), subparagraph 2 EC makes clear, the Council cannot amend internal Community measures that have been adopted through the co-decision procedure by concluding an international agreement. The four criteria mentioned seem an attempt to subject all international agreements considered important to assent by the European Parliament, not—apart from the first category—by referring to the specific legal bases on which such agreements could be based,⁸⁸ but by providing general descriptions of categories of important agreements. While this has the advantage of flexibility, it also opens up the possibility of turf wars between the European Parliament and the Council.⁸⁹ ⁸³ Art 310 EC. ⁸⁴ Given that most agreements involving a cooperation procedure establish some institutional framework, the latter can hardly be the distinguishing feature of this type of agreement. This category therefore probably refers to international agreements setting up an institutional structure attaining a certain level of complexity, but none the less not concluded under Art 310 EC. The most obvious example would be the WTO Agreement: cf C Flaesch-Mougin, ‘Le Traite de Maastricht et les compétences externes de la Communauté européenne: a la recherche d’une politique externe de l’union’ (1993) 29 Cahiers de droit européen 385–386; K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 889, para 21–013; a relatively recent example is the European Parliament’s assent to the Community’s accession to the Hague Conference on Private International Law: 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. ⁸⁵ The following criteria need to be taken into account in determining whether an agreement has important budgetary implications: (i) the fact that expenditure under the agreement is spread over several years; (ii) a comparison of the expenditure under an agreement with the amount of the appropriations designed to finance the Community’s external operations; and (iii) where a sectoral agreement is involved, the latter analysis may in appropriate cases, and without excluding the possibility of taking other factors into account, be complemented by a comparison between the expenditure entailed by the agreement and the whole of the budgetary appropriations for the sector in question, taking the internal and external aspects together: Case C-189/97 European Parliament v Council ECR [1999] I-4741, paras 20–32; see also P Koutrakos, EU International Relations Law (2006) 145–147. ⁸⁶ Art 251 EC. The Court has never ruled on the scope of this category: further: Opinion of Léger AG in Joined Cases C-317/04 and C-318/04 European Parliament v Council and Commission [2006] ECR I-4721, points 181–183. ⁸⁷ Art 252 EC. ⁸⁸ In contrast to the approach taken in Art 300(2) EC with regard to voting requirements in the Council. ⁸⁹ C Flaesch-Mougin, ‘Le Traite de Maastricht et les compétences externes de la Communauté européenne: a la recherche d’une politique externe de l’union’ (1993) 29 Cahiers de droit européen

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The possible need for urgent international action is also taken into account: Article 300(3), subparagraph 3 EC stipulates that the European Parliament and the Council can agree that a time-limit should be set within which the Parliament has to give its assent to the proposed international agreement. As with regard to consultation, the RPEP stipulate that the assent should be given ‘when the negotiations are completed, but before any agreement is signed’.⁹⁰ The European Parliament takes a decision on the basis of a recommendation from the parliamentary committee responsible to approve or reject the act.⁹¹ Parliament gives its assent in the same way it delivers its opinion in case of consultation: in a single vote by a majority of the votes cast without any amendments to the text of the agreement or protocol being admissible.⁹² If the European Parliament withholds its assent to an international agreement, the President of the Parliament will notify the Council that the agreement in question cannot be concluded.⁹³ In the past, the European Parliament has been able to use its power to withhold assent to international agreements (in particular to additional protocols), in order to get the Council to take its wishes into account, more specifically with regard to the respect for human rights by the third countries with whom the Community is involved in treaty negotiations.⁹⁴ Specific rules exist with respect to the conclusion of international agreements within the sphere of the EMU.⁹⁵ The internal Community instrument used by the Council to conclude international agreements is usually a sui generis ‘decision’, but the Council can equally act through a regulation or a decision in the sense of Article 249 EC, without changing anything vis-à-vis the legal status of the agreement.⁹⁶ International agreements have, for example, at times been concluded by way of a regulation.⁹⁷ 387; cf K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 890, para 21-013, who also describe the possible procedures involving the Council and Parliament for adopting international agreements: ibid, fn 39. ⁹⁰ 83(6) RPEP. ⁹¹ 75(1) RPEP. ⁹² 83(7) RPEP; Parliamentary assent to an association agreement has been required since the Single European Act. However, until the Treaty of Maastricht, this assent had to be given by an absolute majority of the component Members of the European Parliament (Art 238 EEC as amended by Art 9 SEA); cf K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 889, para 21-013. ⁹³ 83(9) RPEP. ⁹⁴ For an overview: K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 890–891, para 21-014, especially fn 42; see also S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 144–145. ⁹⁵ Art 111 EC. ⁹⁶ cf U Everling, ‘The Law of the External Economic Relations of the European Community’, in M Hilf, FG Jacobs, and EU Petersmann (eds), The European Community and GATT (1986) 96; C Tomuschat, ‘Artikel 228 [Abkommen der Gemeinschaft]’ in H Von der Groeben, J Thiesing, and CD Ehlermann (eds), Kommentar zum EWG-Vertrag (Baden-Baden: Nomos Verlagsgesellschaft, 1997) 5495–5496, para 44; K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 886, para 21-007. ⁹⁷ eg Council Regulation (EEC) No 2616/85 of 16 September 1985 concerning the conclusion of a Trade and Economic Cooperation Agreement between the European Economic Community and the People’s Republic of China [1985] OJ L250/1. See M Maresceau, ‘Bilateral agreements concluded by the European Community’ in (2004) 309 Receuil des cours 217, fn 202.

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The use of regulations would have the advantage of clearly setting out the legal consequences of the international agreement for the Member States vis-à-vis the Community. An international agreement concluded by way of a regulation will be binding in its entirety and directly applicable in all the Member States.⁹⁸ It would also be possible to make the provisions of the international agreement directly applicable in the Member States by way of a separate regulation, but it is more convenient to do it in one. The legal consequences of international agreements concluded by way of sui generis decisions can only be derived from Articles 10 and 300(7) EC. While the former contains the general Community loyalty principle, the latter stipulates that international agreement concluded by the Community in accordance with the procedure set out in Article 300 EC will be binding on the institutions and the Member States. However, the precise extent of the legal consequences of such agreements for the Member States remains unclear.⁹⁹ None the less, regardless of whether the legal instrument by which an international agreement is concluded is listed in Article 249 EC or is sui generis, it will be amenable to judicial review by the Court of Justice.¹⁰⁰ The Rules of Procedure of the Council (RPC) provide for the publication in the Official Journal of any international agreement concluded by the Community. The Official Journal will also refer to the entry into force of such an agreement.¹⁰¹ After the entry into force of the Treaty of Lisbon, the new publication requirements imposed by Article 297 TFEU would seem to cover any legal instrument through which an international agreement could plausibly be concluded, especially because any such agreement concluded by way of a decision that does not specify to whom it is addressed (in other words a sui generis decision) would have to be published in the Official Journal.¹⁰²

3.3.5 Suspension (and termination) The Council can decide to suspend the application of an agreement through the same procedure as regarding the signing of an agreement.¹⁰³ The European ⁹⁸ Art 249 EC. ⁹⁹ See Case 104/81 Hauptzollamt Mainz v C.A. Kupferberg & Cie KG a.A. [1982] ECR 3641; see also D Verwey, The European Community, the European Union and the International Law of Treaties (2004) 149–151; P Koutrakos, EU International Relations Law (2006) 184–186. ¹⁰⁰ See Case 22/70 Commission v Council [1971] ECR 263, para 42; Case C-327/91 France v Commission [1994] ECR I-3641, paras 14–17. ¹⁰¹ Art 17(1)(g) RPC. ¹⁰² Art 297(2), subpara 2 TFEU. Cf the Opinion of Sharpston AG in Case C-345/06 Heinrich [2006] OJ C281/19, fn 52. ¹⁰³ An agreement can, however, also be suspended in accordance with the procedure for the imposition of economic sanctions: K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 883, para 21-003. Cf Council Regulation (EEC) 3300/91 of 11 November 1991 suspending the trade concessions provided for by the Cooperation Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia [1991] OJ L315/1. On the validity of this regulation under international (and European) law: Case C-162/96 A. Racke

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Parliament should in that case be ‘immediately and fully informed’ about the matter¹⁰⁴ and the Commission will take the necessary steps to ensure that this indeed happens.¹⁰⁵ The limited role of the European Parliament in the suspension of an international agreement can be explained by the fact that suspension is often an urgent reaction to a perceived breach of its obligations by the third country or organization party to the agreement. An example of such a situation would be a breach by a third country of a human rights clause contained in an agreement with the Community.¹⁰⁶ The termination of an agreement equally—at least in principle—falls under Article 300 EC.¹⁰⁷

3.3.6 Decision-making in a body set up by an international agreement The conclusion by the Community of an ‘association agreement’ under Article 310 EC or another international agreement will sometimes give rise to the establishment of its own decision-making organs within which the Community will wish to take positions.¹⁰⁸ Such bodies with the competence to take binding decisions normally do so by consensus. The common positions to be defended by the Community need to be established in advance of the meeting at which the decision is scheduled to be taken. Article 300(2), subparagraph 2 EC gives the Council the competence to establish positions that should be adopted on behalf of the EC in such treaty-based bodies, when such a body is ‘called upon to adopt a decision having legal effects’, excluding, however, decisions that would supplement or amend the institutional framework of the international agreement, ie constitutional decisions sensu stricto. The Council adopts such positions on ‘decisions having legal effects’ through the same procedure as for the signing of international agreements. Given that the adoption of binding decisions in such international bodies in effect amounts to a new way of making GmbH & Co v Hauptzollamt Mainz [1998] ECR I-3655; cf Council Regulation (EEC) 1608/93 of 24 June 1993 introducing an embargo concerning certain trade between the European Economic Community and Haiti [1993] OJ L155/2. ¹⁰⁴ Art 300(2), subparas 2–3 EC. ¹⁰⁵ cf 2001 Framework Agreement, para 4; 2005 Framework Agreement, para 20. ¹⁰⁶ cf AA Dashwood, ‘External Relations Provisions of the Amsterdam Treaty’ (1998) 35 CML Rev 1025. ¹⁰⁷ eg Council Decision 91/602/EEC of 25 November 1991 denouncing the Cooperation Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia [1991] OJ L325/23, denouncing an agreement that had been concluded under Art 238 [now 310] EC. Consequently, the specific procedural requirements for the conclusion of such agreements set out in Art 300 EC (eg consent by the European Parliament) also applied to its termination; cf K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 882, para 21-003. ¹⁰⁸ eg 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, [1973] C113/1, [1977] L361.

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Community legislation, the determination of the Community position cannot be left solely to the Commission. These binding decisions do become an integral part of the Community legal system, and at least the involvement of the Council seems therefore necessary.¹⁰⁹ The European Parliament has the right to be ‘immediately and fully informed’ about such positions,¹¹⁰ and again the Commission is responsible for this.¹¹¹ Though decisions ‘having legal effects’ in such bodies will presumably often require urgent action, the exclusion of the European Parliament from the decision-making process, except for its right to be informed, is far less justified here than when the suspension of an agreement is required.

3.4 Implementation Stage In absence of specific provisions in a Community measure, it is to be implemented by the Member States, with due regard to Article 10 EC.¹¹² This decentralized way of implementation can cause significant divergences in the way effect is given to Community acts. This is not necessarily always a bad thing; bringing ‘local knowledge’ to bear on the implementation of decisions taken at a higher level can significantly enhance the chances of the measures in question achieving their effect, at least as long as the implementation stays within the bounds of the act to be implemented. A general legislative framework can thus be provided on the EU level, while Member State or sub-State levels provide the local knowledge necessary for proper implementation of the Community act in its context.¹¹³ This is in accordance with the spirit of one of the fundamental principles of the Community/Union: the principle of subsidiarity.¹¹⁴ Such divergence is, however, often not as welcome with regard to external relations as it might be with regard to internal matters. The predominant role of the Member States in the implementation of Community decisions notwithstanding, the Community institutions have a role to play in the implementation of their decisions, albeit that this role varies greatly depending on the policy area concerned. Particularly relevant here ¹⁰⁹ eg Case C-192/89 S. Z. Sevince v Staatssecretaris van Justitie [1990] ECR I-3461, paras 8–11. 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, paras 14–18. ¹¹⁰ Art 300(2), subpara 3 EC. ¹¹¹ cf 2001 Framework Agreement, para 4; 2005 Framework Agreement, para 20. ¹¹² Further on the implementation stage eg S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 76–82. ¹¹³ In general on ‘new governance’: G de Búrca and J Scott (eds), Law and New Governance in the EU and the US (2006). ¹¹⁴ In general on subsidiarity eg K Lenaerts and P Van Ypersele, ‘Le principe de subsidiarité et son contexte: étude de l’article 3 B du Traité CE’ (1994) 30 Cahiers de droit européen 3–85.

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is the contrast between internal and external policies regarding the involvement of the Commission. In internal matters, the role of the Commission is intermediate and mostly limited to the issuance of short-term regulations, for example with regard to the CAP. The Member States are responsible for all the implementation ‘on the ground’. This needs to be nuanced with regard to competition policy, in which the Commission is strongly involved in the actual implementation on the ground, as well as with regard to anti-dumping,¹¹⁵ in which it is more involved than in other internal matters, albeit less than regarding competition. In external relations, however, the Commission mostly plays a central role in ‘on the ground’ implementation regarding dedicated external relations competences. For example with regard to development cooperation, or programmes such as the Technical Aid to the Commonwealth of Independent States (TACIS), the Commission has people in the third country in question overseeing the implementation. If further implementation decisions on the Community level are required, the Council and the Commission,¹¹⁶ together with a panoply of committees, will do what is necessary. Especially the involvement of the committees through the so-called comitology procedures has sparked intense debates over the propriety of giving sometimes quite significant implementing powers to unelected committees, and on the impact of this delegated rulemaking on democratic accountability.¹¹⁷ This is not the place to add more ink to the oceans that have already flowed over these matters in recent years.¹¹⁸ ¹¹⁵ Further on anti-dumping: P Koutrakos, EU International Relations Law (2006) 331–357. ¹¹⁶ See Art 202, third indent EC, pursuant to which the Council can confer on the Commission powers for the implementation of the rules that the Council lays down. It may impose certain requirements regarding the exercise of these powers. It may also reserve the right, in specific cases, to exercise directly implementing powers itself. See Case C-403/05 Parliament v Commission [2006] OJ C10/14, in which the Commission was found to have exceeded the implementing powers conferred on it by Council Regulation (EEC) No 443/92 of 25 February 1992 on financial and technical assistance to, and economic cooperation with, the developing countries in Asia and Latin America [1992] OJ L52/1 (as amended by Council Regulation (EC) No 807/2003 of 14 April 2003 adapting to Decision 1999/468/EC the provisions relating to committees which assist the Commission in the exercise of its implementing powers laid down in Council instruments adopted in accordance with the consultation procedure (unanimity) [2003] OJ L122/36) by adopting the decision approving a project relating to the security of the borders of the Republic of the Philippines to be financed by budget line 19 10 02 in the general budget of the European Communities (Philippines Border Management Project, No ASIA/2004/016–924) (not published in the Official Journal of the European Union). The decision was accordingly annulled by the Court. ¹¹⁷ For an example, see the Opinion of Sharpston AG in Case C-345/06 Heinrich [2006] OJ C281/19. There, a list of objects that passengers are prohibited from taking on board aircraft drawn up by a regulatory committee were included in the unpublished annex to a Commission regulation. ¹¹⁸ See eg C Joerges, EU Committees: Social Regulation, Law and Politics (1999); K Lenaerts and A Verhoeven, ‘Comitologie en scheiding der machten. Enige kanttekeningen bij het Raadsbesluit van 28 juni 1999’ [2000] Sociaal-Economische Wetgeving 394–423; CF Bergström, Comitology: Delegation of Powers in the European Union and the Committee System (2005); Craig, EU Administrative Law (2006) 99–142. On delegated rule-making, including comitology: A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (2002)

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3.5 The Court of Justice in Community External Relations The Court has played a crucial role in the development of Community external relations through its case-law and its advisory opinions.¹¹⁹ Article 300(6) EC grants the European Parliament, the Council, the Commission, or a Member State the right to obtain the Opinion of the Court of Justice as to whether an agreement envisaged¹²⁰ is compatible with the provisions of the EC Treaty.¹²¹ That procedure is, according to the Court, ‘a special procedure of collaboration’ between the Court of Justice on the one hand and the other Community institutions and the Member States on the other whereby, at a stage prior to conclusion of an agreement capable of giving rise to a dispute concerning the legality of a Community act concluding, implementing or applying the agreement, the Court is called upon to ensure, in accordance with Article 220 EC, that in the interpretation and application of the Treaty the law is observed.¹²² Should the Opinion of the Court be adverse, the agreement envisaged may only enter into force in accordance with the procedure for Treaty-amendment as laid down by Article 48 EU. For example, in Opinion 2/94 Accession by 240–273. In general on good governance: C Joerges and R Dehousse (eds), Good Governance in Europe’s Integrated Market (2002). ¹¹⁹ Further: C Kaddous, Le droit des relations extérieures dans la jurisprudence de la Cour de justice des Communautés européennes (1998); cf P Allott, ‘Adherence To and Withdrawal From Mixed Agreements’ in D O’Keeffe and HG Schermers (eds), Mixed Agreements (1983) 98, who describes the Court of Justice as ‘the superego of the Community’. ¹²⁰ On the question from which point on an agreement becomes ‘envisaged’ for the purposes of Art 300(6) EC: Opinion 1/78 International Agreement on Natural Rubber [1979] ECR 2871, paras 34–35; Opinion 2/94 Accession by the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECR I-1759, paras 16–18; Opinion 1/75 [Draft Understanding on a Local Cost Standard drawn up under the auspices of the OECD] [1975] ECR 1355, 1361; Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267, para 12; cf S Karagiannis, ‘L’expression “accord envisagé” dans l’article 228 § 6 du traité CE’ (1998) Cahiers de droit européen 105–136; K Lenaerts, D Arts, and I Maselis, Procedural Law of the European Union (2006) 409– 410, paras 12-002–12-003. ¹²¹ cf Art 103 EURATOM: Agreements envisaged to be concluded by the Member States in the nuclear field are to be communicated to the Commission if they touch upon matters within the purview of the EURATOM Treaty. If the Commission objects to the conclusion of the agreement, the Member State may apply to the Court of Justice for a ruling. The conclusion of the agreement depends on the outcome of the ruling. The difference between the two procedures is that, while the subject of the Art 300(6) EC procedure is constitutional questions about the scope of the Community’s competence, the Art 103 EURATOM procedure is there to define the extent to which Member States are constrained in exercising their own competences to enter into international agreements: cf N Burrows and R Greaves, The Advocate General and EC Law (2007) 32–34. Further on Art 300(6) EC: P Koutrakos, EU International Relations Law (2006) 186–192; K Lenaerts, D Arts, and I Maselis, Procedural Law of the European Union (2006) 408–415, paras 12-001–12-016. The possibility of a preliminary Opinion would be maintained under Art 218(11) TFEU (cf Art III-325(11) TC). ¹²² Opinion 2/94 Accession by the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECR I-1759, para 6.

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the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms¹²³ the Court ruled that the Community could not accede to the European Convention on Human Rights¹²⁴ without amendment of the Treaties, thereby providing the necessary impetus for the drafters of the Treaty of Lisbon to insert a new Article 6(2) in the EU Treaty stating that the Union will accede to the European Convention on Human Rights.¹²⁵ According to the Rules of Procedure of the Court of Justice (RPCJEC), an Opinion may deal not only with the question whether the envisaged agreement is compatible with the provisions of the EC Treaty, but also with the question whether the Community or any Community institution has the power to enter into that particular agreement.¹²⁶ As the Court explained in Opinion 2/00 [Cartagena Protocol],¹²⁷ both the legal basis of the agreement and the vertical allocation of competences¹²⁸ are valid reasons to request the Court’s Opinion on an envisaged agreement.¹²⁹ The preliminary Opinion procedure is, however, not intended to solve difficulties associated with implementation of an envisaged agreement that falls within shared Community and Member State competence.¹³⁰ The purpose of obtaining the Court’s Opinion prior to concluding an international agreement is to avoid complications that would result from legal disputes concerning the compatibility with the EC Treaty of international agreements binding upon the Community.¹³¹ The Court is well aware that finding an agreement incompatible with the EC Treaty after it has entered into force, either by reasons of its content or of the procedure by which it was concluded, would provoke serious difficulties for the Community and for international relations in general, and could give rise to adverse consequences for all interested parties, including third countries.¹³² For the same reason, the Court finds that there is no jurisdiction to respond to a request for an Opinion after the international agreement in ¹²³ [1996] ECR I-1759. ¹²⁴ Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, 213 U.N.T.S. 221. ¹²⁵ See the identical Art I-9(2) TC. ¹²⁶ Art 107(2) RPCJEC. ¹²⁷ [2001] ECR I-9713. ¹²⁸ cf Opinion 1/75 [Draft Understanding on a Local Cost Standard drawn up under the auspices of the OECD] [1975] ECR 1355, 1360–1361; Opinion 1/78 International Agreement on Natural Rubber [1979] ECR 2871, para 30; Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work [1993] ECR I-1061, para 3; Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267, para 9. The jurisdiction of the Court to deliver an opinion on questions concerning the vertical division of competence to conclude a given agreement with non-Member States was most recently confirmed in 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, para 112. ¹²⁹ Opinion 2/00 [Cartagena Protocol] [2001] ECR I-9713, para 5. ¹³⁰ Ibid, para 17. ¹³¹ Opinion 1/75 [Draft Understanding on a Local Cost Standard drawn up under the auspices of the OECD] [1975] ECR 1355, 1360. ¹³² Ibid.

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question has been concluded,¹³³ which implies that the request for an Opinion under Article 300(6) EC does not have suspensory effect.¹³⁴ This does not prevent the State or Community institution that had requested the Opinion from bringing an action for annulment under Article 230 EC against the Council’s decision to conclude the agreement and, in that context, to apply for interim relief.¹³⁵ Conversely, the fact that the questions regarding to which the Court’s Opinion was asked could also have been raised by means of other remedies, in particular by bringing an action for annulment under Article 230 EC, does not constitute an argument which precludes the Court from being asked for a preliminary Opinion under Article 300(6) EC.¹³⁶ While the ratio legis of the Article 300(6) EC procedure was to enable the institutions and the Member States to obtain an authoritative statement on whether an envisaged agreement falls within the Community’s competence and whether the proper legal basis has been chosen, the Commission has in the past used the procedure to attempt to establish exclusive Community competence and disprove Member State competence. These attempts have had varying degrees of success.¹³⁷ Both in its case-law and in its Article 300(6) EC Opinions, the Court has developed approaches that are unique to the field of external relations, such as the extensive doctrine of implied external competences, as a logical correlate of the primacy principle. The Court’s approach in external relations has, however, also been distinctive in other ways. The fact that the Court has not been willing to consider a general effect on the internal market as a sufficient ground for implied exclusive external competences can be seen as a sign that the Court is less willing to apply its much-commented on teleological method of interpretation to EC external relations,¹³⁸ or at least not to the same extent. The Court’s tendency to interpret regulations establishing economic sanctions regimes not teleologically but literally inter alia because of the need for loyalty to the UN Security Council Resolution on which they are often based, points to the same conclusion.¹³⁹ The Court seems to be inclined to adopt a more cautious approach within the field of ¹³³ Opinion 3/94 GATT—WTO—Framework Agreement on Bananas [1995] ECR I-4577, paras 8–23. ¹³⁴ Opinion of Léger AG in Joined Cases C-317/04 and C-318/04 European Parliament v Council and Commission [2006] ECR I-4721, points 270 and 278. ¹³⁵ Case C-122/95 Germany v Council [1998] ECR I-973, para 42; Opinion 3/94 GATT— WTO—Framework Agreement on Bananas [1995] ECR I-4577, para 22. ¹³⁶ Opinion 2/92 Competence of the Community or one of its institutions to participate in the Third Revised Decision of the OECD on national treatment [1995] ECR I-521, para 14; Opinion 2/00 [Cartagena Protocol] [2001] ECR I-9713, para 12. ¹³⁷ P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 12. ¹³⁸ Ibid, 99–100 and 428. ¹³⁹ eg Case C-84/95 Bosphorus Hava Yollari Turizm ve Ticaret AS v Ministry for Transport, Energy and Communications, Ireland and the Attorney General [1996] ECR I-3953, and see also the Opinion of Jacobs AG, especially points 35–47. Cf P Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law (2001) 136–137; P Eeckhout, Does Europe’s Constitution Stop at the Water’s Edge? Law and Policy in the EU’s External Relations (2005) 9–12.

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external relations than it would arguably do with regard to internal Community policies. It certainly does not seem to be pursuing a ‘hidden agenda to transform the Community judicature into the ultimate adjudicator upon the international actions of the Member States’.¹⁴⁰ The Court of Justice appears to be sensitive to the political context of adjudicating on the vertical division of competences in external relations matters and particularly to the fact that third countries are often directly or indirectly affected by the Court’s decisions.¹⁴¹ This also seems to be the case with regard to judicial review of international agreements concluded by the Community, the extensive analysis of which exceeds the scope of this book.¹⁴² The Court’s circumspect approach with regard to Community external relations is not only manifest in its usually cautious technique of interpretation, but also in its apparent unwillingness to draw clear lines, especially with regard to the existence and nature of implied external competences. In the Open Skies judgments, for example, the Court gave the impression that it was specifically trying to avoid any further clarification or statement of principle. While this has positive aspects in the light of the need for flexibility in external relations and the development of Community law, the lack of precision in the Court’s reasoning regarding the existence and nature of implied external competences is also regrettable. It leads to a lack of legal certainty and predictability and can have unfortunate influences on future Treaty amendments, given that IGCs have often relied on the Court’s case-law when (re-)drafting Treaty provisions,¹⁴³ as is for example evident in the Treaty of Lisbon.¹⁴⁴

3.6 Conclusions This chapter has explored the differences between the operation of the Community method within EC external relations and its operation in internal policies. The contrasts are less pronounced with regard to autonomous foreign policy measures than with respect to international agreements. Both autonomous external measures and internal measures use the same legal instruments and the Commission’s role is essentially the same. The Parliament’s role in autonomous ¹⁴⁰ P Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law (2001) 149, commenting on the fact that no basis for such an extravagant interpretation can be found in Case C-177/95 Ebony Maritime SA and Loten Navigation Co Ltd v Prefetto della Provincia di Brindisi and others [1997] ECR I-1111, nor in any of the previous judgements on economic sanctions. ¹⁴¹ R Holdgaard, ‘The European Community’s Implied External Competence after the Open Skies Cases’ (2003) 8 Eur Foreign Affairs Rev 366. ¹⁴² In general eg I Cheyne, ‘International Instruments as a Source of Community Law’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 254–275; P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 226–273; P Koutrakos, EU International Relations Law (2006) 183–215. ¹⁴³ cf R Holdgaard, ‘The European Community’s Implied External Competence after the Open Skies Cases’ (2003) 8 Eur Foreign Affairs Rev 388–393. ¹⁴⁴ See ch 2.4.

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external measures, however, differs substantially depending on the policy in question. While the European Parliament is not formally involved at all in decision-making in the CCP, it is involved as the Council’s equal in development cooperation. With regard to international agreements, both the Commission and the Parliament see their roles greatly reduced compared with their role in internal policies. This can, for example, be illustrated by the role of the European Parliament with regard to international agreements that cover matters for which, internally, co-decision applies. Only when it is necessary for internal legislation made by co-decision to be amended does the Parliament need to give its assent to an international agreement. Otherwise the European Parliament merely needs to be consulted. In general, the signs of the sui generis nature of foreign policy-making within the EU/EC are unmistakable throughout the procedure for making international agreements. The Treaty provisions on external relations evolved from an ‘all-inone’ drafting style, whereby procedural and substantive aspects would be regulated in one and the same Article, to a clearer separation of these two aspects. The pre-Maastricht practice of completing the procedural aspects of the external relations competence by adding elements of the corresponding internal procedure for adopting measures in the same substantive area, proved to be quite a hindrance to effective foreign policy-making. For example, if the substantive legal basis demanded cooperation with the European Parliament, the latter could have two readings of the text and propose amendments. Although this might prima facie seem like a good thing, it proved very often to be a waste of time and resources. It has to be kept in mind that any amendment proposed by the European Parliament to a text negotiated by the Commission would have to be approved by the third country or international organization, with which the Community was trying to negotiate an agreement.¹⁴⁵ Even if the idea of the European Parliament imposing its will on the Community negotiators would sound like a good idea, the same Parliament imposing its will on third countries and international organizations would not. This shows that, no matter how well-intended internal measures to enhance democratic accountability might be, an entirely different dynamic plays on the international front. This is certainly not to say that internal democratic accountability is a non-starter for foreign policy measures.¹⁴⁶ As has been argued above, there seems to be room for more parliamentary involvement in treaty-making by the Community, especially with regard to the CCP. However, when judging the proper institutional structure within which matters that could potentially impact outside the territory of the EU/EC should be decided, regard should be had to the wider international context in which the EU/EC is operating. Concerns about democratic accountability should be central ¹⁴⁵ AA Dashwood, ‘The Attribution of External Relations Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 126. ¹⁴⁶ cf ch 5.1.

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in the evaluation of the internal structure of foreign policy-making, as well as in the evaluation of the external impact of the policy in question.¹⁴⁷ The only reference left to the substantive legal basis in the present Article 300 EC is to establish the rule by which the Council should vote. The individual legal bases in the Treaty establishing external competence in a specific field have also been drafted accordingly: they either contain a cross-reference to Article 300 EC¹⁴⁸ or no reference to any procedural aspect at all,¹⁴⁹ in which case Article 300 EC applies by default. The only exception to this is Article 111 EC.¹⁵⁰ This Article announces that it operates ‘by way of derogation from Article 300’ and establishes a complex procedural framework for making international agreements within the EMU-sphere. A somewhat parallel evolution has taken place with respect to internal Community law-making procedures: the drafting practice of cross-referencing in the Article providing the substantive legal bases to the Article containing the procedure. After the Treaty of Maastricht, Articles conferring competences that require the co-decision or cooperation procedure for the adoption of internal measures have just included a reference to ‘the procedure referred to in Article 251 [or 252]’. However, a significant difference remains between the techniques of competence attribution regarding internal competences and those regarding external competence: only regarding external competences is there a comprehensive codification of all procedural aspects: Article 300 EC. There is no equivalent provision regarding internal competences. This implies that every substantive legal basis in the Treaty will also have to indicate the procedure to be followed for law-making in that area, whereas regarding external competences, Article 300 EC applies even without an explicit cross-reference in the Article conferring substantive external competence.¹⁵¹ Regarding the role of the Court, the most significant contrast between internal and external matters, apart from its generally more circumspect approach to the latter, appears to be the specific procedure for a preliminary Opinion, as laid down in Article 300(6) EC. There is no similar procedure for determining in advance whether an internal proposal is in accordance with the EC Treaty. 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 relations. The Community cannot afford to conclude an agreement with third countries that will later be found to be infringing the EC Treaty. While a similar procedure would no doubt be helpful with regard to internal matters, the greater need for it in external matters seems to make the present system justifiable. ¹⁴⁷ cf KC Tan, Justice Without Borders: Cosmopolitanism, Nationalism and Patriotism (2004) 34, fn 33. ¹⁴⁸ cf Arts 170, 174(4), and 181 EC. ¹⁴⁹ Art 310 EC. ¹⁵⁰ cf AA Dashwood, ‘The Attribution of External Relations Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 126. ¹⁵¹ cf ibid, 127.

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4 The CFSP in Contrast with EC External Relations 4.1 Introduction This chapter is concerned with the application to the CFSP of the constitutional concepts, principles, and techniques that were examined in Part I in relation to EC external relations. The principle of conferral, the concepts of primacy and exclusivity, and the contrast between decision-making under Title V EU Treaty and the Community method are dealt with in successive sections. Although part of the contrast with the Community method, for convenience of presentation, the issues of democratic accountability and of the judicial control in the CFSP order form the subject of a separate Chapter 5.

4.2 Conferral 4.2.1 The EU Treaty In the current EU constitutional structure, there is a significant difference in the way competences are attributed within the CFSP as compared with the EC. The present Title V of the EU Treaty is characterized by an absence of the technique of detailed and specific attribution of competences,¹ so typical of the Community. Instead, the attribution in Title V consists of the grant of competence in Article 11(1) EU for the Union to ‘define and implement’ a CFSP ‘covering all areas of foreign and security policy’ pursuing the objectives listed there. Article 11(1) EU is further supplemented for the ESDP by Article 17(1)–(2) EU. When looking for the equivalent of Article 11 EU in the EC Treaty, it would have to be Articles 2–4 EC, which contain a list of Community tasks. These can, however, not serve as a legal basis for specific action in the field in question. Legal bases can mostly be found in Part Three of the EC Treaty, where competences are conferred on the basis of detailed provisions. ¹ The corollary of the principle of conferral: cf AA Dashwood, ‘The Relationship Between the Member States and the European Union / European Community’ (2004) 41 CML Rev 357 et seq.

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Article 11(1) EU might inspire two prima facie impressions, both of them misleading. First, the wording of Article 11(1) EU might give the impression that it contains a full-blown cession of all external relations competences from the Member States to the EU. The discussion of the CFSP decision-making procedure will, however, show that this is clearly not the case. Secondly, the impression is given that the entire field of foreign relations falls under the CFSP. This would, however, seem to clash fundamentally with the framework of EU external relations that presently fall under the Community. This reflects the dual question on division of competences with regard to the scope of the CFSP. The vertical question of how foreign policy competences are divided between the Union and the Member States is addressed in this section on the principle of conferral, while the management of the vertical axis will be analysed in Chapter 7. The horizontal question of delineation between the areas of EU external relations falling within the CFSP and those falling within other parts of the Union’s constitutional framework will be touched upon only briefly in this section and will be analysed further in Chapter 8. The CFSP objectives play an important role in determining the scope of the horizontal and vertical attribution.² Formulating common objectives for the Union’s external relations is also a necessary step towards developing an external identity. Legally, the objectives, as defined by Article 11(1) EU and further elaborated by Article 17(1)–(2) EU, determine the scope of the Union’s CFSP competence and are of great importance in the interpretation of the EU.³ Article 11(1) EU lays down the following objectives for the CFSP:⁴ • to safeguard the common values, fundamental interests, independence and integrity of the Union⁵ in conformity with the principles of the United Nations Charter;⁶ • to strengthen the security of the Union in all ways; • to preserve peace and strengthen international security, in accordance with the principles of the United Nations Charter, as well as the principles of the Helsinki Final Act⁷ and the objectives of the Paris Charter,⁸ including those on external borders; • to promote international cooperation; • to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms. ² See also RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 50; E Denza, The Intergovernmental Pillars of the European Union (2002) 130. ³ Article 31 of the Vienna Convention on the Law of Treaties 23 May 1969, UN Doc. A/Conf.39/27; 1155 UNTS 331; 8 ILM 679 (1969); 63 AJIL 875 (1969). ⁴ Further: RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 59–69; cf M Trybus, European Union Law and Defence Integration (2005) 61–64. ⁵ As to whether this refers to the territorial integrity of the Union: P Koutrakos, EU International Relations Law (2006) 389–391. ⁶ The phrase ‘in conformity with the principles of the United Nations Charter’ is not significant from an international legal point of view: see Art 103 United Nations Charter. ⁷ Conference on Security and Co-operation in Europe Final Act, Helsinki, 1975. ⁸ Charter of Paris for a New Europe, Paris 1990.

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These develop the general objectives of the Union, as laid down in Article 2 EU,⁹ in particular the second objective, viz ‘to assert its identity on the international scene, in particular through the implementation of a common foreign and security policy including the progressive framing of a common defence policy, which might lead to a common defence, in accordance with the provisions of Article 17’.¹⁰ In terms of competences to achieve these objectives, the EU Treaty does not provide anything more specific. Instead, the EU Treaty defines the legal instruments that the EU has at its disposal to further CFSP objectives, and develops a specific set of CFSP decision-making procedures. Both the specific instruments and the procedures will be examined below. Article 17(1) EU supplements Article 11(1) EU by defining the scope of the ESDP: the CFSP includes all questions relating to the security of the Union. These questions include the ‘progressive framing of a common defence policy, which might lead to a common defence, should the European Council so decide’.¹¹ Should the European Council take a decision to that effect it will recommend to the Member States that they adopt such a decision in accordance with their respective constitutional requirements.¹² The ESDP and any measures adopted pursuant to it will be without prejudice to both ‘the specific character of the security and defence policy’ of certain Member States and the obligations of certain Member States within the framework of NATO.¹³ This ⁹ cf K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 864, para 20-039. ¹⁰ cf EU Treaty preamble: ‘RESOLVED to implement a common foreign and security policy including the progressive framing of a common defence policy, which might lead to a common defence in accordance with the provisions of Article 17, thereby reinforcing the European identity and its independence in order to promote peace, security and progress in Europe and in the world’; for an analysis of the relevance of the EU Treaty preamble for the CFSP: RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 51–54. ¹¹ In the Treaty of Maastricht, this sounded as follows: ‘the eventual framing of a common defence policy, which might in time lead to a common defence’: Art B, second indent and Art J.4(1); further: A Collet, ‘Le Traite de Maastricht et la Defense’ (1993) 29 Revue trimestrielle de droit européen 225–233. ¹² This avoids having to go through the normal procedure for amendment of the Treaty (Art 48 EU). The reasons for this are symbolic rather than practical, as the approval by the Member States in accordance with their own constitutional requirements is likely to be as cumbersome as an amendment of the Treaty. However, contrary to the Art 48 EU procedure, Art 17(1) EU enables the Union to amend its structure by itself: DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 40. On the somewhat shady distinction between ‘common defence policy’ and ‘common defence’: ibid, 40–44. ¹³ Art 17(1), para 2 and 17(3) EU. Further on EU-NATO relations: Washington Summit Communiqué Issued by the Heads of State and Government participating in the meeting of the North Atlantic Council in Washington, D.C. on 24th April 1999, NATO Press Release NACS(99)64 of 24 April 1999; EU-NATO Declaration on ESDP, NATO Press Release (2002) 142 of 16 December 2002. In general: Presidency Conclusions of the Santa Maria da Feira European Council, 19 and 20 June 2000, Annex I, Appendix 2; Presidency Conclusions of the Nice European Council, 7, 8, and 9 December 2000, Annex VII to Annex VI; Presidency Conclusions of the Brussels European Council, 24 and 25 October 2002, paras 18–23 and Annex II; Presidency Conclusions of the Brussels European Council, 17 and 18 June 2004, para 64 and Annex. See Council Decision 2003/211/CFSP of 24 February 2003 concerning the conclusion of the Agreement between the European Union and the North Atlantic Treaty Organisation on the Security of Information

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provision not only protects the position of Member States that are NATO members, but equally of neutral and non-aligned Member States.¹⁴ The Member States will also cooperate—to the extent they consider appropriate—in the field of armaments to support the progressive framing of the common defence policy.¹⁵ Article 17(2) EU provides for the core area of the ESDP, namely the so-called ‘Petersberg tasks’.¹⁶ The WEU Member States in their ‘Petersberg Declaration’ showed readiness to make available military units from the whole spectrum of their conventional armed forces for military operations conducted under WEU-authority.¹⁷ A non-exhaustive list of military tasks that the WEU could contribute to was identified:¹⁸ Apart from contributing to the common defence in accordance with Article 5 of the Washington Treaty[¹⁹] and Article V of the modified Brussels Treaty [²⁰] respectively, military units of WEU member States, acting under the authority of WEU, could be employed for:

• humanitarian and rescue tasks; • peacekeeping tasks; • tasks of combat forces in crisis management including peacemaking. [2003] OJ L80/35. Cf A Kintis, ‘NATO-WEU: An Enduring Relationship’ (1998) 3 Eur Foreign Affairs Rev 537–562; F Schimmelfennig, The EU, NATO and the Integration of Europe: Rules and Rhetoric (2003); DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 148–149, 153, 155, and 172 et passim. ¹⁴ Austria, Ireland, and Sweden. This protection is reaffirmed by New Art 42(2), para 2 EU (cf Art I-41(2), para 2 TC); see DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 63–65. ¹⁵ Art 17(1), para 3 EU. ¹⁶ Formulated by the WEU Ministerial Council on 19 June 1992, at the ‘Grandhotel Petersberg’, at Königswinter, near Bonn; see, however, R Gosalbo Bono, ‘Some Reflections on the CFSP Legal Order’ (2006) 34 CML Rev 349, fn 28, emphasizing that the tasks described in Art 17(2) EU cannot be equated with the ‘Petersberg Tasks’, as great uncertainty exists with regard to the scope of the latter. ¹⁷ Petersberg Declaration, Western European Union, Council of Ministers, Bonn, 19 June 1992, 6, para 2. ¹⁸ Ibid, para 4. ¹⁹ North Atlantic Treaty, 34 UNTS 243; 43 AJILs 159. Art 5 provides: ‘The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area. Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.’ ²⁰ Treaty for Collaboration in Economic, Social, and Cultural Matters, and for Collective SelfDefense (Brussels Treaty), 19 UNTS 51; 43 AJILs 59, amended by the 1954 Paris Agreements Protocol. Art V provides: ‘If any of the High Contracting Parties should be the object of an armed attack in Europe, the other High Contracting Parties will, in accordance with the provisions of Article 51 of the Charter of the United Nations, afford the Party so attacked all the military and other aid and assistance in their power.’

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The three specified activities have come to be known as the ‘Petersberg tasks’ and are as such literally included in Article 17(2) EU as forming part of the ESDP. However, the ESDP is not limited to the ‘Petersberg tasks’ as enumerated in Article 17(2) EU,²¹ and presently also includes conflict prevention and the fight against terrorism.²² Does the broad attribution of competence by way of objectives mean that the principle of conferral does not apply to the CFSP? That would be going too far. While the principle of conferral is not explicitly mentioned in the EU Treaty,²³ it is still a principle of the law of international organizations,²⁴ and it is a general organizing principle of the Union as a whole.²⁵ Hence, while not being very detailed or exact, the CFSP objectives determine the Union’s competences to the extent that any CFSP action must be connected to those objectives, in accordance with the principle of conferral. However, detailed and specific attribution of competences is an important corollary of the principle of conferral as it operates under the Community, and the absence of this in Title V of the EU Treaty indicates that the principle applies in a different sense in the CFSP legal order.²⁶ By contrast, objectives for the Community’s external relations were conspicuously absent from the EEC Treaty. This reinforced the focus on competences instead of objectives, and hence contributed to the turf battles with regard to the horizontal and the vertical division of competences.²⁷ However, in introducing the CFSP and its objectives-centred approach, the Treaty of Maastricht also added objectives for Community external relations, especially with regard to development cooperation. While the formulation of objectives has thus ‘spilledover’ from the CFSP into Community external relations, the same can hardly be said about the competences-centred Community approach into the CFSP. As argued above, the most significant particularity with regard to the operation of the principle of conferral in EC external relations is the doctrine of ²¹ The phrasing of Art 17(2) EU (‘shall include’) indicates that the enumeration is exemplative rather than exhaustive. ²² cf DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 45–47. Th is extension has been incorporated in New Art 43(1) EU (cf Art III-309(1) TC). ²³ Art 5 EU can, however, be seen as an expression of the principle of conferral: see the Opinion of Mengozzi AG in Case C-354/04 P Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti v Council [2007] ECR I-1579 and Case C-355/04 P SEGI, A. Zubimendi Izaga, A. Galarraga v Council [2007] ECR I-1657, point 167. ²⁴ Jurisdiction of the European Commission of the Danube Between Galatz and Braila [1927] PCIJ Series B.– No 14, 64; cf J Klabbers, An Introduction to International Institutional Law (2002) 63–67. In general: D Sarooshi, International Organizations and Their Exercise of Sovereign Powers (2005). ²⁵ See, however, R Gosalbo Bono, ‘Some Reflections on the CFSP Legal Order’ (2006) 34 CML Rev 358–359, who doubts whether the principle of conferral applies to the CFSP. ²⁶ On the different types of conferral of competences by states on international organizations: D Sarooshi, International Organizations and Their Exercise of Sovereign Powers (2005) 28–107. ²⁷ P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 138.

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implied competences. While not specifically mentioned in the EU Treaty, it is applicable to the EU Treaty by virtue of international law. In international law as in Community law, implied competences should always stay clearly within the bounds of the attributed competences. However, the nature of the attribution in Title V would seem to leave virtually no scope for implied competences. The objectives are so broad that an unselfconscious application of the principle of implied competences implying all the competences needed to achieve the CFSP objectives would lead to an extensive grant of foreign policy competences going far beyond what the Treaty intends. It would appear that the ESDP is the area of the CFSP in which tasks have most clearly been identified and hence competences have most clearly been attributed. This situation would seem to be confirmed by the Treaty of Lisbon with respect to what would be called the CSDP.²⁸ The ESDP in this respect comes closer to the Community way of competence attribution than the rest of the CFSP. As will be argued, the looser manner in which general CFSP competences have been attributed can be explained by the fact that the Member States remain firmly in control of the entire decision-making process. The slightly stricter attribution with regard to the ESDP could probably be explained by the sensitivity of defence-matters and by the fact that the Member States regard any aspect of defence as belonging to the core of their sovereignty.

4.2.2 ‘All areas’ and the vertical and horizontal questions What to make of the phrase in Article 11(1) EU that the CFSP covers all areas of foreign and security policy? A prosaic legal historical interpretation of the phrase has been suggested: the CFSP’s predecessor, the EPC, was specifically restricted to the economic aspects of security,²⁹ and the drafters of the Treaty of Maastricht might just have wished to indicate that the CFSP was not restricted in the same manner. While this would provide an explanation for the imprecise attribution, it does not solve the vertical and horizontal questions. Answering the vertical question is not made any easier by the absence of a list of criteria to define those areas deemed to be within the scope of the CFSP on the vertical axis, though the Member States’ Ministers of Foreign Affairs at Lisbon in 1992 did attempt to draw up such a list. The result of this effort, however, ended up in a report without legal force, adopted by the European Council at Lisbon as opposed to in the Treaty or in a protocol. The Ministers of Foreign Affairs agreed that it is possible to list certain factors determining important common interests ²⁸ cf P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 163, referring to the Constitution. ²⁹ G Burghardt and G Tebbe, ‘Die Gemeinsame Aussen- und Sicherheitspolitik der Europäischen Union—Rechtliche Struktur und politischer Prozess’ (1995) 30 Europarecht 7; RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 59.

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and that these and other factors should be taken into account in defining the issues and areas for joint action. The following criteria were put forward:³⁰ • the geographical proximity of a given region or country; • an important interest in the political and economic stability of a region or country; • the existence of threats to the security interests of the Union. These criteria can be identified as essentially an attempt to apply the principle of subsidiarity to the CFSP. Why did the Member States not solve the vertical question more clearly with regard to the CFSP, as they had done for the first pillar? Why is the technique of specific and detailed attribution absent in the second pillar? Arguably, this is so because the Member States felt no need to reign in the Union’s competences as the entire CFSP constitutional structure is set up to leave the Member States in control of the process and able to prevent the Union from ‘running wild’. Another explanation might be found in that it would be impossible a priori to describe in detail all the foreign policy actions that might be necessary to preserve peace and strengthen the security of the Union and international security.³¹ Is the attribution in Articles 11(1) and 17 EU more useful for answering the horizontal than it appears to be for the vertical question? Dashwood seems to suggest that it is.³² The objectives listed in Article 11(1) EU taken as a whole seem to indicate that the CFSP covers all political, security, and defence aspects of the Union’s external relations, but not their economic, social, and environmental aspects. Moreover, from the absence in Title V of a qualification similar to the one in Article 29 EU with regard to Title VI,³³ it could be deduced a contrario that CFSP action is assumed to be compatible with EC external relations.³⁴ It is indeed probable that the EU Treaty drafters intended the CFSP to cover all political, security, and defence aspects of EU foreign policy. However, the text of Article 11(1) EU does not unequivocally exclude other aspects of foreign policy. For example, the objective mentioned in Article 11(1), 5th indent EU, viz ‘to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms’ is equally a general objective of Community ³⁰ Report to the European Council in Lisbon on the likely development of the Common Foreign and Security Policy (CFSP) with a view to identifying areas open to joint action vis-à-vis particular countries or groups of countries, adopted by the European Council at Lisbon on June 26th and 27th 1992, para 12. For an analysis: S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 164–172. ³¹ AA Dashwood, ‘Article 47 and the relationship between first and second pillar competences’, in AA Dashwood and M Maresceau (eds), Law and Practice of EU External Relations: Salient Features of a Changing Landscape (forthcoming (2008)). ³² Ibid. ³³ ‘Without prejudice to the powers of the European Community . . . ’. ³⁴ AA Dashwood, ‘Article 47 and the relationship between first and second pillar competences’, in AA Dashwood and M Maresceau (eds), Law and Practice of EU External Relations: Salient Features of a Changing Landscape (forthcoming (2008)).

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development policy,³⁵ and of Community economic, financial, and technical cooperation with third countries.³⁶ The objectives listed in Article 11(1) EU, while significantly qualifying the ‘all areas’ phrase,³⁷ therefore still fall short of a conclusive demarcation of the CFSP from EC external relations. The absence of a qualification in Title V of the EU Treaty similar to the one in Article 29 EU indeed raises questions. One could conjecture that the drafters might have thought that the likelihood of conflict between Title VI of the EU Treaty and Community competences was greater, given that both essentially cover ‘home affairs’. The CCP is of course an essential aspect of foreign policy, but it is also an external continuation of the Community’s internal policies and, as such, according to the Community paradigm, a purely technical policy separate from ‘high politics’.³⁸ If the assumption that ‘high politics’ can be clearly separated from other aspects of foreign policy was taken as a starting point, it is not surprising that the drafters of the EU Treaty decided it was not necessary to include in Title V of the EU Treaty a specific qualification such as in Article 29 EU. However, this does not necessarily diminish the likelihood of conflicts between EC external relations and the CFSP in practice. Moreover, the EU Treaty does include a specific recognition of the possibility of conflict between the EU Treaty and the EC Treaty, namely Article 47 EU. All this can be illustrated by looking at the Small Arms and Light Weapons case,³⁹ which will be further analysed in Chapter 8.

4.2.3 The Constitution and the Treaty of Lisbon The general CFSP conferral under the Treaty of Lisbon would be less precise due to the deletion of specific CFSP objectives: the price to pay for overall objectives for EU foreign policy.⁴⁰ CSDP (as the ESDP has been re-baptized) conferral would, however, gain somewhat in precision, and its sui genericity within the CFSP would therefore be further emphasized. The provisions of the Treaty of Lisbon defining the scope of the Union’s foreign policy in general and its defence policy in particular are a rather curious oscillation between restrained realism and bold idealism. On the one hand, the familiar words of Article 17 EU can be found in New Article 24(1) EU,⁴¹ defining the scope of the CFSP as covering ‘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’. New Article 42(2) EU,⁴² ³⁵ Art 177(2) EC. ³⁶ Art 181a(1), subpara 2 EC. ³⁷ While the ‘all areas’ reference and the CFSP objectives were in different paragraphs in the original Art J.1 EU, the Treaty of Amsterdam combined the two in Art 11(1) EU and thereby clarified the qualifying function of the objectives; cf AA Dashwood, ‘Article 47 and the relationship between first and second pillar competences’, in AA Dashwood and M Maresceau (eds), Law and Practice of EU External Relations: Salient Features of a Changing Landscape (forthcoming (2008)). ³⁸ ch 6.4. ³⁹ Case C-91/05 Commission v Council [2005] OJ C115/10. ⁴⁰ New Art 21 EU (cf Art III-292 TC). ⁴¹ See the identical Art I-16(1) TC. ⁴² See the identical Art I-41(2) TC.

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however, would provide that the CSDP will include the progressive framing of a common Union defence policy. ‘This will lead to a common defence, when the European Council, acting unanimously, so decides.’⁴³ The Article continues by stating what the consequences of such a decision by the European Council would be: the European Council ‘will then recommend to the Member States the adoption of a decision to that effect in accordance with their respective constitutional requirements’. Not much legal significance should therefore be attached to the phrase ‘will lead to a common defence’, which should be understood as an aspirational statement of a purely political nature.⁴⁴ It certainly does not contain a legal obligation for the Member States to establish a common defence: an obligation whose scope is left to the discretion of the obligated, the latter’s will constituting a legally recognized condition for existence of the duty, does not constitute a legal obligation.⁴⁵ The Union would⁴⁶ be able to use the civil and military assets for which the CSDP would provide the operational capacity outside the Union for peacekeeping, conflict prevention, and strengthening international security in accordance with the principles of the Charter of the United Nations.⁴⁷ These tasks include⁴⁸ ‘joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation’. All those tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.⁴⁹ The scope of this enumeration goes considerably further than the original Petersberg tasks, and explicitly mentions tasks that the Union had begun to take on board, such as conflict prevention and the fight against terrorism.⁵⁰ The different natures of conferral in the first and second pillars can be further illustrated by the problems encountered by the Treaty of Lisbon’s classification of competences covering the entire spectrum of Union activities. ⁴³ Emphases added. ⁴⁴ Similarly on the Constitution M Cremona, ‘The Draft Constitutional Treaty: External Relations and External Action’ (2003) 40 CML Rev 1359. ⁴⁵ H Lauterpacht, The Function of Law in the International Community (1933) 189. It lacks one of the basic tenets of a legal obligation: the will to be bound. This principle dates back to Roman Law: T Mommsen (ed.), Digesta: Digesta Seu Pandecta Justiniani Augusti (1870) XXXXV.1.108, 667: ‘Nulla promissio potest consistere, quae ex voluntate promittentis statum capit.’; see R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (1996) 722; cf Judge Sir Hersch Lauterpacht’s Separate Opinion in the Case of Certain Norwegian Loans (France v. Norway) [1957] ICJ Reports 9, 48–55 and his Dissenting Opinion in the Interhandel Case (Switzerland v. United States of America) (Preliminary Objections) [1959] ICJ Reports 6, 106. ⁴⁶ Pursuant to New Art 42(1) EU (see the identical Art I-41(1) TC). ⁴⁷ 26 June 1945, 59 Stat. 1031; TS 993; 3 Bevans 1153. ⁴⁸ Note that this enumeration shares with the current Art 17(2) EU its non-exhaustive character. ⁴⁹ New Art 43(1) EU (cf Art III-309(1) TC). ⁵⁰ DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 47 and 247.

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The Treaty of Lisbon would attempt to retain the specific nature of CFSP competences, but would do so in a confusing way. None the less, by leaving the CFSP competences in the EU Treaty, separate from almost all other substantive policies in the Treaty on the Functioning of the European Union, there is certainly less scope for confusion than there was under the Constitution. Apart from the three general categories of Union competences listed in Article 2,⁵¹ the Treaty on the Functioning of the European Union would also list two types of competences that appear each to relate to specific fields of activity: (i) the competence of the Union to promote and coordinate the economic and employment policies of the Member States;⁵² and (ii) the competence of the Union ‘to define and implement a common foreign and security policy, including the progressive framing of a common defence policy’.⁵³ This latter category suggests that the CFSP competences of the Union are not intended to fall within any of the three general categories listed in Article 2 TFEU. It has been argued that it is difficult to see what kind of competence the CFSP could be, if it does not belong to one of the main categories.⁵⁴ Cremona pointed out regarding the Constitution that the definition of shared competence in Article I-12(2) TC⁵⁵ contained the concept of pre-emption⁵⁶ and that the Convention did not want to incorporate that particular Community law concept into the CFSP, even though the example of development cooperation and humanitarian aid illustrates that it is possible to categorize a competence as shared while at the same time excluding pre-emption.⁵⁷ The CFSP might also have fitted into the category of competences of the Union to carry out actions to support, coordinate, or supplement the actions of the Member States. However, as Cremona rightly observes, this would fail to reflect the desire that the Union should develop its own CFSP that goes beyond merely supplementing or co-coordinating the actions of the Member States. It has, however, also been argued that, notwithstanding the fact that the Convention did not attach CFSP competences to one of the categories of Articles I-13, I-14, and I-17 TC,⁵⁸ Article I-14(1) TC⁵⁹ implies that CFSP competences (alongside the competence of the Union to promote and coordinate the economic and employment policies of the Member States) belong to the residual ⁵¹ cf Art I-12 TC. ⁵² Art 2(3) TFEU (cf Art I-12(3) TC). It is not clear how this competence differs from the general competences of the Union to ‘carry out actions to support, coordinate or supplement’ Member States’ actions (Art 2(5) TFEU (cf Art I-12(5) TC)): see, as regards the Constitution, M Cremona, ‘The Draft Constitutional Treaty: External Relations and External Action’ (2003) 40 CML Rev 1353. ⁵³ Art 2(4) TFEU (cf Art I-12(4) TC). ⁵⁴ M Cremona, ‘The Draft Constitutional Treaty: External Relations and External Action’ (2003) 40 CML Rev 1353–1354. ⁵⁵ cf Article 2(2) TFEU. ⁵⁶ ‘The Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence’ in the Constitution’s version, and ‘The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence’ in the Treaty on the Functioning of the European Union’s version. ⁵⁷ Art 4(4) TFEU and the identical Art I-14(4) TC. ⁵⁸ cf Arts 3, 4, and 6 TFEU. ⁵⁹ cf Art 4(1) TFEU.

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category of shared competences, with all the consequences this implies, including pre-emption.⁶⁰ There is indeed something odd about the text of what would be Article 4(1) TFEU:⁶¹ ‘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’. It seems to imply that only exclusive competences and competences of the Union to carry out actions to support, coordinate or supplement the actions of the Member States would fall outside the category of shared competences. Why does Article 2 TFEU⁶² then list the competences of Article 5 TFEU and New Article 23 EU⁶³ as separate categories? The way CFSP competences operate can be considered as belonging to a regime of ‘shared competences’ sensu lato between Union and Member States.⁶⁴ However, the Convention’s decision to create separate categories of competence evidences the fact that CFSP competences cannot be considered as ordinary instances of shared competences. As Craig puts it: ‘The legal consequences of inclusion within the general category of shared competence, set out in Article I-11(2) [DTC] [⁶⁵] do not capture the reality of the divide between EU and Member State power in . . . the CFSP, as is apparent from the detailed provisions . . . in Pts I and III of the Constitution.’⁶⁶ Moreover Declarations 13 and 14, attached to the Final Act to the Treaty of Lisbon, would seem to make it fairly clear that the intension of the drafters was to deny the CFSP pre-emptive effect.⁶⁷ However, this does not make the meaning of Article 4(1) TFEU any clearer. Could this be a mere drafting error, which the 2004 IGC failed to identify and the 2007 IGC did not properly fi x?⁶⁸ The Treaty of Lisbon’s (and the Constitution’s) attempt to provide clarity in the jungle of different types of competences within EU law was doubtless well-intentioned, but has overshot its goal.⁶⁹ Foreign policy provides a good example of the difficulty of devising a clear categorization of competences that ⁶⁰ K Lenaerts, JM Binon, and P Van Nuffel, ‘L’Union européenne en quête d’une Constitution: bilan des travaux de la Convention sur l’avenir de l’Europe’ (2003) 11 Journal des tribunaux droit européen 292. ⁶¹ And similarly cf Art I-14(1) TC. ⁶² cf Art I-12 TC. ⁶³ cf Arts I-15 and I-16 TC, respectively. ⁶⁴ cf B De Witte, ‘The Constitutional Law of External Relations’ in I Pernice and M Poiares Madouro (eds), A Constitution for the European Union: First Comments on the 2003-Draft of the European Convention (2003) 98; P Craig, ‘Competence: clarity, conferral, containment and consideration’ (2004) 29 ELR 333. ⁶⁵ Which became Art 12(2) TC (text amended), which in turn became Art 2(2) TFEU. ⁶⁶ P Craig, ‘Competence: clarity, conferral, containment and consideration’ (2004) 29 ELR 333. ⁶⁷ These declarations both broadly provide that the CFSP (including the CSDP) will not affect the responsibilities of the Member States, as they currently exist, for the formulation and conduct of their foreign policy. ⁶⁸ Art I-16 TC on the specific category of CFSP competences has been deleted, but this still leaves the attribution of CFSP competences in Art 2(4) TFEU (cf Art I-12(4) TC). ⁶⁹ cf on the Constitution P Craig, ‘Competence: clarity, conferral, containment and consideration’ (2004) 29 ELR 326, doubting the utility of ascribing particular subject-matters to each of the heads of competence, ‘on the ground that it will lead to undue rigidity and generate more confusion than it resolves’.

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works across the entire field of the Union’s policies. Development cooperation, humanitarian aid, and the CFSP provide clear illustrations of this point. They can be situated in the broad category of non-exclusive competences of the Union. In the categorization used above with regard to the Community’s external competences, development cooperation and humanitarian aid would fall within the category of parallel competences, which does not exist in the categorization of competences that would be introduced by the Treaty on the Functioning of the European Union. The latter would regard them as shared competences, but with the explicit exclusion of pre-emption by Article 4(4) TFEU.⁷⁰ Due to its peculiar technique of attribution, it was obvious that the CFSP would frustrate any attempt to devise an easily understandable and transparent categorization of competences. The drafters of the Constitution and the Treaty of Lisbon came up with the rather inelegant solution of creating a sui generis category of CFSP competences. The broad categorization that would be introduced by the Treaty on the Functioning of the European Union, therefore, would not work for an increasingly important aspect of the Union’s action: its external relations and role ‘in the wider world’. Devising a better solution is not easy. The drafters could perhaps have proposed only two categories: exclusive competences on the one hand, and non-exclusive competences on the other. It would then have been possible to introduce further refinements in the latter category. Is not one of the most important insights a well-intentioned reader has to gain from the Treaty on the Functioning of the European Union that the category of non-exclusive competences is far greater in scope than that of exclusive competences? By introducing these two basic categories, and then adding further distinctions and refinements with regard to the category of non-exclusive competences, the Treaty of Lisbon could have had its cake and eaten it. It could have provided a basic transparency that would be obvious to anyone taking a quick peak at the Treaty on the Functioning of the European Union: the small category of exclusive competences; and the large category of non-exclusive competences. It could, however, at the same time have provided further accuracy, by allowing sub-categorizations, such as the distinction between concurrent competences and parallel competences under the broad heading of ‘non-exclusive competences’.

4.3 CFSP Decision-Making Compared with the Community Method 4.3.1 Introduction The specific legal instruments developed for taking autonomous action in the CFSP sphere will be considered first. As will be recalled, the legal instruments for ⁷⁰ See the identical Art I-14(4) TC.

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autonomous measures in the field of EC external relations are identical to those for internal measures; in contrast, to meet the needs of the mostly executive action taken under Title V of the EU Treaty, separate legal instruments had to be provided. The CFSP decision-making process for autonomous action and for entering into international agreements under Article 24 EU will then be analysed, and compared with that of the Community. Finally, the specific arrangements for the implementation of CFSP acts will be considered.

4.3.2 CFSP legal instruments for autonomous action 4.3.2.1 Introduction Article 12 EU lists the means available to the Union to achieve the objectives of the CFSP as defined by Article 11 EU: • • • • •

principles of and general guidelines for the CFSP; common strategies; joint actions; common positions; systematic cooperation between Member States in the conduct of policy.

The three types of legal instruments there identified (common strategies, joint actions, and common positions) are each briefly analysed below. The ‘principles of and general guidelines for’ the CFSP and ‘systematic cooperation between Member States in the conduct of policy’, not being legal instruments sensu stricto,⁷¹ are not considered here.

4.3.2.2 Common strategies The Treaty of Amsterdam introduced common strategies, thereby codifying the existing practice of taking cross-pillar EU actions with regard to certain geographically defined areas. However, common strategies are in principle not limited to the latter circumstances.⁷² They are to be decided upon by the European Council for implementation by the Union ‘in areas where the Member States have important interests in common’.⁷³ ⁷¹ Similarly: E Denza, The Intergovernmental Pillars of the European Union (2002) 134–136; P Koutrakos, EU International Relations Law (2006) 394; cf DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 96–97, who rightly argues that ‘principles of and general guidelines for the common foreign and security policy’ are not envisaged as ‘stand-alone CFSP decisions’. Rather, they are intended as programmatic texts to be implemented by the Council, the Presidency, the High Representative for the common foreign and security policy (HRCFSP), the Commission or the Member States pursuant to Arts 18, 19, 21, 26, and 27 EU. ⁷² E Denza, The Intergovernmental Pillars of the European Union (2002) 291–292. ⁷³ Art 13(2) EU.

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A common strategy should contain the following information: • its objectives; • its duration; • the means to be made available by the Union and the Member States. The Council has the power to recommend common strategies to the European Council and is charged with implementing them, in particular through joint actions and common positions.⁷⁴ Common strategies have been adopted with regard to Russia,⁷⁵ the Ukraine,⁷⁶ and the Mediterranean Region.⁷⁷ They exemplify the difficulties involved in drawing sharp distinctions between first and second pillar external relations. Peers takes the position that common strategies should observe the horizontal division of competences and stay within the second pillar.⁷⁸ However, it seems that for common strategies to stand a chance of fulfilling their purpose of setting broad strategic outlines for the EU’s foreign policy, they must be—at least to some extent—cross-pillar.⁷⁹ Legal instruments implementing common strategies often have to be adopted under all three pillars, as well as by the Member States, as is evident from an analysis of the common strategies already adopted.⁸⁰ Common strategies have suffered from a generally bad press. In a confidential report for the General Affairs Council of January 2001, the HRCFSP, Dr Solana, argued that common strategies were mostly purely rhetorical in character and ⁷⁴ Art 13(3) EU. ⁷⁵ Common Strategy 1999/414/CFSP of the European Union of 4 June 1999 on Russia [1999] OJ L157/1. The period of application of this common strategy was extended to 24 June 2004 by Common Strategy 2003/471/CFSP of the European Council of 20 June 2003 amending Common Strategy 1999/414/CFSP on Russia in order to extend the period of its application [2003] OJ L157/68; see C Hillion, ‘Common Strategies and the Interface Between E.C. External Relations and the CFSP: Lessons of the Partnership Between the E.U. and Russia’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 287–301. ⁷⁶ European Council Common Strategy 1999/877/CFSP of 11 December 1999 on Ukraine [1999] OJ L331/1. The period of application of this common strategy was extended to 23 December 2004 by Common Strategy 2003/897/CFSP of the European Council of 12 December 2003 amending Common Strategy 1999/877/CFSP on Ukraine in order to extend the period of its application [2003] OJ L333/96. ⁷⁷ Common Strategy 2000/458/CFSP of the European Council of 19 June 2000 on the Mediterranean region [2000] OJ L183/5. This common strategy expired, in accordance with its Art 36, on 23 July 2004. However, the European Council subsequently adopted Decision 2004/763/ CFSP of the European Council of 5 November 2004 amending Common Strategy 2000/458/CFSP on the Mediterranean region in order to extend the period of its application [2004] OJ L337/72, which extended the period of application of the common strategy to 23 January 2006. Further: C Spencer, ‘The EU and Common Strategies: The Revealing Case of the Mediterranean’ (2001) 6 Eur Foreign Affairs Rev 31–51. For an analysis of all three common strategies: E Denza, The Intergovernmental Pillars of the European Union (2002) 140–143. For an extensive analysis of the common strategies with regard to Russia and the Ukraine, arguing that they have only marginally contributed to coherence of the Union’s policy: C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 182–193. ⁷⁸ S Peers, ‘Common Foreign and Security Policy’ (2001) 20 YEL 540. ⁷⁹ See, however, ch 8.4. ⁸⁰ See E Denza, The Intergovernmental Pillars of the European Union (2002) 290–292.

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descriptive of already existing CFSP instruments.⁸¹ While this may be so, from the perspective of the countries or regions that are the subject of a common strategy, an overview of the general policy objectives and instruments in force or in preparation may be seen as helpful. Common strategies may also facilitate the coordination of implementing decisions.⁸² A feature of common strategies is that all decisions, be they joint actions, common positions, or any other type of decisions intended to implement common strategies can be adopted by QMV in the Council.⁸³ The primary purpose for the introduction of common strategies at Amsterdam may have been to square the institutional circle and provide for an instrument that has to be adopted by unanimity, thereby consoling the ‘intergovernmentalists’, and at the same time allows implementation by QMV, thereby consoling the ‘supranationalists’.⁸⁴ However, it appears that common strategies have in practice been abandoned, as the Council has ceased adopting them. A reason for this might be the Member States’ wish to avoid being committed to decision-making by QMV after the adoption of a common strategy. Hix notes ‘frustration with the vagueness’ of common strategies as the reason for the Council’s not having adopted a single one since 2000.⁸⁵ The fact that the Council feels no need to adopt any more common strategies would seem to be quite a strong indication of their having become an irrelevance.⁸⁶

4.3.2.3 Joint actions Joint actions are defined in Article 14 EU as addressing specific situations where operational action by the Union is deemed to be required. Each joint action has to contain the following information: • • • • •

its objectives; its scope; the means to be made available to the Union; if necessary its duration; the conditions for its implementation.

⁸¹ See Evaluation Report by the HRCFSP on Common strategies doc. 114871/00 of 26 January 2001, and the Joint report by the HRCFSP and the Commission on the effectiveness of Common Strategies doc. 5607/02 of 23 January 2002 submitted to the Council in January 2003, unpublished, cited in R Gosalbo Bono, ‘Some Reflections on the CFSP Legal Order’ (2006) 34 CML Rev 364, fn 77. ⁸² E Denza, The Intergovernmental Pillars of the European Union (2002) 292–293. ⁸³ Art 23(2) EU. ⁸⁴ Similarly: S Peers, ‘Common Foreign and Security Policy 1997’ (1997) 17 YEL 546; AA Dashwood, ‘External Relations Provisions of the Amsterdam Treaty’ in D O’Keeffe and P Twomey (eds), Legal Issues of the Amsterdam Treaty (1999) 212; P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 405–406. ⁸⁵ S Hix, The Political System of the European Union (2005) 391. ⁸⁶ For a thorough analysis of common strategies: P Koutrakos, EU International Relations Law (2006) 394–399, also concluding that they ‘have become largely irrelevant’.

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The objectives and principles governing the joint action can be reviewed by the Council in case of a ‘change in circumstances having a substantial effect on a question subject to joint action’. This is an echo of the rebus sic stantibus doctrine present in many national laws of obligation, and equally in international law, where it was enshrined in Article 62 Vienna Convention on the Law of Treaties.⁸⁷ It is, however, no more than an echo, because unlike under the rebus sic stantibus doctrine, a fundamental change of circumstances cannot be a reason for a Member State not to perform its obligation flowing from a joint action.⁸⁸ Even if such a change should occur, the joint action remains valid as long as the Council has not acted.⁸⁹ In cases of imperative need arising from changes in the situation, Member States may take the necessary measures ‘as a matter of urgency having regard to the general objectives of the joint action’. A Member State taking action under these circumstances has to inform the Council immediately of any such measures.⁹⁰ Provision has also been made for when a Member State runs into serious difficulties when implementing a joint action. The Member State in question has to refer these problems to the Council, which will discuss them and ‘seek appropriate solutions’. Such solutions must, however, not run counter to the objectives of the joint action, nor impair its effectiveness.⁹¹ Apart from this possibility for the Member States to take independent action, joint actions commit the Member States in the positions they adopt and in the conduct of their activity.⁹² In other words, the Member States must adapt their national foreign policies to joint actions and are not allowed to take any action that runs counter to an adopted joint action.⁹³ Moreover, whenever a Member State decides to implement a joint action by adopting a national position or taking national action, the Member State in question must provide information in time to allow for prior consultations within the Council should this be necessary. This obligation does not apply to measures that are merely a national transposition of Council decisions.⁹⁴ The EU Treaty says nothing about whether joint actions bind the other EU institutions. Initially, joint actions were, as required by the Treaty of Maastricht, always based on European Council guidelines,⁹⁵ but this was gradually abandoned in practice,⁹⁶ and the wording of the EU Treaty was changed by the Treaty of Amsterdam so as to break this link. ⁸⁷ See I Brownlie, Principles of Public International Law (2003) 595–-597; M Shaw, International Law (2003) 855–858; M Bossuyt and J Wouters, Grondlijnen van internationaal recht (2005) 101–102. ⁸⁸ Similarly: RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 157. ⁸⁹ Art 14(2) EU. ⁹⁰ Art 14(6) EU. ⁹¹ Art 14(7) EU. ⁹² Art 14(3) EU. ⁹³ See also RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 155–156. ⁹⁴ Art 14(4) EU. ⁹⁵ Art J.3(1) of the Treaty of Maastricht. ⁹⁶ RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 119.

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Anyone reading the language of the EU Treaty on joint actions would be rather surprised at the practical uses they have been put to. It might have been thought that what distinguishes joint actions from common strategies and common positions, is the emphasis on ‘action’. Th is evokes the image of the EU organizing a décente sur les lieux somewhere in the world, of not just words but deeds. However, when glancing at the joint actions adopted to date, one wonders what would be needed to lose the name of action. The areas covered⁹⁷ range from support for democratic transition and democratic processes through election monitoring,⁹⁸ and the establishment of international institutes and centres with legal personality,⁹⁹ to full-blown joint police actions¹⁰⁰ or military operations.¹⁰¹ It appears that any possible external action short of the direct creation of rights and duties for citizens can potentially be taken by way of a joint action.¹⁰² This raises the issue of the legislative or non-legislative character of CFSP instruments. Are joint actions legislative? Not in the sense that they are capable of directly creating rights and obligations for citizens. None the less, joint actions may impose obligations for the Member States to take certain legislative actions.¹⁰³ A clear example of a joint action that may be regarded as at least ‘quasilegislative’ is the joint action establishing the EDA.¹⁰⁴ However, it matters little whether joint actions are categorized as being legislative in abstracto or not. The important issue is that the wide scope and impact of joint actions should give ⁹⁷ For a more complete overview: RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 162–169; P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 403–404; P Koutrakos, EU International Relations Law (2006) 401–402. ⁹⁸ eg Joint Action 98/735/CFSP of 22 December 1998 adopted by the Council on the basis of Article J.3 of the Treaty on European Union in support of the democratic process in Nigeria [1998] OJ L354/1. ⁹⁹ eg Council Joint Action 2001/554/CFSP of 20 July 2001 on the establishment of a European Union Institute for Security Studies [2001] OJ L200/1. ¹⁰⁰ eg Council Joint Action 2004/847/CFSP of 9 December 2004 on the European Union Police Mission in Kinshasa (Democratic Republic of Congo) regarding the Integrated Police Unit (EUPOL ‘Kinshasa’) [2004] OJ L367/30. ¹⁰¹ eg Council Joint Action 2004/570/CFSP of 12 July 2004 on the European Union military operation in Bosnia and Herzegovina [2004] OJ L252/10. ¹⁰² P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 404. ¹⁰³ eg Joint Action 96/668/CFSP of 22 November 1996 adopted by the Council on the basis of Articles J.3 and K.3 of the Treaty on European Union concerning measures protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom [1996] OJ L309/7, in particular Art 1; See also Joint Action 97/817/CFSP of 28 November 1997 adopted by the Council on the basis of Article J.3 of the Treaty on European Union, on anti-personnel landmines [1997] OJ L338/1; further: RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 167–169. ¹⁰⁴ Council Joint Action 2004/551/CFSP of 12 July 2004 on the establishment of the European Defence Agency [2004] OJ L245/17; other examples are Council Joint Action 2001/554/CFSP, Council Joint Action 2001/555/CFSP of 20 July 2001 on the establishment of a European Union Satellite Centre [2001] OJ L200/5, and Council Joint Action 2005/575/CFSP of 18 July 2005 establishing a European Security and Defence College (ESDC) [2005] OJ L194/15.

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pause for thought over their democratic accountability and their compatibility with the rule of law.

4.3.2.4 Common positions Common positions, as Article 15 EU specifies, ‘define the approach of the Union to a particular matter of a geographical or thematic nature’. The Member States are under an obligation to ensure that their national policies conform to the common positions adopted under the CFSP.¹⁰⁵ They are also obliged to uphold the ‘common positions’ in international organizations and at international conferences;¹⁰⁶ and in cases where not all the Member States are represented in a certain international organization or at a certain international conference, the Member States that do take part are equally under an obligation to uphold the ‘common positions’.¹⁰⁷ However, it is arguable that the term ‘common position’ is used in Article 19(1) EU in a wider sense than in Article 15 EU. This would seem to be confirmed by the Treaty of Lisbon’s substitution of ‘the common positions’ by ‘the Union’s positions’ in the first paragraph of what will become New Article 34 EU. The difference between common positions and joint actions has been blurred in practice.¹⁰⁸ Joint actions seem to emphasize actions over words, but have been taken as much to define political positions of the Union as to provide the framework for international action. Certain differences can, however, be noted. Common positions are never used for some forms of action, namely those involving expenditure and transfers, the sending of missions, and the establishment of institutes or centres.¹⁰⁹ Moreover, practice seems to have become more coherent since the Treaty of Nice, with the great majority of joint actions being used either to organize ESDP operations or to provide financial or other assistance. The contrast between joint actions and common positions in this regard can be illustrated by comparing Council Joint Action 2007/185/CFSP of 19 March 2007 on support for OPCW [Organisation for the Prohibition of Chemical Weapons] activities in the framework of the implementation of the EU Strategy against Proliferation of Weapons of Mass Destruction¹¹⁰ with Council Common Position 2007/469/CFSP of 28 June 2007 relating to the 2008 Review Conference of the ¹⁰⁵ Art 15 EU. ¹⁰⁶ Art 19(1) EU. ¹⁰⁷ Art 19(1), subpara 2 EU. ¹⁰⁸ Further: RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 125–130 and 322; cf P Koutrakos, EU International Relations Law (2006) 403. ¹⁰⁹ P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 404. For an overview of the use common positions have been put to: RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 175–182; cf R Gosalbo Bono, ‘Some Reflections on the CFSP Legal Order’ (2006) 34 CML Rev 344–345, who suggests that although under the EU Treaty legal order as conceived at Maastricht, joint actions were not clearly distinguishable from common positions, in practice, joint actions would imply that Member States share the resources needed to carry out an operational action, while common positions would limit themselves to defining the position of the Union in relation to an event or a situation. ¹¹⁰ [2007] OJ L85/10.

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Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC).¹¹¹ While the former contains an authorization of financial contributions for projects in support of the activities of the OPCW,¹¹² the latter provides that the objective the Union wishes to pursue in the Second Review Conference is ‘to strengthen the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC), in particular by promoting compliance with the CWC, including the timely destruction of all chemical weapons, and by enhancing its verification regime and striving for universality’.¹¹³ The remarks with respect to the possible legislative nature of joint actions can be repeated with regard to common positions, as well as the concerns with regard to democracy and the rule of law.¹¹⁴

4.3.2.5 Sui generis instruments The Council is free to take ‘decisions’, issue declarations or statements, or put forward its views on international situations in a form not specified in the EU Treaty, but not prohibited by it either.¹¹⁵ Decision-making has also been known to happen through instruments such as a ‘decision of the representatives of the Governments of the Member States, meeting within the Council’.¹¹⁶ ¹¹¹ [2007] OJ L176/39. ¹¹² Arts 1 and 2 of Council Joint Action 2007/185/CFSP. ¹¹³ Art 1 of Council Common Position 2007/469/CFSP. Cf similarly the relationship between Council Joint Action 2006/184/CFSP of 27 February 2006 in support of the Biological and Toxin Weapons Convention in the framework of the EU Strategy against the Proliferation of Weapons of Mass Destruction [2006] OJ L65/51 and Council Common Position 2006/242/CFSP of 20 March 2006 relating to the 2006 Review Conference of the Biological and Toxin Weapons Convention [2006] OJ L88/65. See the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, 10 April 1972, 1015 UNTS 163; ILM 309 (1972). ¹¹⁴ For an example of common positions having substantial consequences for the Community, the Member States, and individuals, see the following common positions on combating terrorism: Council Common Position 2001/930/CFSP of 27 December 2001 on combating terrorism [2001] OJ L344/90; Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism [2001] OJ L344/93 (at issue in Case C-354/04 P Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti v Council [2007] ECR I-1579 and Case C-355/04 P SEGI, A. Zubimendi Izaga, A. Galarraga v Council [2007] ECR I-1657: see further ch 5.2.2); Council Common Position 2005/725/CFSP of 17 October 2005 updating Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and repealing Common Position 2005/427/CFSP [2005] OJ L272/28. ¹¹⁵ cf AA Dashwood, ‘External Relations Provisions of the Amsterdam Treaty’ in D O’Keeffe and P Twomey (eds), Legal Issues of the Amsterdam Treaty (1999) 212–213. ¹¹⁶ eg Decision 2006/881/CFSP of the Representatives of the Government of the Member States, meeting within the Council of 30 November 2006 adapting Decision 96/409/CFSP on the establishment of an emergency travel document, in order to take account of the accession of Bulgaria and Romania to the European Union [2006] OJ L363/422; cf K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 806, para 18-018.

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The sui generis instruments used most often are ‘declarations’,¹¹⁷ which cannot be regarded as having a legally binding character. Decisions are also used to implement joint actions or common positions. The EU Treaty does, however, occasionally refer to ‘decisions’ without specifying the exact nature of the legal instrument concerned. For example, Article 13(3) EU provides for the Council to take the ‘decisions’ necessary for defining and implementing the CFSP on the basis of the general guidelines defined by the European Council. Article 23(2) EU also mentions a category of ‘decisions’ used to implement common strategies, joint actions, and common positions, without further specifying the legal nature of such decisions. A comparison of the use of the term ‘decisions’ in these two Articles leads one to conclude that, even within the EU Treaty, the term is not used consistently to denote one category of legal instruments. While Article 23(2) EU’s use of the term ‘decisions’ is clearly meant to denote a type of legal instruments distinct from joint actions and common positions, the same can plainly not be said with regard to Article 13(3) EU. The legal effects of such sui generis decisions remain unclear.¹¹⁸ CFSP decisions of the Council are generally given a CFSP number and are published in the legislative series of the Official Journal. One could infer from this that the Council regards them as legally binding.¹¹⁹ The ESDP has been developed mainly through a particular kind of sui generis instruments, namely reports attached to Presidency Conclusions. The Member States have opted not to incorporate the organizing principles and concepts of the ESDP into formal CFSP legal instruments, although they could very well have done so,¹²⁰ for example by way of a common position or a joint action. This choice was not value-neutral. Presidency Reports are written in diplomatic language and, as normative instruments, are not sufficiently differentiated from policy positions that easily evolve over time. There is also no rule to resolve conflicts between different Presidency texts of the subsequent European Councils.¹²¹ With regard to the latter, the principle of lex posterior derogat priori could be used purely as a guideline.¹²² ¹¹⁷ See RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 109–112, and on the legal status of CFSP declarations: ibid, 185–189; M Smith, Europe’s Foreign and Security Policy: The Institutionalization of Cooperation (2004) 194. ¹¹⁸ In general on the legal effects of decisions of international organizations: CF Amerasinghe, Principles of the Institutional Law of International Organizations (2005) 160–216. ¹¹⁹ E Denza, The Intergovernmental Pillars of the European Union (2002) 149. ¹²⁰ AA Dashwood, ‘Issues of Decision-making in the European Union after Nice’ in AM Arnull and D Wincott (eds), Accountability and Legitimacy in the European Union (2002) 35. ¹²¹ Ibid, 35–36. ¹²² cf DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 122, who argues that ‘one is forced to conclude that the Conclusions simply encapsulate the “present state of play” and mean no more and no less than the European Council intends them to mean. As intentions are protean, the proper construction to be applied shifts.’

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The legal status and effects of the Presidency Conclusions are not mentioned in the EU Treaty and remain shrouded in uncertainty,¹²³ as does the difference in legal status between the Presidency Conclusions sensu stricto on the one hand, and that of declarations, Presidency Reports or documents appended to the Conclusions on the other hand.¹²⁴ The extraordinary role of the European Council in the ESDP will be further analysed below. Could New Article 26 EU,¹²⁵ which would require the European Council to ‘adopt the necessary decisions’, be interpreted as precluding the European Council from using anything else but decisions? This would have the advantage of providing a clearer indication of which parts of the Presidency Conclusions actually do and which do not contain substantive decisions.¹²⁶ It is, however, unclear whether the Member States would follow this interpretation. Under the current EU constitutional structure, the Presidency Conclusions continue to contain substantive and important decisions. The Presidency Conclusions of the Brussels European Council of 14 December 2007, for example, affirm ‘the EU’s readiness to assist Kosovo in the path towards sustainable stability, including by an ESDP mission and a contribution to an international civilian office as part of the international presences’ and invite the General Affairs and External Relations Council ‘to determine the modalities for the mission and when to launch it’.¹²⁷ It should also be borne in mind that under international law unilateral declarations may, under certain circumstances, bind the international legal person making them, through the operation of the principles of good faith and estoppel.¹²⁸ It cannot a priori be excluded that CFSP declarations may, given the appropriate set of circumstances, meet the criteria for the creation of such obligations under international law vis-à-vis third countries or international organizations.¹²⁹ ¹²³ On the legal nature of Presidency Conclusions in the field of the ESDP: DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 125–136. ¹²⁴ cf ibid, 118–119 and 122–124, who also asks whether there is any difference between ‘adopting’, ‘approving’ or ‘welcoming’ of a Presidency Report by the European Council. ¹²⁵ cf Art I-40(3) TC. ¹²⁶ cf DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 274 (referring to Art I-40(3) TC). ¹²⁷ Presidency Conclusions of the Brussels European Council, 14 December 2007, para 70. See Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO [2008] OJ L42/92, which refers to these Presidency Conclusions in recital (7). ¹²⁸ eg Nuclear Tests Case (Australia v. France) [1974] ICJ Reports 253, paras 43–45 and 49–51. On the applicability of this principle to the Union/Community: M Koskenniemi, ‘International Law Aspects of the Common Foreign and Security Policy’ in M Koskenniemi (ed.), International Law Aspects of the European Union (1998) 31; J Vanhamme, Volkenrechtelijke beginselen in het Europees recht (2001) 42, fn 98. In general: eg I Brownlie, Principles of Public International Law (2003) 612–615; M Shaw, International Law (2003) 114–115; M Bossuyt and J Wouters, Grondlijnen van internationaal recht (2005) 128–138; D Sarooshi, International Organizations and Their Exercise of Sovereign Powers (2005) 21, fn 10. ¹²⁹ cf RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 193–197.

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4.3.2.6 Enforceability The possible enforceability of CFSP legal instruments within the Member States’ legal orders will be examined in Chapter 6, section 2.

4.3.2.7 Legal instruments for the CFSP under the Constitution and the Treaty of Lisbon Pursuant to the Laeken Declaration’s¹³⁰ call for simplification, the Constitution would have introduced a new list of legal instruments: European laws, European framework laws, European regulations, European decisions, recommendations, and opinions.¹³¹ The only one of these that would have been available in CFSP matters, replacing common strategies, common positions, and joint actions, is the European decision.¹³² The Treaty of Lisbon has not kept the new legal instruments that would have been introduced by the Constitution. Instead, Article 288 TFEU, an amended version of Article 249 EC, would introduce the traditional Community legal instruments as a common set of legal instruments for the Union. The only legal instrument available for the CFSP would be a ‘decision’, which would be used to define ‘actions to be undertaken by the Union’ and ‘positions to be taken by the Union’.¹³³ New Articles 24(1) and 31(1) EU would explicitly exclude the adoption of legislative acts in the CFSP. ‘Arrangements for the implementation’ of decisions in the CFSP sphere would also have to be taken by way of decisions,¹³⁴ since these would be the only legal instruments available. The European Parliament would have the right to participate in the establishment of control measures for the supervision of implementing acts adopted by the Council, including within the sphere of the CFSP.¹³⁵ ¹³⁰ Declaration on the Future of the European Union adopted by the European Council at Laeken, 14–15 December 2001. ¹³¹ Art I-33 TC. ¹³² Art I-33(1), para 5 TC defines a European decision as ‘a non-legislative act, binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them’. Art I-40(3) and (6) TC mentions European decisions as the only legal instrument available for the CFSP, and Art I-40(6) TC explicitly excludes European Laws and Framework Laws from the CFSP. However, sui generis instruments such as declarations or resolutions would still have been available under the Constitution, pursuant to Art III-294(3)(c) TC. Cf DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 274. ¹³³ New Art 25 EU, which would also allow for sui generis instruments such as declarations or resolutions (para (c)). ¹³⁴ The exception can be found in the possibility of adopting economic sanctions on the basis of a CFSP decision. The competence to adopt such sanctions falls within what is presently the first pillar and a decision within the sphere of the CFSP providing for the ‘interruption or reduction, in part or completely, of economic and financial relations with one or more third countries’, would be implemented by the adoption by the Council (by QMV) of the necessary measures, on a joint proposal from the HRUFASP and the Commission (Art 215(1) TFEU; cf Art III-322 TC). Under the current Treaties, these measures are taken by way of a regulation. ¹³⁵ Art 291(3) TFEU (cf Art I-37(3) TC, which did not contain an explicit reference to the European Parliament. See M Dougan, ‘The Convention’s Draft Constitutional Treaty: bringing

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It is questionable whether the attempt to simplify the legal instruments available in CFSP matters by unifying them under the name of ‘decision’ would attain its goal. Common strategies, common positions, and joint actions would continue to exist, but under the same designation of decision, which is, as it is under the current EC Treaty, also used in many other very different fields. Cremona observed on the Constitution, which brought together the existing CFSP legal instruments under the name ‘European decision’: ‘An attempt to simplify what is inherently complex can lead to ambiguity and lack of transparency.’¹³⁶ The remark remains valid with respect to the Treaty of Lisbon.

4.3.2.8 Concluding remarks on CFSP legal instruments When one considers the current CFSP legal instruments, it seems that none of them envisage legislative action in a direct way like regulations, or in an indirect way, by aiming to harmonize Member State legislation, in the manner of directives. Eeckhout remarks that it is striking that the Union is asked to develop a CFSP without having the capacity to legislate in the matter.¹³⁷ This touches upon one of the central elements of the sui generis nature of foreign policy. Dashwood argues that conduct of foreign policy is an entirely different activity from the norm-creating and norm-applying the Union mostly does: ‘Foreign, security and defence policy is about determining objectives, and then deploying, in furtherance of those objectives, assets typically comprising, as the case may be, diplomatic influence (including membership of the UN Security Council), intelligence resources and military resources.’¹³⁸ This specificity of foreign policy-making is not unique to the Union. Indeed, it is questionable whether there would be much Member State legislation to be harmonized if the EU would attempt to do so.¹³⁹ The CFSP therefore operates from a ‘realist bias’: ‘Instead of laying down substantive obligations or directives for policy, it provides procedural avenues for Parties to channel their interests at common objectives, facilitating coordinated response and dividing competences.’¹⁴⁰ It would be stating Europe closer to its lawyers?’ (2003) 28 ELR 787, who argued that it was unclear whether the involvement of the European Parliament was an intended consequence under the Constitution). ¹³⁶ M Cremona, ‘The Draft Constitutional Treaty: External Relations and External Action’ (2003) 40 CML Rev 1357; B De Witte, ‘The Constitutional Law of External Relations’ in I Pernice and M Poiares Madouro (eds), A Constitution for the European Union: First Comments on the 2003Draft of the European Convention (2003) 99. ¹³⁷ P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 142. ¹³⁸ AA Dashwood, ‘The Relationship Between the Member States and the European Union/ European Community’ (2004) 41 CML Rev 365; also E Denza, The Intergovernmental Pillars of the European Union (2002) 30. ¹³⁹ cf M Smith, Europe’s Foreign and Security Policy: The Institutionalization of Cooperation (2004) 58–59. ¹⁴⁰ M Koskenniemi, ‘International Law Aspects of the Common Foreign and Security Policy’ in M Koskenniemi (ed.), International Law Aspects of the European Union (1998) 29.

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the obvious to say that this approach does not always lead to the most forceful or clear policy measures. Koskenniemi put it rather more colourfully and likened a common position on East Timor¹⁴¹ to ‘the declaration of a Student Union meeting 25 years ago’.¹⁴² As argued, however, some joint actions do contain obligations for the Member States to take legislative action or to harmonize their legislations, and therefore bear a distinct resemblance to such legislative instruments as a Community directive, and a growing number of common positions have substantial consequences not only for the Community and the Member States, but also for individuals.¹⁴³ None the less, foreign policy-making still seems to be largely conducted through executive measures, rather than through legislation.¹⁴⁴ This is, however, a factual claim, rather than a normative statement. It is indeed true that foreign policy is not as easily susceptible to legislative instruments setting out patterns of international behaviour over a longer period, given the scarcity of information about global affairs and the need to preserve flexibility in the face of changing circumstances.¹⁴⁵ However, this does not mean that no legislative measures whatsoever are possible with regard to foreign policy. Having said that, the existing CFSP legal instruments are specifically adapted to the purpose of making executive decisions legally binding,¹⁴⁶ and are thus a function of the particularity of the CFSP as it stands.

¹⁴¹ Common Position 96/407/CFSP of 25 June 1996 defined by the Council on the basis of Article J.2 of the Treaty on European Union, concerning East Timor [1996] OJ L168/2. ¹⁴² M Koskenniemi, ‘International Law Aspects of the Common Foreign and Security Policy’ in M Koskenniemi (ed.), International Law Aspects of the European Union (1998) 32. ¹⁴³ chs 4.3.2.3 and 4.3.2.4. ¹⁴⁴ cf K Lenaerts and D Gerard, ‘The structure of the Union according to the Constitution for Europe: the emperor is getting dressed’ (2004) 29 ELR 312, fn 37; R Gosalbo Bono, ‘Some Reflections on the CFSP Legal Order’ (2006) 34 CML Rev 379. For a diagnosis of the reasons for this dominance of the executive in foreign relations: P Allott, Eunomia: New Order For a New World (2001) 279, paras 15.45 et seq, especially paras 15.47–15.48 and P Allott, ‘European Foreign Policy: After-Life of an Illusion’ in M Koskenniemi (ed.), International Law Aspects of the European Union (1998) 216, paras 4 et seq; cf D Sarooshi, International Organizations and Th eir Exercise of Sovereign Powers (2005) 15, who remarks that conferrals of competence by States on international organisations ‘often affect, arguably even undermine, the separation of powers within States’, since the executive represents the State in the organization when decisions are being made ‘concerning the use of powers that may otherwise have been the prerogative of the legislature’. ¹⁴⁵ M Smith, ‘Implementation: Making the EU’s International Relations Work’ in C Hill and M Smith (eds), International Relations and the European Union (2005) 155. ¹⁴⁶ cf the Opinion of Mazák AG in Case C-203/07 P Greece v Commission [2007] OJ C155/10, point 62: ‘The provisions of [Title V of the EU Treaty] give rise to rights and obligations governed by international law’. Further on the legally binding nature of CFSP legal instruments: C Hillion and RA Wessel, ‘Restraining External Competences of EU Member States under CFSP’ in M. Cremona and B. De Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (forthcoming (2008)).

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4.3.3 CFSP decision-making 4.3.3.1 Introduction The contrast with the Community method of decision-making lies more particularly in the predominance of the institutions in which the Member States are directly represented, namely the European Council and the Council. In the Community sphere, with only a few exceptions, nothing can happen unless the Commission takes the initiative. Proposals are prepared by the Commission, which also has the main responsibility for any implementing measures that may be necessary at Community level. By contrast, the formal distinction between the preparation and the adoption of Council measures is unknown to the CFSP. Moreover, the Council, its Presidency and various Council bodies have the lead in implementing adopted measures. Th is has made it necessary to equip the Council with a new infrastructure specially designed for the development and implementation of policy in the sphere of the CFSP.¹⁴⁷ This analysis of CFSP decision-making is structured as follows. The enhanced role of the European Council is treated first. This is followed by an examination of the decision-making process, with regard to autonomous measures and then with regard to international agreements. Finally, the unique set of arrangements for implementing CFSP measures is considered.

4.3.3.2 An enhanced role for the European Council The European Council under the EU Treaty Both formally and in the political practice that has developed, the European Council is involved in CFSP/ESDP policy formation more systematically than under the EC Treaty. The European Council is charged formally by the EU Treaty with defining the principles and guidelines for the CFSP, including for matters with defence implications,¹⁴⁸ and with deciding on common strategies in areas where the Member States have important interests in common.¹⁴⁹ Its practical involvement is evidenced by the Presidency Conclusions of successive European Council meetings. These show that most of such meetings¹⁵⁰ devote considerable time to foreign ¹⁴⁷ cf AA Dashwood, ‘Issues of Decision-making in the European Union after Nice’ in AM Arnull and D Wincott (eds), Accountability and Legitimacy in the European Union (2002) 33–36. ¹⁴⁸ Art 13(1) EU. In general on the development of the European Council: DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 109–114. ¹⁴⁹ Art 13(2) EU. ¹⁵⁰ Including, it appears, most of the so-called Spring European Councils, which are in theory mostly devoted to socio-economic matters.

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policy issues, a fact reflected in common positions and joint actions, which regularly refer to Presidency Conclusions.¹⁵¹ As regards the ESDP, the European Council has become involved not only in setting general guidelines, but in the development of a detailed policy framework.¹⁵² Following the St. Malo Declaration by France and the UK in December 1998, which provided among other things that ‘the Union must have the capacity for autonomous action, backed up by credible military forces’, the German Presidency of the first half of 1999 issued a ‘Presidency Report on strengthening of the Common European Policy on Security and Defence’, which was approved by the 1999 Cologne European Council.¹⁵³ The latter also invited the incoming Finnish Presidency to continue work with a view to a further report to the Helsinki European Council.¹⁵⁴ This set a precedent for the further development of the ESDP through Presidency papers, which are discussed in the relevant Council bodies and culminate in a semestrial Report from the Presidency on the ESDP; this is endorsed by the European Council and annexed to the Presidency Conclusions. While the political logic may be clear, there is no legal basis in the EU Treaty for this extraordinary role of the European Council.¹⁵⁵ Article 17(1) EU cannot be relied on, except through a manifestly contra legem construction. Nor can the activities of the European Council be described as merely issuing guidelines within the meaning of Article 13(3) EU, given that the European Council has on numerous occasions taken important decisions independently of the Council. Deriving an implied competence from the Stuttgart Declaration or from European Council Practice seems equally implausible.¹⁵⁶ The Member States, however, have not seemed concerned by this ever since the St. Malo Declaration. The European Council under the present constitutional framework also lacks properly adopted and published rules of procedure. It can only take decisions by common accord, does not keep detailed records of its proceedings, and excludes national policy experts from its debates. Its role in decision-making, especially in the enactment of detailed and specific rules, should therefore be kept to a minimum. The extent of the decision-making competences attributed to the European Council creates problems of a logistical nature, distorts the institutional balance, and is mostly unnecessary.¹⁵⁷ There is also a problem of transparency. Preparation ¹⁵¹ P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 409–410. ¹⁵² cf P Koutrakos, EU International Relations Law (2006) 391–392. ¹⁵³ Presidency Conclusions of the Cologne European Council, 3 and 4 June 1999, Annex III; on St. Malo and Cologne: M Trybus, European Union Law and Defence Integration (2005) 93–97. ¹⁵⁴ Presidency Conclusions of the Cologne European Council, 3 and 4 June 1999, para 55. ¹⁵⁵ DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 101–109. ¹⁵⁶ cf ibid, 114–115, who also considers Arts 6(4) or 12, 5th indent EU as possible legal bases, only to reject them instantly. ¹⁵⁷ cf AA Dashwood, ‘Decision-Making at the Summit’ (2000) 3 CYELS 79–105.

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of European Councils is a responsibility of the Presidency, which may escape the usual Council process, especially in ESDP matters. The European Council and its full-time President under the Treaty of Lisbon The Treaty of Lisbon would bring the European Council within the overall EU institutional framework.¹⁵⁸ Of importance for making the dichotomy between EC external relations and the CFSP less marked is that the European Council would have the power to set overall objectives and determine strategic interests for the Union’s foreign policy as a whole; ie not only in CFSP matters (as is already the case under the EU Treaty),¹⁵⁹ but also on other aspects of foreign policy.¹⁶⁰ It would do so by way of decisions, unanimously adopted on a recommendation from the Council. Both the High Representative of the Union for Foreign Affairs and Security Policy (HRUFASP) (on CFSP matters) and the Commission (on other aspects of foreign policy), or both jointly,¹⁶¹ would be able to submit proposals to the Council. The dual role of the European Council with regard to the Union as a whole, and for the Union’s foreign policy in particular, illustrates the intense intermingling between external relations of a society and its fundamental self-image and identity.¹⁶² Also relevant for foreign policy is that the European Council would elect a fulltime President, by QMV, for a term of two and a half years, once renewable.¹⁶³ This President of the European Council would be expected to, at his/her level and in that capacity, ensure the external representation of the Union on issues concerning its CFSP, without prejudice to the responsibilities of the HRUFASP. The most obvious division of labour would seem to be that the European Council President would represent the Union at international conferences at the level of ¹⁵⁸ As the Constitution would have: M Dougan, ‘The Convention’s Draft Constitutional Treaty: bringing Europe closer to its lawyers?’ (2003) 28 ELR 774. ¹⁵⁹ However, even under the EU Treaty/EC Treaty, the European Council has attempted to provide an overall framework for the entire foreign policy of the Union, and has thus already to an extent played the role it would play under the Treaty of Lisbon: see S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 413–416. ¹⁶⁰ New Art 22(1) EU (cf Art III-293 TC). It should be noted that New Art 22 EU falls within the jurisdiction of the Court of Justice, except insofar as it concerns the CFSP: Art 275 TFEU (cf Art III-376(1) TC). ¹⁶¹ At least, this seems to be the most sensible interpretation of the wording of New Art 22(2) EU: ‘The High Representative of the Union for Foreign Affairs and Security Policy, for the area of common foreign and security policy, and the Commission, for other areas of external action, may submit joint proposals to the Council’; cf Art III-293(2) TC and see M Cremona, ‘The Draft Constitutional Treaty: External Relations and External Action’ (2003) 40 CML Rev 1349. ¹⁶² cf C Hill, The Changing Politics of Foreign Policy (2003) 40: ‘States and foreign policies are nearly Siamese twins, but not quite’; cf P Allott, Eunomia: New Order For a New World (2001) 56, paras 4.14 et seq and 288, paras 15.69 et seq; P Allott, The Health of Nations: Society and Law beyond the State (2002) 109, paras 4.27 et seq and 231, paras 8.3 et seq. ¹⁶³ New Art 15(5) EU (cf Art I-22 TC).

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heads of state and government, while the HRUFASP would have to be content with conferences and meetings at ministerial level.¹⁶⁴ This innovation cannot be accomplished without a Treaty amendment, in casu of Article 4 EU in combination with Article 203 EC, or of either of them separately. Should the Treaty of Lisbon not enter into force, it would be sensible to include this innovation in a possible future Treaty amendment of a smaller scale. Whether this is feasible, given that the institutional provisions of the Treaty of Lisbon were a compromise package, is a different matter.

4.3.3.3 The decision-making process: autonomous measures As noted above, the sharp distinction between initiative by the Commission and decision-making by the Council (alone or jointly with the European Parliament), which is a familiar feature of the Community method, does not exist within the CFSP. A more restricted role for the Commission Article 27 EU stipulates that the Commission ‘shall be fully associated with’ the work carried out in the CFSP field. In practice, this means that the Commission will generally attend all meetings of the Council, Permanent Representatives Committee (COREPER), and the Political and Security Committee (PSC). The Commission shares with the Member States the right to refer to the Council any question relating to the CFSP and may submit proposals to the Council.¹⁶⁵ However, contrary to the situation under the EC Treaty, the Commission’s withdrawal or amendment of any proposal that it makes has no effect on the decisionmaking procedure within the Council.¹⁶⁶ In addition, the Council may request the Commission to submit to it any appropriate proposals relating to the CFSP to ensure the implementation of a joint action.¹⁶⁷ In the past, the Commission has not been eager to use its right of initiative in the CFSP.¹⁶⁸ The fact that the Commission has to share its right of initiative with the Member States, and the greater complexity and sensitivity of initiating a CFSP action as compared with Community action, has prompted the Commission to develop a strategy of ‘embedding’ CFSP issues in broader sets of ¹⁶⁴ Similarly: eg AA Dashwood, ‘The Draft EU Constitution—First Impressions’ (2002–2003) 5 CYELS 412; D Thym, ‘Reforming Europe’s Common Foreign and Security Policy’ (2004) 10 Eur LJ 21; W Wessels, ‘A “Saut constitutionnel” out of an intergovernmental trap? The provisions of the Constitutional Treaty for the Common Foreign, Security and Defence Policy’ (2004) 27. ¹⁶⁵ Art 22(1) EU. Under New Art 30(1) EU (cf Art III-299(1) TC) any Member State, the HRUFASP, or the HRUFASP with the Commission’s support, would be able to refer any question relating to the CFSP to the Council and would be able to ‘submit to it initiatives or proposals as appropriate’. ¹⁶⁶ cf K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 633, para 15-003. ¹⁶⁷ Art 14(4) EU. ¹⁶⁸ For some examples: RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 93–94.

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agreements or policies, instead of instigating stand-alone CFSP actions.¹⁶⁹ For example, the Commission played a crucial role in providing the HRCFSP with instruments necessary to resolve a crisis regarding the Former Yugoslav Republic of Macedonia, thanks to its initiatives with regard to the Stabilization and Association Process for Albania, Bosnia-Herzegovina, Croatia, Federal Republic of Yugoslavia, and the Former Yugoslav Republic of Macedonia, may be the FYROM Stabilisation and Association Agreement.¹⁷⁰ Thanks to the presence of senior officials of DG External Relations at all PSC meetings, the Commission’s views on the CFSP/ESDP may be fed into the debates, regardless of its limited right of initiative.¹⁷¹ The central role of the Council The EU Treaty The Council plays the most important role in CFSP decisionmaking.¹⁷² Initiatives within the CFSP sphere most often emerge from the Presidency,¹⁷³ but can equally come from individual Member States.¹⁷⁴ The Council is assisted in its task by its General Secretariat, which performs important executive tasks for the entire field of EU policies and for the CFSP in particular.¹⁷⁵ ¹⁶⁹ See M Smith, Europe’s Foreign and Security Policy: The Institutionalization of Cooperation (2004) 193, who cites as exceptions EU involvement in Rwanda, in KEDO and in the renegotiation of the Treaty on the non-proliferation of Nuclear Weapons, 1 July 1968, 729 UNTS 161; 7 ILM 8809 (1968). ¹⁷⁰ Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part, concluded through Council and Commission Decision 2004/239/EC, Euratom of 23 February 2004 concerning the conclusion of the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part [2004] OJ L84/1; see C Piana, ‘The EU’s DecisionMaking Process in the Common Foreign and Security Policy: The Case of the Former Yugoslav Republic of Macedonia’ (2002) 7 Eur Foreign Affairs Rev 212–213. ¹⁷¹ F Hayes-Renshaw and H Wallace, The Council of Ministers (2006) 83–84. ¹⁷² cf, however, S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 418–419, who slightly played down the Council’s importance in CFSP decision-making. ¹⁷³ The Presidency is held in turn by each Member State in the Council for a term of six months in a rotating order: Art 203, 2 EC. Mention should also be made of the so-called ‘Troika’ (Art 18(4) EU), which provides for close cooperation between the incumbent Council Presidency and ‘if need be’ the next one, in combination with the HRCFSP and the External Relations Commissioner. For a comparison between the current and former version of the Troika: E Denza, The Intergovernmental Pillars of the European Union (2002) 158. For a comparison between the pre- and post-Treaty of Amsterdam version of the Troika: AA Dashwood, ‘External Relations Provisions of the Amsterdam Treaty’ in D O’Keeffe and P Twomey (eds), Legal Issues of the Amsterdam Treaty (1999) 216. ¹⁷⁴ E Denza, The Intergovernmental Pillars of the European Union (2002) 168; The Member States are not required to make their proposals public, and therefore usually follow the diplomatic practice of keeping communications with friendly governments outside the public domain; cf P Koutrakos, EU International Relations Law (2006) 401, who cites Council Joint Action 2004/796/CFSP of 22 November 2004 for the support of the physical protection of a nuclear site in the Russian Federation [2004] OJ L349/57 as an example of Member State initiative. Cf also S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 275–277, who points out that special representatives can also informally make proposals to the Council. ¹⁷⁵ See G Edwards, ‘Common Foreign and Security Policy: Incrementalism in Action?’ in M Koskenniemi (ed.), International Law Aspects of the European Union (1998) 11–12; S Duke and

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Throughout the decision-making process, the work programme and the agenda of meetings are primarily organized from the Ministry of Foreign Affairs of the country holding the Presidency. As the source of most initiatives, the Presidency introduces new issues but also assigns priority to certain topics and excludes or demotes issues. Duke and Vanhoonacker note that ‘[f]ew countries in the chair resist the temptation to also use their six months to promote their hobby horses and to advance essentially national agendas, often in the guise of broader European interests’.¹⁷⁶ Of great importance as ‘the face of the CFSP’ is the Secretary-General of the Council, who equally acts as the HRCFSP. He assists the Council, as Article 26 EU states, ‘in particular through contributing to the formulation, preparation and implementation of policy decisions, and, when appropriate and acting on behalf of the Council at the request of the Presidency, through conducting political dialogue with third parties’. Declaration 6 annexed to the Treaty of Amsterdam also created the Policy Planning and Early Warning Unit¹⁷⁷ within the General Secretariat of the Council under the responsibility of the HRCFSP. The tasks of the Unit, according to its founding declaration, include (a) monitoring and analysing developments in areas relevant to the CFSP; (b) providing assessments of the Union’s foreign and security policy interests and identifying areas which the CFSP could focus on in the future; (c) providing timely assessments and early warning of events or situations which may have significant repercussions for the Union’s foreign and security policy, including potential political crises; (d) producing, at the request of either the Council or the Presidency or on its own initiative, argued policy options papers to be presented under the responsibility of the Presidency as a contribution to policy formulation in the Council, and which may contain analyses, recommendations and strategies for the CFSP. There has to be appropriate cooperation with the Commission in order to ensure full coherence with the Union’s external economic and development policies. Member States and the Commission must assist the policy planning process by providing, to the fullest extent possible, relevant information, including confidential information, and may make suggestions to the Unit for work to be undertaken. The Unit is S Vanhoonacker, ‘Administrative Governance in the CFSP: Development and Practice’ (2006) 11 Eur Foreign Affairs Rev 175–177. ¹⁷⁶ S Duke and S Vanhoonacker, ‘Administrative Governance in the CFSP: Development and Practice’ (2006) 11 Eur Foreign Affairs Rev 166, who also note that the Presidency’s capacities in agenda-shaping should not be exaggerated, inter alia due to the six-monthly rotation: ibid, 167. ¹⁷⁷ Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts—Declarations adopted by the Conference— Declaration on the establishment of a policy planning and early warning unit [1997] OJ C340/132; according to the Declaration, the unit consists of personnel drawn from the General Secretariat, the Member States, the Commission and the WEU. Cf AA Dashwood, ‘External Relations Provisions of the Amsterdam Treaty’ in D O’Keeffe and P Twomey (eds), Legal Issues of the Amsterdam Treaty (1999) 217.

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intended to provide ‘the raw material of a foreign policy conceived in the broader perspective of the Union’.¹⁷⁸ While it is no match for the vast resources available to major Member States, it can build a capacity for continuous monitoring and assessment of policy with regard to particular countries, regions or specific issues.¹⁷⁹ However, in practice, the Policy Planning and Early Warning Unit, it seems, has been used mostly as an extension of the HRCFSP’s private office, with much of its work focused on day-to-day affairs rather than strategic planning.¹⁸⁰ The HRCFSP’s contribution to the external face of the Union may not be unequivocally positive. The fact that the HRCFSP is only a representative for those aspects of Union foreign policy falling under Title V of the EU Treaty is a strong confirmation of the enduring importance of the pillar system. The Union currently has two ‘faces’ for its foreign policy: the HRCFSP and the External Relations Commissioner, without a clear division of tasks. They also operate according to a different institutional logic. This can lead to competition and overlaps, and an increasing strain on the institutional coherence of the system of EU external relations.¹⁸¹ The Council is also aided in its task by COREPER and the Political and Security Committee (PSC), as well as by a varying number of working parties that perform the ‘ground work’ on the EU’s diverse policies, and operate under the aegis of COREPER or another senior preparatory committee.¹⁸² COREPER consists of the Permanent Representatives of the Member States and has general responsibility for preparing the work of the Council, as well as for carrying out particular tasks that may be assigned to it by the Council.¹⁸³ It operates over the entire field of the Union’s competences, and in practice many decisions are effectively taken within the Committee, and then rubber-stamped by the Council.¹⁸⁴ The operation of COREPER within the CFSP can be seen as ¹⁷⁸ AA Dashwood, ‘External Relations Provisions of the Amsterdam Treaty’ in D O’Keeffe and P Twomey (eds), Legal Issues of the Amsterdam Treaty (1999) 218. ¹⁷⁹ E Denza, The Intergovernmental Pillars of the European Union (2002) 184. ¹⁸⁰ N Nugent, The Government and Politics of the European Union (2006) 508; cf S Duke and S Vanhoonacker, ‘Administrative Governance in the CFSP: Development and Practice’ (2006) 11 Eur Foreign Affairs Rev 168. ¹⁸¹ C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 181; see also S Nuttall, ‘Coherence and Consistency’ in C Hill and M Smith (eds), International Relations and the European Union (2005) 103. ¹⁸² Art 19(3) RPC: ‘Committees or working parties may be set up by, or with the approval of, Coreper with a view to carrying out certain preparatory work or studies defined in advance’; see F Hayes-Renshaw and H Wallace, The Council of Ministers (2006) 96–100. In 2005, 36 committees or working parties and 2 sub-groups were operating within the field of external relations, security and defence, and development: ibid, 70; further: S Duke and S Vanhoonacker, ‘Administrative Governance in the CFSP: Development and Practice’ (2006) 11 Eur Foreign Affairs Rev 170–173. ¹⁸³ Art 207(1) EC. See in general on COREPER: JW de Zwaan, The Permanent Representatives Committee: Its Role in European Union Decision-Making (1995). ¹⁸⁴ These are the ‘A’ points on the Council agenda, on which approval is possible without discussion. Up to 90% of Council business has been agreed before it reaches ministerial level— around 70% at the working party level and approximately 15–20% in COREPER: S Duke and

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an element of the single institutional framework, and its importance in CFSP decision-making, which lies mostly in ensuring overall coherence, should not be underestimated. In the field of the CFSP, a second senior committee operates under the authority of the Council, namely the PSC.¹⁸⁵ It consists of national senior representatives, normally at ambassadorial level,¹⁸⁶ and monitors the international situation in the areas covered by the CFSP.¹⁸⁷ PSC members, like those of COREPER, are permanently based in Brussels and are based in the national permanent representations, where they have a small specialized staff that includes some military personnel.¹⁸⁸ The PSC contributes to the definition of policies by delivering opinions to the Council. This can be done both at the request of the Council or on the PSC’s own initiative of the PSC. It also monitors the implementation of agreed policies, ‘without prejudice to the responsibility of the Presidency and the Commission’. Most importantly, from a practical point of view, the Committee exercises political control and strategic direction of crisis management operations, while these tasks remain within the overall responsibility of the Council.¹⁸⁹ It is in such moments of crisis that the PSC is meant to play a crucial role.¹⁹⁰ Given that it deals with both the CFSP and the ESDP, the PSC is in a position to provide a coherent overall approach to international crises. The PSC also cooperates closely with the HRCFSP.¹⁹¹ Perhaps unsurprisingly, coordination between COREPER and the PSC does not always run smoothly, and power struggles have ensued,¹⁹² and this has been the case since before the PSC replaced the Political Committee (PoCo). S Vanhoonacker, ‘Administrative Governance in the CFSP: Development and Practice’ (2006) 11 Eur Foreign Affairs Rev 169. ¹⁸⁵ The PSC is the successor of the Political Committee (PoCo). Before the entry into force of the Treaty of Nice, the PSC was established by a Council Decision as the standing formation of the PoCo, notwithstanding the doubtful legality of this construction: see DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 60–63. Further on the PSC: M Trybus, European Union Law and Defence Integration (2005) 109–110; F Hayes-Renshaw and H Wallace, The Council of Ministers (2006) 82–86. ¹⁸⁶ P Koutrakos, EU International Relations Law (2006) 456. ¹⁸⁷ Art 25 EU. The PSC does so without prejudice to Art 207 EC. ¹⁸⁸ F Hayes-Renshaw and H Wallace, The Council of Ministers (2006) 83. This ‘gradual accretion of permanently established CFSP-related bodies’ in Brussels enhances the socialization process and their mutual influence upon each other: S Duke and S Vanhoonacker, ‘Administrative Governance in the CFSP: Development and Practice’ (2006) 11 Eur Foreign Affairs Rev 164. ¹⁸⁹ cf Art 25, para 3 EU. ¹⁹⁰ Further: Council Decision 2001/78/CFSP of 22 January 2001 setting up the Political and Security Committee [2001] OJ L27/1. ¹⁹¹ Ibid, para 1(d). Below the PSC, there are also the ‘European Correspondents’, and below those the ‘Working Groups’: E Denza, The Intergovernmental Pillars of the European Union (2002) 181. ¹⁹² G Edwards, ‘Common Foreign and Security Policy’ (1993) 13 YEL 499; S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 245–248 and 250–251; RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 79–83; S Nuttall, ‘Coherence and Consistency’ in C Hill and M Smith (eds), International Relations and the European Union (2005) 100–101; F Hayes-Renshaw and H Wallace, The Council of Ministers (2006) 85–86; N Nugent, The Government and Politics of the European Union (2006) 507.

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Duke and Vanhoonacker attribute this rivalry in part to the original PoCo/ COREPER division of labour, which reflected ‘the rather arbitrary distinction between the political and economic aspects of external relations made not only in the EPC/CFSP and Community contexts but, in many cases, in the national administrations of the Member States as well’.¹⁹³ While COREPER retains its general coordinating function over the entire field of Union policies, the PSC has the advantage that it meets immediately preceding the relevant meetings of the Council or the European Council. The Council notes in its RPC that it is aware of the need for matters relating to the CFSP to be dealt with swiftly and efficiently, and that the rules of procedure concerning agenda-setting¹⁹⁴ should not prevent this need from being met.¹⁹⁵ The Council can thus deal with CFSP topics that had not been part of the agenda, and would therefore not have been dealt with at the COREPER-level.¹⁹⁶ In broad terms, turf battles have centred on the urge of COREPER to affirm itself as the general coordinating body, and the wish of the PSC to protect its policy-making role within the CFSP/ESDP. Under a 1992 agreement, the PSC¹⁹⁷ focuses on substance and political analysis, and COREPER looks at the institutional, legal, financial, and Community aspects of the questions on the table, while refraining from altering or editing the opinion of its PSC colleagues.¹⁹⁸ COREPER’s agenda leaves little time for much more than this. CFSP issues are often finalized by the PSC and appear as a Part I item on COREPER’s agenda.¹⁹⁹ The division of tasks between COREPER and the PSC is, however, not a hard and fast rule: the actual division of dossiers also depends upon their nature (Cyprus, for instance, is a COREPER issue since it was linked to enlargement) as well as upon origins (Commission initiatives will follow the COREPER track), and the COREPER-PSC relationship remains one of the more problematic aspects of CFSP decision-making.²⁰⁰ ¹⁹³ S Duke and S Vanhoonacker, ‘Administrative Governance in the CFSP: Development and Practice’ (2006) 11 Eur Foreign Affairs Rev 173. See further ch 6. ¹⁹⁴ Art 3 RPC. ¹⁹⁵ Art 3, fn 1(b) RPC. ¹⁹⁶ S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 290. ¹⁹⁷ Then the PoCo. ¹⁹⁸ ‘Texte du Comité Politique au Groupe des Représentants Personnels des Ministres concernant les relations entre le Comité Politique et le Coreper dans le cadre de la PESC’, Annex III, Doc. 6252/95, Fonctionnement du Conseil et organization du Secrétariat Général, 11 May 1992, cited in RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 81. ¹⁹⁹ The Council Secretariat, together with the Presidency, prepares a single agenda for the weekly COREPER meetings. Items to be dealt with by COREPER I (deputies) are listed first, followed by those to be dealt with by COREPER II (ambassadors). Each of these documents is divided into two parts: Part I contains the items about which agreement has been reached at the working parties level, and Part II consists of items that need to be discussed by the members of COREPER. Following discussion there, agendas are prepared for the Council meetings, whereby items are once again grouped in two categories: A points, about which agreement has already been reached, and B points, which need to be discussed by the ministers: F Hayes-Renshaw and H Wallace, The Council of Ministers (2006) 79. ²⁰⁰ S Duke and S Vanhoonacker, ‘Administrative Governance in the CFSP: Development and Practice’ (2006) 11 Eur Foreign Affairs Rev 174–175.

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‘In cases requiring a rapid decision’, the Presidency can convene an extraordinary Council meeting within 48 hours. It can do this of its own motion, or at the request of the Commission or a Member State. In an emergency, an extraordinary Council meeting can be convened within an even shorter period.²⁰¹ It is for the Council to adopt joint actions and common positions on the basis of the principles and general guidelines set out by the European Council, and implementing the common strategies adopted by the latter.²⁰² That the Council must adopt CFSP legal instruments ‘on the basis of the principles and general guidelines set out by the European Council’ should be read as implying that the Council can take no action in the sphere of the CFSP contrary to any of the European Council’s conclusions. If the European Council has adopted guidelines on a certain aspect of foreign policy, the Council must stay within the bounds they set. However, absent such guidelines with regard to an area of foreign policy where action is necessary, the Council should be able to take the necessary action.²⁰³ Legally, the Council can adopt CFSP measures in any of its configurations. In practice, this usually happens within the General Affairs and External Relations Council, as it has been designated since June 2002. The unanimity rule applies in principle to Council decisions taken for purposes of the CFSP. Unanimity means the same in Article 23(1) EU as in Article 205(3) EC, viz that an abstention does not prevent a decision from being taken.²⁰⁴ The latter is a clarification provided by the Treaty of Amsterdam; under the Treaty of Maastricht it was possible to argue that unanimity was to be understood as ‘common accord’, requiring all Member States to vote in favour. However, socalled ‘constructive abstention’²⁰⁵ is a mechanism exclusive to the CFSP. When a Member State decides to abstain in a vote, it has the possibility of qualifying this abstention by making a formal declaration,²⁰⁶ and it will then not be obliged to apply the decision, though it must accept that the decision binds the Union. The Member State in question must also, ‘in a spirit of mutual solidarity’, refrain from any action likely to conflict with or impede Union action based on the decision on which it has decided to abstain. As with the loyal cooperation obligation of Article 10 EC, the loyalty works both ways;²⁰⁷ Article 23 EU equally mentions that the other Member States have to respect the position of the abstaining Member State. However, differentiation and opting out has its limits. If the Member States wishing to abstain on a specific matter represent more than onethird of the votes weighted in accordance with Article 205(2) EC, the decision ²⁰¹ Art 22(2) EU. ²⁰² Art 13(3) EU. ²⁰³ cf E Denza, The Intergovernmental Pillars of the European Union (2002) 139, who notes that there is no real institutional tension between the European Council and the Council, both of which ultimately reflect the will of the Member States, and cites the Union’s policy with regard to Russia as an example: ibid, 140–142. ²⁰⁴ Art 23(1) EU. ²⁰⁵ cf K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 632, para 15-002. ²⁰⁶ Art 23(1), para 2 EU. ²⁰⁷ ch 7.3.

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cannot be adopted. That makes political and legal sense. Council decisions—one might add, especially with regard to foreign policy—should have the support of a substantial number of the members of the Council, or how can it plausibly be claimed that the Union has acted?²⁰⁸ By derogation from the general rule of unanimity, the Council acts by QMV in the sphere of the CFSP:²⁰⁹ • when adopting joint actions, common positions or taking any other decision on the basis of a common strategy; • when adopting any decision implementing a joint action or a common position; • when appointing a special representative in accordance with Article 18(5) EU. Thus, apart from the appointment of special representatives, QMV is only available for the adoption of implementing measures, where the principle of taking action has been accepted under a common strategy or under a joint action or common position adopted by unanimity. A further limitation is that QMV may not be used, even at the stage of implementation, for decisions having military or defence implications. The weighting of the votes and the QMV threshold are the same as under Article 205(2) EC, except in one respect. Art 23(2) EU requires that at least twothirds of Council members vote in favour, whereas it suffices for the purposes of Article 205(2) EC that a majority do so, provided that the Council is acting on a Commission proposal. Since, however, in the absence of such a proposal, Article 205(2) EC requires the positive votes of two-thirds of the members, the difference, in practice, between the QMV thresholds for the CFSP and for the EC is not as stark as it prima facie would appear. A Member State can declare in the Council that it intends to oppose the adoption of a CFSP legal instrument by QMV ‘for important and stated reasons of national policy’ and in that case, a vote will not be taken.²¹⁰ The possibility remains for the Council to decide by QMV to refer the matter to the European Council for a decision by unanimity.²¹¹ This ‘emergency brake’ procedure is designed to cater for the sensitivities of the Member States over foreign policy issues.²¹² Apart from unanimity and QMV, which are the decision-making procedures for substantive CFSP legal instruments, the Council adopts decisions by ²⁰⁸ cf RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 144. Cf JC Piris, The Constitution for Europe: A Legal Analysis (2006) 62, who notes that the constructive abstention mechanism has never been formally resorted to. This seems to cast doubt on its practicability. ²⁰⁹ Art 23(2) EU. ²¹⁰ This is an adaptation of the ‘Luxembourg Compromise’. See E Denza, The Intergovernmental Pillars of the European Union (2002) 172; On the Luxembourg Compromise: see AM Arnull, AA Dashwood, M Dougan, M Ross, E Spaventa, and D Wyatt, Wyatt and Dashwood’s European Union Law (2006) 72–73. ²¹¹ Art 23(2) EU. ²¹² It appears, however, not to have been used to date.

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a simple majority with regard to procedural questions.²¹³ The EU Treaty does not, however, make clear what this covers.²¹⁴ A decision to publish a common strategy, joint action or common position is seemingly not a procedural question, as the Council or COREPER has to decide unanimously, on a case-by-case basis, whether these should be published in the Official Journal by the SecretaryGeneral or the Deputy Secretary-General.²¹⁵ The Treaty of Lisbon New Article 16(6) EU²¹⁶ takes the decision of the European Council in Seville to create a new ‘General Affairs and External Relations Council’ with separate meetings for general affairs and external relations²¹⁷ to its logical conclusion, by creating an independent Foreign Affairs Council, which would no longer have to deal with general EU affairs.²¹⁸ The Foreign Affairs Council would be expected to ‘elaborate the Union’s external action’ on the basis of strategic guidelines laid down by the European Council, and to ensure that Union action is consistent. The HRUFASP would chair the Foreign Affairs Council.²¹⁹ Apart from the role of the HRUFASP, this change could be effectuated by amending the RPC, without the need of a Treaty amendment. A more contentious matter is voting in the Council, which seems to have caused some of the most heated debates in the Convention. The predominantly parliamentarian composition of the Convention apparently favoured an ambitious reform in the direction of more QMV in foreign-policy matters.²²⁰ The distinction between CFSP and EC external relations with regard to voting in the Council would clearly remain in place under the Treaty of Lisbon. The only significant extension²²¹ of QMV in the CFSP seems to be that the Council will act by QMV ‘when adopting a decision defining a Union action or position, 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, made on its own initiative or that of the High Representative’.²²² Within the European Council, however, the default rule of consensus would apply in this situation.²²³ ²¹³ Art 23(3) EU. ²¹⁴ cf RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 145–146. ²¹⁵ Art 17(3) RPC. ²¹⁶ cf Art I-24(3) TC. ²¹⁷ Presidency Conclusions of the Seville European Council, 21 and 22 June 2002, Annex II. ²¹⁸ On the role of the General Affairs Council in EU foreign policy: S Nuttall, ‘Coherence and Consistency’ in C Hill and M Smith (eds), International Relations and the European Union (2005) 104–105. ²¹⁹ New Art 18(3) EU (cf Art I-28(3) TC). ²²⁰ D Thym, ‘Reforming Europe’s Common Foreign and Security Policy’ (2004) 10 Eur LJ 10. ²²¹ See, however, the passerelle in New Art 31(3) EU (Art III-300(3) TC). ²²² New Art 31(2), second indent EU (cf Art III-300(2)(b) TC). ²²³ New Art 15(4) EU (cf Art I-21(4) TC).

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A distinction needs to be drawn between two types of QMV, both of which would operate within the CFSP. New Article 16(4) EU²²⁴ defines a qualified majority (as from 1 November 2014) as ‘at least 55% of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65% of the population of the Union’. However, Article 238(2) TFEU provides ‘By way of derogation from Article 16(4) of the Treaty on European Union, as from 1 November 2014 and subject to the provisions laid down in the Protocol on transitional provisions,[²²⁵] where the Council does not act on a proposal from the Commission or from the High Representative of the Union for Foreign Affairs and Security Policy, the qualified majority shall be defined as at least 72% of the members of the Council, representing Member States comprising at least 65% of the population of the Union.’²²⁶ There would thus be three CFSP decision-making procedures available for the Council: • unanimity, which would still be the rule, as described in New Article 31(1) EU;²²⁷ • QMV in the less strict version (New Article 16(4) EU):²²⁸ in the case described in New Article 31(2), second indent EU (proposal from the HRUFASP);²²⁹ • QMV in the stricter version (Article 238(2) TFEU):²³⁰ in the cases described in New Article 31(2), first, third, and fourth indent EU.²³¹ As in the present Article 23(2) EU, a Member State would under New Article 31(2) second subparagraph EU, still have the option of preventing a vote when it declares that, ‘for vital and stated reasons of national policy, it intends to oppose the adoption of a decision to be taken by qualified majority’.²³² An innovation introduced by the Treaty of Lisbon would be that the HRUFASP at this point would attempt to avoid referral of the decision to the European Council by searching for a solution acceptable to the objecting Member State. This would happen ‘in close consultation with the Member State involved’, and would amount to the

²²⁴ See EU Treaty, FEU Treaty, and EURATOM Treaty, Protocol on Transitional Provisions. ²²⁵ Treaty of Lisbon, Protocol on Transitional Provisions [2007] OJ C306/159. ²²⁶ cf Art I-25(2) TC. Cf K Zyczkowski and W Slomczynski, ‘Voting in the European Union: The square root system of Penrose and a critical point’ (2004), who propose an alternative QMV system whereby the weight of each one of the Member States in the Council should be proportional to the square root of its population and the QMV threshold is set at 62% of the sum of weights of the members of the Council. According to their calculations, this system would grant every citizen in the EU an equal impact on decision-making in the Council. See further: C Beisbart, L Bovens, and S Hartmann, ‘A Utilitarian Assessment of Alternative Decision Rules in the Council of Ministers’ (2005) 6 European Union Politics 395–418. ²²⁷ cf Art III-300(1) TC. ²²⁸ cf Art I-25(1) TC. ²²⁹ cf Art III-300(2)(b) TC. ²³⁰ cf Art I-25(2) TC. ²³¹ cf Art III-300(2)(a), (c), (d) TC. ²³² cf Art III-300(2) TC.

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HRUFASP trying his or her best to broker a unanimous decision in the Council, which would make a referral to the European Council superfluous.²³³ Such changes would only be possible through an amendment of the present EU Treaty and would obviously be dependent on the establishment of the post of HRUFASP. However, as mentioned above, QMV should not be seen as synonymous with democracy and efficiency,²³⁴ and any further extension of the scope of QMV in CFSP matters would have to be preceded by thorough reflection. More particularly, the question should be asked whether democracy would be better served by increasing QMV in such contentious matters as foreign policy, or by keeping unanimity as the default decision-making procedure for the CFSP.²³⁵ Moreover, it has been pointed out that unanimity has not been a serious obstacle to the development of the CFSP. On the contrary, it has led to decisions based on a wide understanding of the issue and of the advantages and the risks to the Union. QMV probably often leads to decisions being taken more speedily, but it does not necessarily lead to better decisions.²³⁶

4.3.3.4 The decision-making process: international agreements The EU Treaty Article 24 EU provides the Union with a procedural framework for making international agreements within the sphere of the CFSP (and Police and Judicial Cooperation in Criminal Matters (PJCCM)). The most significant difference between the Article 24 EU procedure for making international agreements in the field of the CFSP and the Article 300 EC procedure is the minimal role of the Commission, and the complete dominance of the Council and the Presidency, which corresponds to the situation with regard to the adoption of autonomous CFSP measures. Whereas under Article 300(1) EC, the initiative lies with the Commission, albeit in the form of a recommendation, the Article 24 EU procedure is set in motion by the Council, which may authorize the Presidency, if necessary assisted by the Commission, to commence negotiations with a view to concluding an agreement with one or more States or international organizations.²³⁷ The use of the phrase ‘may authorise’ rather than ‘shall authorise’ appears to suggest both on the one hand that negotiations need not be conducted through the Presidency and that the Council may, for example, authorize the Commission or a Member State to negotiate,²³⁸ and on the other hand that the Member States remain free ²³³ cf M Cremona, ‘The Draft Constitutional Treaty: External Relations and External Action’ (2003) 40 CML Rev 1359. ²³⁴ ch 3.2.2; cf P Koutrakos, EU International Relations Law (2006) 412–413. ²³⁵ cf the analysis on QMV and unanimity in A Peters, ‘European Democracy After the 2003 Convention’ (2004) 41 CML Rev 53–58. ²³⁶ E Denza, The Intergovernmental Pillars of the European Union (2002) 170. ²³⁷ Art 24(1) EU. ²³⁸ See K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 894, para 21-019, fn 64.

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to act outside the CFSP. The contrast between EC external relations and the CFSP is again striking: the Council cannot on its own initiative either open or conduct negotiations under the EC Treaty, whilst it has complete control over treaty-making by the Union under Article 24 EU. The Council, on a recommendation from the Presidency, concludes any resulting international agreement.²³⁹ It acts by unanimity when the agreement covers areas that require unanimity for internal measures.²⁴⁰ Thus, agreements implementing joint actions or common positions can, in principle, be decided upon by QMV.²⁴¹ Practice has shown that approval by the Council may be deduced from the decision authorizing the Presidency to sign the international agreement or to have it signed.²⁴² This was the case with the first generation of CFSP agreements, where the Council authorized the Presidency to indicate the person who was to sign the agreement in order to bind the Union,²⁴³ apparently opting for the procedure of conclusion in simplified form, as distinct from the solemn form, which requires ratification.²⁴⁴ Member States have the possibility, through their representatives in the Council, of stating that they have to comply with the requirements of their own constitutional procedure before being bound by a given agreement.²⁴⁵ In that case, the agreement will not be binding on the Member State concerned until the latter has gone through its own internal constitutional procedure. In order not to let the entire Union be held back by the constitutional difficulties of one Member State, the other members of the Council may agree that the agreement will apply provisionally.²⁴⁶ International agreements concluded in accordance with the procedure set out in Article 24 EU bind the institutions of the Union.²⁴⁷ It would, however, seem ²³⁹ Art 24(1) EU. ²⁴⁰ Art 24(2) EU. ²⁴¹ Art 23(2) EU. ²⁴² cf K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 895, para 21-019. ²⁴³ eg Council Decision 2003/516/EC of 6 June 2003 concerning the signature of the Agreements between the European Union and the United States of America on extradition and mutual legal assistance in criminal matters [2003] OJ L181/25, Art 1(1). ²⁴⁴ cf ch 3.3.3. ²⁴⁵ This happened with regard to the Agreements between the EU and the USA on extradition and mutual legal assistance in criminal matters (approved by Council Decision 2003/516/EC), when no less than 12 Member States made a declaration to that effect. See K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 810, para 18-023, fn 75. ²⁴⁶ Art 24(4) EU. See Art 25 Vienna Convention on the Law of Treaties, 23 May 1969, UN Doc. A/Conf.39/27; 1155 UNTS 331; 8 ILM 679 (1969); 63 AJIL 875 (1969) (cf Art 25 Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, 25 ILM 543 (1986)). ²⁴⁷ Art 24(5) EU. See, for example, the Agreement between the Republic of Iceland and the European Union on security procedures for the exchange of classified information [2006] L184/35, Art 15: ‘This Agreement shall in no way prevent the Parties from concluding other agreements relating to the provision or exchange of classified information subject to this Agreement provided that they do not conflict with the provisions of this Agreement’. However, the Agreement between the EU and NATO on the Security of Information (approved by Council Decision 2003/211/ CFSP) restricts its application with regard to the EU to the Council, the HRCFSP and the General

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that the Member States would find it difficult to conclude agreements outside the EU framework that would go directly against an EU agreement without violating the loyalty principle in Article 11(2) EU and, as per the Court of Justice in the Pupino case,²⁴⁸ the general principle of loyal cooperation in EU law.²⁴⁹ Article 17(1)(h) RPC provides that international agreements concluded on the basis of Article 24 EU are to be published in the Official Journal by the Secretary-General of the Council or his deputy, unless the Council should decide otherwise.²⁵⁰ The Official Journal will also refer to the entry into force of such agreements. Given that the Court of Justice lacks any substantive jurisdiction within Title V of the EU Treaty,²⁵¹ it also lacks jurisdiction to review the legality or the interpretation of agreements concluded under Article 24 EU. While the introduction of Article 24 EU provided the Union with the possibility of furthering its CFSP goals through the conclusion of international agreements, this may have caused some collateral damage. As will be discussed, mixed agreements have often been used in order to integrate Community and non-Community foreign policy elements in one single instrument, thus enabling the Union to project itself outwardly as a complex whole. The Partnership and Cooperation Agreements with Russia and the Ukraine would be a good example.²⁵² The introduction of Article 24 EU has potentially diminished the need for mixed agreements in such instances by allowing the Union itself to enter into international agreements on CFSP matters. However, by allowing for this possibility, Article 24 EU also hardens the separation between the different aspects of EU external relations. It is therefore unsurprising that the Commission has resisted the development of Article 24 EU agreements, promoting instead the use of mixed agreements, to keep the Community—and hence the Commission—involved in areas not falling within Community competences.²⁵³ The unified treaty-making procedure under the Treaty of Lisbon Under the unified procedure, the Council would remain the principal actor. It would authorize negotiations and would be able to address directives to the negotiator and designate a special committee that would have to be consulted throughout Secretariat of the Council and the Commission. See K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 811, para 18-023, fn 76. ²⁴⁸ Case C-105/03 Criminal proceedings against Maria Pupino [2005] ECR I-5285. See further ch 6.2 below. ²⁴⁹ cf similarly C Hillion and RA Wessel, ‘Restraining External Competences of EU Member States under CFSP’ in M Cremona and B De Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (forthcoming (2008)). ²⁵⁰ On the basis of Regulation (EC) 1049/2001 of the European Parliament and the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents [2001] OJ L145/43, Arts 4 and 9. ²⁵¹ Art 46 EU. ²⁵² C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 179. ²⁵³ Ibid, 179–180.

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the negotiations.²⁵⁴ After receiving recommendations from the Commission or the HRUFASP (if the agreement to be negotiated falls exclusively or principally within the sphere of the CFSP), the Council would adopt a decision authorizing the opening of the negotiations and nominating the Union negotiator or head of the Union’s negotiating team, depending on the subject-matter of the agreement to be negotiated.²⁵⁵ The Council would authorize the signing of the agreement by adopting a decision on a proposal by the negotiator. This decision could also provide for the provisional application of the agreement.²⁵⁶ Equally on the negotiator’s proposal, the Council would adopt the decision concluding the agreement.²⁵⁷ As under the EC Treaty, the Council would act by QMV throughout the entire procedure, with the exception of agreements that cover a field for which unanimity is required for the adoption of a Union act as well as for association agreements.²⁵⁸ For both of these the Council would act by unanimity. The Treaty of Lisbon would add to these exceptions agreements establishing economic, financial and technical cooperation measures with the candidates for accession,²⁵⁹ and the agreement on accession²⁶⁰ of the Union to the Convention for the Protection of Human Rights and Fundamental Freedoms (‘European Convention on Human Rights’).²⁶¹ The drafters of the Treaty of Lisbon have taken specific measures to protect the Union’s cultural and linguistic diversity and the national organization of social, education and health services. Any agreements that risk prejudicing such values would have to be concluded by unanimity in the Council.²⁶² The Council would have to obtain Parliament’s consent before adopting the decision concluding an international agreement in the same cases as under the present Article 300(3), second subparagraph EC.²⁶³ In addition, Parliament would have to give its assent to the agreement containing the Union’s accession to the European Convention on Human Rights.²⁶⁴ Also, Parliament would ²⁵⁴ Art 218(2) and (4) TFEU (see the identical Art III-325(2) and (4) TC). ²⁵⁵ Art 218(3) TFEU (cf Art III-325(3) TC). ²⁵⁶ Art 218(2) and (5) TFEU (cf Art III-325(2) and (5) TC). See Art 25 Vienna Convention on the Law of Treaties (cf Art 25 Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations). ²⁵⁷ Art 218(2) and (6) TFEU (see the identical Art III-325(2) and (6) TC). ²⁵⁸ Unanimity is also required for the negotiation and conclusion of agreements in the fields of trade in services, the commercial aspects of intellectual property, and as would be added by the Treaty of Lisbon, foreign direct investment, where such agreements include any provisions for which unanimity is required for the adoption of internal rules: Art 207(4) TFEU (see the identical Art III-315(4) TC). ²⁵⁹ Art 212 TFEU (cf Art III-319 TC). ²⁶⁰ Pursuant to New Art 6(2) EU (cf Art I-9(2) TC). ²⁶¹ Of 4 November 1950, 213 U.N.T.S. 221. The decision concluding this agreement is to enter into force after it has been approved by the Member States in accordance with their respective constitutional requirements: Art 218(8) TFEU (cf Art III-325(8) TC). ²⁶² Art 207(4) TFEU (see the identical Art III-315(4) TC). The negotiation and conclusion of international agreements in the field of transport is to be subject to Arts 90 to 100 and Art 218 TFEU (cf Arts III-236 to III-245 and III-325 TC). ²⁶³ viz for the agreements enumerated in Art 218(6)(a) TFEU (cf Art III-325(6)(a) TC). ²⁶⁴ Art 218(6)(a)(ii) TFEU (cf Art III-325(6)(a)(ii) TC).

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not only have to give its assent to any agreement entailing amendment of an act adopted under the ordinary legislative procedure,²⁶⁵ but to any agreement covering fields to which the ordinary legislative procedure applies.²⁶⁶ This in contrast to the situation under the EC Treaty, where consultation of the European Parliament is deemed sufficient, even for cases where the agreement covers a field for which the co-decision or the co-operation procedure²⁶⁷ is required for the adoption of internal rules.²⁶⁸ Consent of the European Parliament would also be required for agreements covering fields to which the special legislative procedure applies where consent by the European Parliament is required.²⁶⁹ As under the EC Treaty, the European Parliament and the Council would be able to agree upon a time limit for consent in an urgent situation.²⁷⁰ Again as under the EC Treaty, the Council would need to consult Parliament in all other cases, but could set a time limit for Parliament to deliver its opinion, depending on the urgency of the matter. If Parliament were to fail to deliver its opinion within the time limit set, the Council would be able to act.²⁷¹ However, neither consent by, nor consultation of the European Parliament would be required when the agreement related exclusively to the CFSP.²⁷² It is unclear whether Parliament would have to be consulted if an international agreement were to contain provisions falling within what used to be the first pillar and provisions falling within the CFSP.²⁷³ The European Parliament would have the right to be immediately and fully informed at all stages of the procedure.²⁷⁴ With regard to CCP agreements, the Commission would have to report regularly to the European Parliament on the progress of the negotiations.²⁷⁵ While the Commission is the sole negotiator under Article 300 EC, it would under the Treaty on the Functioning of the European Union become possible for the Council not to appoint the Commission in this role, as is clear from the substitution of the term ‘negotiator’ for ‘Commission’ in Article 218 TFEU.²⁷⁶ Only ²⁶⁵ As was already the case under Art 300(3), para 2 EC. ‘Ordinary legislative procedure’ is the new term for ‘co-decision procedure’. ²⁶⁶ Art 218(6)(a)(v) TFEU (cf Art III-325(6)(a)(v) TC). ²⁶⁷ Art 252 EC: this procedure would cease to exist under the Treaty of Lisbon. ²⁶⁸ Art 300(3), subpara 1 EC. ²⁶⁹ Art 218(6)(a)(v) TFEU (cf Art III-325(6)(a)(v) TC). ²⁷⁰ Art 218(6)(a) in fine TFEU (see the identical Art III-325(6)(a) in fine TC). ²⁷¹ Art 218(6)(b) TFEU (see the identical Art III-325(6)(b) TC). ²⁷² Art 218(6) TFEU (cf Art III-325(6) TC). ²⁷³ cf MG Garbagnati Ketvel, ‘The Jurisdiction of the European Court of Justice in Respect of the Common Foreign and Security Policy’ (2006) 55 ICLQ 105. ²⁷⁴ Art 218(10) TFEU (see the identical Art III-325(10) TC). ²⁷⁵ In addition to the already existing obligation to report to the special committee appointed by the Council to assist the Commission in its task. As under Art 133(3) EC, the Council and the Commission are responsible for ensuring that the agreements negotiated are compatible with internal Union policies and rules and the Commission has to remain within the confines of the directives issued to it by the Council: Art 207(3) TFEU (cf Art III-315(3) TC). ²⁷⁶ cf Art III-325 TC. See eg Art 218(7) TFEU (see the identical Art III-325(7) TC) on modifications to the agreement by the negotiator, which has the same content as Art 300(4) EC, apart from the substitution of ‘negotiator’ for ‘Commission’.

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with regard to agreements within the sphere of the CCP would the Commission retain its position as the sole actor to make recommendations to the Council and as the only possible negotiator.²⁷⁷ The Commission would also lose its sole right of proposal with regard to suspension of the agreement and the decisions pursuant to that, which it would have to share with the HRUFASP under the Treaty on the Functioning of the European Union.²⁷⁸ However, the intention behind that Treaty still seems to be that the negotiations should be conducted as far as possible by the Commission or the Council itself, apart from agreements within the sphere of the CFSP, which the HRUFASP would negotiate.²⁷⁹ The new unified treaty-making procedure under the Treaty on the Functioning of the European Union is largely based on the old Community treaty-making procedure, duly adapted and with a number of exceptions in order to be applicable also to CFSP treaties. The actor losing out completely in the evolution from Article 24 EU to Article 218 TFEU would be the Presidency, which currently to has quite an important role in CFSP treaty-making. Its role in CFSP treatymaking would be taken over by the HRUFASP. It should also be remarked that the provisions of Article 24(5) EU would disappear, which would imply that a member of the Council would no longer be able to declare that his or her Member State has to comply with the requirements of its own constitutional procedure in order for the agreement to be binding on it.²⁸⁰ The separate procedure to make international agreements within the sphere of the EMU would remain in place, with a few minor adjustments.²⁸¹ The capacity to make international agreements and EU legal personality The introduction by the Treaty of Amsterdam of Article 24 EU, which seemed to indicate that the Union could conclude agreements in its own name, sparked a substantial debate²⁸² as to whether the Union has legal personality.²⁸³ Entering into this debate exceeds the scope of this book. Suffice it to say that many have argued that the EU already possesses international legal personality,²⁸⁴ even ²⁷⁷ Art 207(3) TFEU (cf Art III-315(3) TC). ²⁷⁸ Art 218(9) TFEU (cf Art III-325(9) TC). ²⁷⁹ cf similarly on the Constitution: K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 892, para 21-015. ²⁸⁰ cf the submissions by the legal services of the Council, the Parliament, and the Commission in European Convention, Working Group III, Working document 26 (WG III—WD 26). ²⁸¹ Art 219 TFEU (cf Art III-326 TC). ²⁸² For an overview: P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 154–160. ²⁸³ cf B De Witte, ‘The Pillar Structure and the Nature of the European Union: Greek Temple or French Gothic Cathedral?’ in T Heukels, N Blokker, and M Brus (eds), The European Union after Amsterdam (1998) 63, who takes the view that the omission of an express reference to the Union’s legal personality was due to the ‘word-fetishism’ of the British delegation. ²⁸⁴ eg AA Dashwood, ‘External Relations Provisions of the Amsterdam Treaty’ (1998) 35 CML Rev 1038–1041; RA Wessel ‘The Inside Looking Out: Consistency and Delimitation in EU External Relations’ (2000) 37 CML Rev 1138; A Tizzano, ‘The Foreign Relations Law of the EU between Supranationality and Intergovernmental Model’ in E Cannizzaro (ed.), The European

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though this is not spelled out in the EU Treaty, and that this standpoint seems to have been confirmed in practice.²⁸⁵ This also seems to have been largely the starting point of the Convention’s Working Group on Legal Personality.²⁸⁶ New Article 47 EU would declare laconically that ‘The Union shall have legal personality’.²⁸⁷ To anyone not familiar with the external relations law of the Union this affirmation might prima facie seem of great importance, especially because of its absence in the current EU Treaty, but would it in fact fundamentally change anything at all? There is quasi-unanimity among commentators that the explicit granting of legal personality to the Union would be beneficial, corresponding to the desire expressed in the Laeken Declaration for transparency, clarity and legal certainty.²⁸⁸ However, it has to be remarked that (accepting that the so-called ‘will theory’ cannot be sustained to its full extent)²⁸⁹ the Treaty of Lisbon would not in itself actually grant the EU international legal personality. Whether an entity possesses international legal personality is a conclusion that must be drawn within international law. When the founders of an international organization explicitly endow it with international legal personality, this merely indicates that the founders wish to create an entity distinct from their aggregate, and this will be of evidentiary value when deciding on the existence of a legal person under international law. An explicit grant of personality will be immediately valid among the Member States of the organization, but one could think of hypothetical circumstances in which it will not have any effect vis-à-vis non-Member States, for instance if in reality the organization has no independent organs at all.²⁹⁰ This point is probably only of academic interest regarding the EU, given that even without the explicit grant of legal personality in the Treaty of Lisbon, the EU would seem to possess all the characteristics necessary for the international legal system Union as an Actor in International Relations (2002) 142–143; C Tomuschat, ‘The International Responsibility of the European Union’ in E Cannizzaro (ed.), The European Union as an Actor in International Relations (2002) 181–182; I Brownlie, Principles of Public International Law (2003) 649. Contra: E Denza, The Intergovernmental Pillars of the European Union (2002) 173–177. ²⁸⁵ cf P Eeckhout, ‘General Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 286–287. ²⁸⁶ European Convention, Final Report of Working Group III on Legal Personality (CONV 305/02). ²⁸⁷ See the identical Art I-7 TC. ²⁸⁸ eg M Dougan, ‘The Convention’s Draft Constitutional Treaty: bringing Europe closer to its lawyers?’ (2003) 28 ELR 765; J Kokott and A Rüth, ‘The European Convention and its Draft Treaty Establishing a Constitution for Europe: Appropriate Answers to the Laeken Questions?’ (2003) 40 CML Rev 1323; P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 160; K Lenaerts, JM Binon, and P Van Nuffel, ‘L’Union européenne en quête d’une Constitution: bilan des travaux de la Convention sur l’avenir de l’Europe’ (2003) 11 Journal des tribunaux droit européen 290; D Thym, ‘Reforming Europe’s Common Foreign and Security Policy’ (2004) 10 Eur LJ 6–7. ²⁸⁹ cf J Klabbers, An Introduction to International Institutional Law (2002) 52 et seq. ²⁹⁰ cf CF Amerasinghe, Principles of the Institutional Law of International Organizations (2005) 85.

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to regard it as an international legal person. Indeed, international agreements have already been concluded in the name of the EU with third countries and international organizations, which could be said to indicate the will of at least part of the ‘international legal community’ to regard the EU as a legal person.²⁹¹ It can, therefore, safely be said that the explicit confirmation of the EU’s legal personality would not change anything of substance.²⁹² It would not alter the division of competences between the Union and the Member States nor between what is currently the Union and the Community.²⁹³ Since there are those who claim that recognizing the legal personality of the Union would be a further step towards creating a super-State, it is worth recalling the words of the International Court of Justice in Reparation for Injuries suff ered in the Service of the United Nations:²⁹⁴ Accordingly, the Court has come to the conclusion that the Organization [ie the United Nations] is an international person. That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State. Still less is it the same thing as saying that it is ‘a super-State’, whatever that expression may mean.

Indeed, earlier in the judgment the International Court of Justice had already pointed out that subjects in any legal system are not identical ‘in their nature or in the extent of their rights’ and that their nature ‘depends on the needs of the Community’.²⁹⁵ The fact that the EU is an international legal person is therefore merely the response of international law to ‘the requirements of international life’,²⁹⁶ as influenced by the nature and functions of the EU. ²⁹¹ The earliest example of such an agreement was 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. Two recent examples are Council Decision 2007/665/CFSP of 28 September 2007 concerning the conclusion of an Agreement between the European Union and the Republic of Croatia on the participation of the Republic of Croatia in the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN) [2007] OJ L270/27 and Council Decision 2007/670/ CFSP of 1 October 2007 concerning the conclusion of an Agreement between the European Union and New Zealand on the participation of New Zealand in the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN) [2007] OJ L274/17. ²⁹² cf R Gosalbo Bono, ‘Some Reflections on the CFSP Legal Order’ (2006) 34 CML Rev 357; see already AA Dashwood, ‘Issues of Decision-making in the European Union after Nice’ in AM Arnull and D Wincott (eds), Accountability and Legitimacy in the European Union (2002) 17–21. ²⁹³ cf already European Convention, Final Report of Working Group III on Legal Personality (CONV 305/02) para 20. ²⁹⁴ [1949] ICJ Reports 174, 179. ²⁹⁵ Reparation for Injuries suff ered in the Service of the United Nations [1949] ICJ Reports 174, 178. ²⁹⁶ Ibid. Cf E Lauterpacht, ‘The Development of the Law of International Organizations by the Decisions of International Tribunals’ in (1976) 152 Recueil des Cours 403–413, who starts his explanation of the concept of international legal personality as follows: ‘It is important to bear in mind that in itself the attribution of personality to an entity means nothing’. For a general theory of the concept of international legal personality: JE Nijman, The Concept of International Legal Personality (2004); cf P Allott, Eunomia: New Order For a New World (2001) 372–373, para 17.79.

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The explicit affirmation of the Union’s legal personality by the Treaty of Lisbon would, however, have positive consequences for the overall transparency of the Union’s constitutional system, both towards its citizens and towards ‘the wider world’.²⁹⁷ For that reason, should the Treaty of Lisbon not be ratified, it would be advisable to include an explicit affirmation of the legal personality of the Union in a future amendment of the EU Treaty. This would, however, need to be accompanied by a clear explanation to the general public of what the goal of such an explicit affirmation would be.

4.3.4 Implementation of CFSP acts 4.3.4.1 General framework Article 18(2) EU gives the overall responsibility for implementing CFSP acts²⁹⁸ to the Presidency. It is also in this capacity that the Presidency in principle expresses the opinion of the Union in international organizations and at international conferences. The HRCFSP assists the Presidency in its task.²⁹⁹ The Presidency also represents the Union in matters falling within the sphere of the CFSP,³⁰⁰ and is aided in this task, as well as in its general implementing responsibilities, by the Commission, which must be fully associated with these activities. While formally the role of the Commission in implementing CFSP acts is modest, its role in practice can be important: the Commission can provide technical and administrative support and expertise, and in situations where CFSP measures need to be further implemented by Community measures, the Commission indirectly has an important impact on the way CFSP acts are implemented.³⁰¹ An example of significant Commission involvement in the implementation of CFSP action is the EU cooperation programme for non-proliferation and disarmament in the Russian Federation, originally set up within the framework of the common strategy on Russia.³⁰² The programme is intended to support ²⁹⁷ This transparency would, however, not be complete. The Convention did not wish to get stuck in complex discussions about the pros and cons of nuclear energy and therefore decided not to include EURATOM in the Draft Constitution. Instead, the Convention left the substantive provisions in the EURATOM Treaty untouched, but amended its institutional and financial provisions through Treaty establishing a Constitution for Europe, Protocol Amending the Treaty establishing the European Atomic Energy Community [2004] OJ C310/391, which became Treaty of Lisbon, Protocol No 2 amending the Treaty establishing the European Atomic Energy Community [2007] OJ C306/199; cf K Lenaerts, JM Binon, and P Van Nuffel, ‘L’Union européenne en quête d’une Constitution: bilan des travaux de la Convention sur l’avenir de l’Europe’ (2003) 11 Journal des tribunaux droit européen 290. ²⁹⁸ Art 18(2) EU uses the term ‘decisions’. Th is term should preferably be avoided when referring to CFSP acts in general, due to its imprecision: ch 4.3.2.5. ²⁹⁹ Art 18(3) EU. ³⁰⁰ Art 18(1) EU. ³⁰¹ cf S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 305–307; G Edwards, ‘The Pattern of the EU’s Global Activity’ in C Hill and M Smith (eds), International Relations and the European Union (2005) 53. ³⁰² Common Strategy 1999/414/CFSP. An early example of extensive and successful Commission involvement in CFSP implementation seems to have been the EU’s policy towards South Africa in the early nineties: see Council Decision 93/678/CFSP of 6 December 1993 on a

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the Russian Federation in its efforts towards arms control, disarmament and non-proliferation and in the pursuit of a safe, secure, and environmentally sound dismantlement or reconversion of Weapons of Mass Destruction (WMD) infrastructure and equipment and to cooperate with Russia on specific projects aimed at the reduction of threats.³⁰³ The European Commission, assisted by experts, prepares the disarmament and non-proliferation projects, supervises their implementation and reports on them to the Council and to the HRCFSP.³⁰⁴ The projects now in progress include ex-weapons plutonium disposition.³⁰⁵ The incumbent Presidency can also ask the Member State that will next hold the Presidency for assistance in the implementation of CFSP measures, should this be necessary.³⁰⁶ The Presidency’s tasks as the main agent in the implementation of CFSP measures range from taking implementing decisions, which are sometimes straightforward, but can equally be extremely complicated, to conducting difficult negotiations with third countries and international organizations. However, the cases in which the Presidency acts as sole or dominant negotiator for the entire EU are rare. Moreover, a negotiating mandate for the Presidency is often preceded by prolonged and arduous discussions between the Member States, especially if the matter is a politically sensitive one, which in foreign policy matters it often is. Unsurprisingly, the result of such negotiations is not always a clear mandate enabling the Council to act effectively and decisively.³⁰⁷ While the function of the HRCFSP since the Treaty of Amsterdam has greatly improved the operation of the Presidency under the CFSP,³⁰⁸ a number of difficulties remain, such as the lack of continuity in external presentation on the joint action adopted by the Council on the basis of Article J.3 of the Treaty on European Union concerning support for the transition towards a democratic and multi-racial South Africa [1993] OJ L316/45; see M Holland, ‘Bridging the Capability-Expectations Gap: A Case Study of the CFSP Joint Action on South Africa’ (1995) 33 J of Common Market Studies 555–572. ³⁰³ Art 1(2) of Council Joint Action 2003/472/CFSP of 24 June 2003 on the continuation of the European Union cooperation programme for non-proliferation and disarmament in the Russian Federation [2003] OJ L157/69. This joint action was implemented by Council Decision 2003/874/ CFSP of 8 December 2003 implementing Joint Action 2003/472/CFSP with a view to contributing to the European Union cooperation programme for non-proliferation and disarmament in the Russian Federation [2003] OJ L326/49. ³⁰⁴ Art 3 of Council Joint Action 2003/472/CFSP. ³⁰⁵ Further: E Denza, ‘Non-proliferation of Nuclear Weapons: The European Union and Iran’ (2005) 10 Eur Foreign Affairs Rev 294. ³⁰⁶ Art 18(4) EU. ³⁰⁷ S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 307–311; eg Joint Action 95/545/CFSP of 11 December 1995 adopted by the Council on the basis of Article J.3 of the Treaty on European Union with regard to the participation of the Union in the implementing structures of the peace plan for Bosnia-Herzegovina [1995] OJ L309/2, Art 2, which provided for the separate expression of Union, Community, and Member State positions: ‘In association with the Commission, the Presidency will express the position of the European Union within the coordination bodies established by the London Conference. Other Member States participating in these bodies will support the common positions of such bodies. Furthermore, the Council notes that the positions to be taken by the European Communities will be expressed by the Commission.’ ³⁰⁸ See for an earlier and more negative assessment: S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 253–259. For an extensive account of the Presidency’s functions in general

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Presidency level due to the twice-yearly rotation, and the fact that the Presidency has to draw on its own national diplomatic service and the HRCFSP for its CFSP tasks.³⁰⁹ The introduction of a 2½-year running term, as envisaged by New Article 15(5) EU,³¹⁰ and the introduction of a European External Action Service (EEAS) pursuant to New Article 27(3) EU³¹¹ would significantly improve the possibilities for the Presidency to fulfil its functions effectively within the CFSP. Continuity on a daily operational level would under the Treaty of Lisbon, be ensured by the HRUFASP’s presidency over the Foreign Affairs Council.³¹² The possibility is also provided for the Presidency to appoint a special representative with a mandate relating to specific policy issues, which helps alleviate some of the Presidency’s problems as a CFSP actor.³¹³ The role of the Member States in implementing CFSP legal instruments is at least as substantial as their corresponding role regarding Community legal instruments.³¹⁴ As is the case with respect to Article 10 EC in the Community sphere, so the implementation of CFSP legal instruments by the Member States takes place against the background of the solidarity principle in Article 11(2) EU. Pursuant to this principle, the Member States are under an obligation to support the Union’s external and security policy actively and unreservedly ‘in a spirit of loyalty and mutual solidarity’ and to work together to enhance and develop their mutual political solidarity. The Member States are also told to refrain from any action that is contrary to the interests of the Union or likely to ‘impair its effectiveness as a cohesive force in international relations’. The obligations of the Member States as regards, more particularly, the implementation of joint actions and common positions have been explained above in the section on CFSP instruments.³¹⁵ and specifically with regard to the CFSP: F Hayes-Renshaw and H Wallace, The Council of Ministers (2006) 133–161. ³⁰⁹ cf M Trybus, European Union Law and Defence Integration (2005) 73. ³¹⁰ cf Art I-22(1) TC. ³¹¹ cf Art III-296(3) TC. ³¹² New Arts 18 and 27(1) EU (cf Arts I-28(3) and III-296(1) TC). ³¹³ Art 18(5) EU. See S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 259–264 and 311–312. This is a codification of a previously existing practice, and was first put to use as the legal basis of Council Decision 1999/361/EC of 31 May 1999 implementing Common Position 98/633/CFSP defined by the Council on the basis of Article J.2 of the Treaty on European Union concerning the process on stability and good-neighbourliness in South-East Europe [1999] OJ L141/1 (appointing Mr Roumeliotis as EU Special Representative for the Royaumont Process); two recent examples are Council Joint Action 2007/805/CFSP of 6 December 2007 appointing a European Union Special Representative to the African Union [2007] OJ L323/45 (appointing Mr Koen Vervaeke) and Council Joint Action 2008/123/CFSP of 4 February 2008 appointing a European Union Special Representative to Kosovo [2008] OJ L42/88 (appointing Mr Pieter Feith). ³¹⁴ cf S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 304–305. ³¹⁵ chs 4.3.2.3 and 4.3.2.4. Further on the implementation of joint actions and common positions: S Duke and S Vanhoonacker, ‘Administrative Governance in the CFSP: Development and Practice’ (2006) 11 Eur Foreign Affairs Rev 177–179. See also Court of Auditors Special Report No 13/2001 on the management of the common foreign and security policy (CFSP), together with the Council’s replies and the Commission’s replies (pursuant to Article 248(4),

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In international organizations and at international conferences, as well as in third countries, both the diplomatic and consular missions of the Member States and the Commission delegations have to cooperate to ensure that the joint actions and common positions adopted by the Council are complied with and implemented.³¹⁶ An example of the involvement of the different CFSP actors in the implementation of a CFSP measure can be found in the implementation of a joint action adopted in furtherance of the EU Strategy against the Proliferation of Weapons of Mass Destruction (WMD).³¹⁷ The objective of the joint action concerned is to support a project for the implementation of physical protection measures at the Bochvar Institute in Moscow of the Russian Federal Agency for Atomic Energy.³¹⁸ While overall responsibility for implementation of the joint action is given to the Presidency, assisted by the HRCSFP,³¹⁹ Germany is responsible for the technical implementation,³²⁰ and the Commission, assisted by an expert, is entrusted with the task of controlling and evaluating the financial aspects of the implementation.³²¹ The Presidency, assisted by the HRCFSP, has to report to the Council every six months on the implementation of this joint action on the basis of the reports provided by the German Federal Ministry of Foreign Affairs (Auswärtiges Amt). The Commission has to be fully associated in the reporting and other related tasks.³²² Supervision of the implementation of CFSP acts is very different from what happens within the Community. The Court of Justice lacks any substantive jurisdiction within Title V of the EU Treaty,³²³ and therefore cannot review any implementation measures by the Council or the Member States. The Commission is deprived of its function of ‘guardian of the Treaties’,³²⁴ as well as of its power to take the Member States to the Court for failure to fulfil their obligations.³²⁵ A consequence of this lack of involvement of the Commission in the implementation of the CFSP is that the European Parliament cannot pass a motion of censure under Article 201 EC based on the Commission’s role in this policy field.³²⁶ Neither the Commission nor the Parliament, which also lacks any real second subparagraph, EC) (2001/C 338/01) [2001] OJ C338/1, outlining problems with the implementation of joint actions. ³¹⁶ Art 20 EU. ³¹⁷ EU strategy against proliferation of Weapons of Mass Destruction, endorsed by the Council of the European Union on 9 December 2003, 15708/03, and adopted by the European Council on 12 December 2003; further: M Álvarez-Verdugo, ‘Mixing Tools Against Proliferation: The EU’s Strategy for Dealing with Weapons of Mass Destruction’ (2006) 11 Eur Foreign Affairs Rev 417–438. ³¹⁸ Art 1 Council Joint Action 2004/796/CFSP. ³¹⁹ Ibid, Art 2. ³²⁰ Ibid, Art 3. ³²¹ Ibid, Art 4(2) and (4). ³²² Ibid, Art 6 and Annex I, para 5. ³²³ Art 46 EU ³²⁴ Art 211 EC. ³²⁵ Art 226 EC. ³²⁶ cf Art 28(1) EU, which does not list Art 201 EC as one of the EC Treaty Articles applicable to the CFSP. See also K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 637, para 15-006.

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supervisory powers over the Council, can therefore review CFSP implementation measures by the Council or the Member States. However, the Council has to ensure that the Member States comply with the principle of loyal cooperation.³²⁷ The Council, together with the Commission, also has to ensure the consistency and the implementation of the Union’s external activities as a whole.³²⁸ The Council thus has a general supervisory competence with regard to the CFSP. This competence, as well as the supervision of the Council’s own implementation measures, usually takes place within the Council itself. This is not done by any formal procedure: the political logic of the operation of the Council ensures that the Members exert a measure of control over each other.³²⁹ However, the PSC has within the Council also the possibility of monitoring the implementation of agreed CFSP policies, without prejudice to the responsibility of the Presidency and the Commission.³³⁰ None the less, the lack of supervisory powers of the Court, and the fact that substantive review of decisions is mostly done by the institution taking the decision, in casu the Council, means that the EU operates like an ‘ordinary’ international organization to a far greater extent than under the EC Treaty.³³¹ Judicial and parliamentary supervision of CFSP implementation measures by the Member States usually takes place in the national judiciary and parliamentary institutions of the Member States themselves.³³²

4.3.4.2 Implementing the ESDP While the ESDP forms part of the Union’s CFSP,³³³ it occupies a distinctive area within the latter’s structure, following a specific set of rules and its own institutional logic. The Western European Union (WEU) originally provided the EU with an operational capacity to execute the Petersberg tasks.³³⁴ That changed with the ³²⁷ Art 11(2) EU. ³²⁸ Art 3 EU. ³²⁹ cf RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 211, who argues that such political control mechanisms are common in international organizations, and that any more formal correction methods would be likely to harm the further development of the CFSP. ³³⁰ Art 25, para 1 EU. ³³¹ cf HG Schermers and NM Blokker, International Institutional Law: Unity Within Diversity (2003) 493, para 708. ³³² cf K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 637, para 15-006; see further chs 5 and 6.2. ³³³ eg the St. Malo Declaration, which emphasized that ‘[i]t will be important to achieve full and rapid implementation of the Amsterdam provisions on CFSP. This includes the responsibility of the European Council to decide on the progressive framing of a common defence policy in the framework of CFSP’ (emphases added); further: DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 35–36 and 70–73. ³³⁴ For the history of the involvement of the WEU in the ESDP until the Treaty of Nice: DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 47–55; M Trybus, European Union Law and Defence Integration (2005) 80–84 and 100–108.

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Treaty of Nice, which integrated the WEU into the EU, notwithstanding the fact that not all EU Member States are WEU Member States. Pursuant to this take-over, the Council has set up by joint action³³⁵ an ‘Institute for Security Studies’,³³⁶ which incorporates the relevant features of the existing WEU structures and is intended to assist the implementation of the CFSP and the ESDP,³³⁷ and equally by joint action,³³⁸ a ‘European Union Satellite Centre’.³³⁹ The latter again incorporates the relevant features of the already existing WEU structures.³⁴⁰ The Centre’s task is to support the decision-making of the Union within the sphere of the CFSP, in particular of the ESDP, ‘by providing material resulting from the analysis of satellite imagery and collateral data, including aerial imagery as appropriate’.³⁴¹ Both the Institute for Security Studies and the European Union Satellite Centre have their own legal personality³⁴² and operate under the political supervision of the PSC.³⁴³ The 1999 Helsinki European Council decided to establish within the Council a Military Committee in order to enable the Council to assume its responsibilities visà-vis the Petersberg tasks.³⁴⁴ This European Union Military Committee (EUMC) is composed of the Chiefs of Defence (CHODs) represented by their military ³³⁵ Council Joint Action 2001/554/CFSP. ³³⁶ Art 1(1) of Council Joint Action 2001/554/CFSP (headquarters in Paris: Art 1(2)). ³³⁷ Recital (1) and (2) (and see also Art 2) of Council Joint Action 2001/554/CFSP. ³³⁸ Council Joint Action 2001/555/CFSP. ³³⁹ Art 1(1) of Council Joint Action 2001/555/CFSP (headquarters in Torrejón de Ardoz: Art 1(2)). ³⁴⁰ Recital (1) to Council Joint Action 2001/555/CFSP; on the position of Denmark: Recital (5) and Treaty on European Union and the Treaty Establishing the European Communities, Protocol on the Position of Denmark, Art 6 [1997] OJ C340/101. ³⁴¹ Art 2(1) of Council Joint Action 2001/555/CFSP. ³⁴² Art 4 of Council Joint Action 2001/554/CFSP and Art 6 of Council Joint Action 2001/555/ CFSP, respectively. ³⁴³ Art 3 of Council Joint Action 2001/554/CFSP (specifying that the PSC will exercise political supervision over the activities of the Institute, without impinging on the intellectual independence of the Institute in carrying out research and seminar activities) and Art 3 of Council Joint Action 2001/555/CFSP (mentioning that the PSC will issue guidance to the HRCFSP on the Centre’s priorities), respectively. ³⁴⁴ Presidency Conclusions of the Helsinki European Council, 10 and 11 December 1999, Annex 1–Annex IV; see also ibid for the so-called ‘Helsinki Headline Goal’, on which see M Trybus, European Union Law and Defence Integration (2005) 97–100. See further Presidency Conclusions of the Laeken European Council, 14 and 15 December 2001, Annex II, paras A and C. See also Headline Goal 2010, approved by the General Aff airs and External Relations Council on 17 May 2004, endorsed by the European Council of 17 and 18 June 2004, adopted in the Presidency Conclusions of the Brussels European Council, 17 and 18 June 2004, para 62. On the identification of assets required to meet the military goals: DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 76–77. See also ‘A Secure Europe in a Better World’, European Security Strategy, Brussels, 12 December 2003. Further: J Howorth, ‘From Security to Defence: the Evolution of the CFSP’ in C Hill and M Smith (eds), International Relations and the European Union (2005) 188–196; cf R Gosalbo Bono, ‘Some Reflections on the CFSP Legal Order’ (2006) 384–392, who labels the Union’s attitude to international law as one of ‘effective multilateralism’ and takes the European Security Strategy as an example of that attitude. See also P Koutrakos, EU International Relations Law (2006) 460–462.

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representatives (Milreps). It gives military advice and makes recommendations to the PSC, and it provides military direction to the EU Military Staff (EUMS).³⁴⁵ The EUMC is the highest military body established within the Council.³⁴⁶ Its mission is to provide the PSC with military advice and recommendations on all military matters within the EU. Its significance should not be underestimated: it exercises military direction of all military activities within the EU framework.³⁴⁷ While the Union has fully integrated the WEU’s functions, it still has to rely on the Member States’ military capacities for its ESDP operations and tasks, in particular the Petersberg tasks. The PSC exercises overall political control and strategic direction of crisis management operations, and this under the responsibility of the Council.³⁴⁸ However, such operations are carried out by military units made available for this purpose by the Member States.³⁴⁹ ‘To support the Council and the Member States in their effort to improve the EU’s defence capabilities in the field of crisis management and to sustain the ESDP as it stands now and develops in the future’, a European Defence Agency (EDA) has been established.³⁵⁰ Its activities are mainly situated in the field of defence capabilities development, research, acquisition and armaments.³⁵¹ The Agency acts under the Council’s authority,³⁵² and is open to participation by all EU Member ³⁴⁵ For some doubts about the propriety of the legal basis of the EUMS and the EUMC: DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 56–59. Further: Council Decision 2003/479 of 16 June 2003 concerning the rules applicable to national experts and military staff on secondment to the General Secretariat of the Council and repealing the Decisions of 25 June 1997 and 22 March 1999, Decision 2001/41/ EC and Decision 2001/496/CFSP [2003] OJ L160/72. See also Council Agreement (2003/C 321/02) between the Member States of the European Union concerning the status of military and civilian staff seconded to the institutions of the European Union, of the headquarters and forces which may be made available to the European Union in the context of the preparation and execution of the tasks referred to in Article 17(2) of the Treaty on European Union, including exercises, and of the military and civilian staff of the Member States put at the disposal of the European Union to act in this context (EU SOFA) [2003] OJ C321/6; Council Decision 2001/80/CFSP of 22 January 2001 on the establishment of the Military Staff of the European Union [2001] OJ L27/7, Art 1. This Decision was amended by Council Decision 2005/395/CFSP of 10 May 2005 amending Decision 2001/80/CFSP on the establishment of the Military Staff of the European Union [2005] OJ L132/17. ³⁴⁶ Council Decision 2001/79/CFSP of 22 January 2001 setting up the Military Committee of the European Union [2001] OJ L27/4, Annex, para 1. ³⁴⁷ Ibid, Annex, para 2. Further on the EUMC and the EUMS: M Trybus, European Union Law and Defence Integration (2005) 110–111. ³⁴⁸ Art 25, para 2 EU. ³⁴⁹ On the commitment of Member State military and civilian assets to the Union: DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 78–85; see further Presidency Conclusions of the Cologne European Council, 3 and 4 June 1999, Annex III, para 4. On the possibility for the EU to rely on NATO assets and capability: DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 86–90. ³⁵⁰ Art 2(1) of Council Joint Action 2004/551/CFSP. On the EDA and on the economic aspects of security in general: P Koutrakos, EU International Relations Law (2006) 470–476; further: M Trybus, European Union Law and Defence Integration (2005) 319–328. ³⁵¹ Art 1(1) of Council Joint Action 2004/551/CFSP. ³⁵² Ibid, Art 1(2).

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States bound by the joint action (ie not Denmark).³⁵³ It has legal personality³⁵⁴ and has its headquarters in Brussels.³⁵⁵ The Treaty of Lisbon would explicitly provide for the EDA in New Article 42(3), second subparagraph EU,³⁵⁶ which would ‘establish’ the EDA,³⁵⁷ notwithstanding the fact that it already exists and has been established by joint action. It is another example of the apparent ability of the ESDP/CSDP to develop without the need for an unequivocal legal basis in the Treaty.³⁵⁸ The Council can authorize the PSC, for the purpose and duration of a crisis management operation—as determined by the Council—to take the relevant decisions concerning the political control and strategic direction of the operation, without prejudice to Article 47 EU.³⁵⁹ This is a very interesting example of the authorization by the EU Treaty of the delegation of discretionary powers.³⁶⁰ No equivalent possibility exists under the EC Treaty. Hayes-Renshaw and Wallace note that this delegation is purely pragmatic, and is designed to avoid delays in decision-making in situations where time may be of the essence, and ‘where waiting for the nextscheduled Council meeting to take a decision is simply not an option’.³⁶¹ The PSC had a chance of performing this quite far-reaching autonomous role during the military operations it directed in the FYROM and in Congo.³⁶² In both cases, the PSC could amend the operation plan, the chain of command, and the rules of engagement, while decision-making with respect to the objectives and termination of the operation remained with the Council, assisted by the HRCFSP.³⁶³ However, even before the entry into force of the Treaty of Nice, the PSC performed a similar role in providing the ‘political control and strategic direction’ of the EU police mission in Bosnia and Herzegovina.³⁶⁴ Recently, it seems, the PSC has begun actively to run ESDP missions in general (rather than), just ones specifically addressing a military crisis)with the Presidency almost taking a back seat. At the same time, the ESDP is increasingly taking on civilian missions.³⁶⁵ Some examples are the EUJUST THEMIS ³⁵³ Ibid, Art 1(3). ³⁵⁴ Ibid, Art 6. ³⁵⁵ Ibid, Art 1(5). ³⁵⁶ cf Art I-41(3) TC. ³⁵⁷ Further: New Art 45 EU (cf Art III-311 TC). ³⁵⁸ See also ch 4.3.3.2. ³⁵⁹ Art 25, para 3 EU. ³⁶⁰ cf K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 632, para 14-006 and 637, para 15-007, fn 26. ³⁶¹ F Hayes-Renshaw and H Wallace, The Council of Ministers (2006) 85. ³⁶² cf K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 638, para 15-007. ³⁶³ Art 4(1) of Council Joint Action 2003/92/CFSP of 27 January 2003 on the European Union military operation in the Former Yugoslav Republic of Macedonia [2003] OJ L34/26; Art 7(1) of Council Joint Action 2003/423/CFSP of 5 June 2003 on the European Union military operation in the Democratic Republic of Congo [2003] OJ L143/50 and see Art 10 on the powers of the PSC regarding the participation of third states. ³⁶⁴ Art 7, para 2, second dash of Council Joint Action 2002/210/CFSP of 11 March 2002 on the European Union Police Mission [2002] OJ L70/1. ³⁶⁵ Further: DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 77–78. See eg Presidency Conclusions of the Santa Maria da Feira European Council, 19 and 20 June 2000, Annex I, Appendices 3–4; Presidency Conclusions of the Nice European Council, 7, 8, and 9 December 2000, Annex II–Annex IV; Presidency Conclusions of the Göteborg European Council, 15 and 16 June 2001, para 48; Presidency Conclusions of the

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mission to Georgia,³⁶⁶ the EUJUST LEX mission to Iraq,³⁶⁷ both with the aim of strengthening the rule of law,³⁶⁸ and the Aceh Monitoring Mission.³⁶⁹ The latter’s aim was to monitor the relationship between the Indonesian Government and the Free Aceh Movement. However, reconstructive work was also being done that could conceivably have been classified as development cooperation. It appears that, because these missions were carried out by their own national military personnel, the Member States wished to retain as much control as possible. The PSC is an ideal forum for this purpose. Moreover, the PSC has provided a helpful framework of cooperation with third countries in the form of a ‘Committee of Contributors’, which it, for example, established for the Aceh Monitoring Mission.³⁷⁰ There would be no formal way of establishing such a framework via the Commission. The PSC also appoints commanders and heads of missions.³⁷¹ Since 2007, the civilian command structure has been made more akin to the military levels of command through the systematic establishment of a single Brussels European Council, 17 and 18 June 2004, para 62 and the Action Plan for Civilian Aspects of ESDP, adopted by that European Council. ³⁶⁶ Established by Council Joint Action 2004/523/CFSP of 28 June 2004 on the European Union Rule of Law Mission in Georgia, EUJUST THEMIS [2004] OJ L228/21. ³⁶⁷ Established by Council Joint Action 2005/190/CFSP of 7 March 2005 on the European Union Integrated Rule of Law Mission for Iraq, EUJUST LEX [2005] OJ L62/37. ³⁶⁸ On both these missions: P Koutrakos, EU International Relations Law (2006) 468–470. ³⁶⁹ Established by Council Joint Action 2005/643/CFSP of 9 September 2005 on the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission—AMM) [2005] OJ L234/13. ³⁷⁰ Political and Security Committee Decision 2005/860/EC ACEH/1/2005 of 15 November 2005 on the establishment of the Committee of Contributors for the European Union Monitoring Mission in Aceh (Indonesia) (Aceh Monitoring Mission—AMM) [2005] OJ L317/16. It was authorized to do so by the Council in Art 10(3) of Council Joint Action 2005/643/CFSP. Other examples include Political and Security Committee Decision 2005/230/EC Proxima/3/2005 of 4 March 2005 on the setting-up of the Committee of Contributors for the European Union Police Mission (EUPOL Proxima) in the former Yugoslav Republic of Macedonia (FYROM) [2005] OJ L72/25; Political and Security Committee Decision 2005/229/EC EUPM/1/2005 of 4 March 2005 on the setting-up of the Committee of Contributors for the European Union Police Mission (EUPM) in Bosnia and Herzegovina [2005] OJ L72/23; Political and Security Committee Decision 2004/739/CFSP BiH/3/2004 of 29 September 2004 on the setting-up of the Committee of Contributors for the European Union military operation in Bosnia and Herzegovina [2004] OJ L325/64; Political and Security Committee Decision 2003/529/CFSP DRC 2/2003 of 11 July 2003 on the setting up of the Committee of Contributors for the European Union military operation in the Democratic Republic of Congo [2003] OJ L184/13; Political and Security Committee Decision FYROM/1/2003 of 18 February 2003 on the setting-up of the Committee of Contributors for the European Union Military Operation in the Former Yugoslav Republic of Macedonia [2003] OJ C62/1. ³⁷¹ eg Political and Security Committee Decision 2005/714/CFSP BiH/7/2005 of 20 September 2005 on the appointment of the Head of the EU Command Element at Naples for the European Union military operation in Bosnia and Herzegovina [2005] OJ L271/41; Political and Security Committee Decision 2005/483/CFSP BiH/6/2005 of 14 June 2005 on the appointment of an EU Force Commander for the European Union Military Operation in Bosnia and Herzegovina [2005] OJ L173/14; Political and Security Committee Decision 2008/125/CFSP EULEX/1/2008 of 7 February 2008 concerning the appointment of the Head of Mission of the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO [2008] OJ L42/99.

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and identifiable chain of command. The Council has approved new Guidelines for Command and Control Structure for EU Civilian Operations in Crisis Management to that effect.³⁷² The new structure can be illustrated through the European Union Rule of Law Mission in Kosovo (EULEX Kosovo).³⁷³ The Guidelines notably provide for a Civilian Planning and Conduct Capability to be established within the Council Secretariat, the director of which is to be the Civilian Operation Commander for each civilian crisis management operation.³⁷⁴ He or she is to exercise command and control at strategic level for the planning and conduct of all civilian crisis management operations, under the political control and strategic direction of the PSC and the overall authority of the HRCFSP.³⁷⁵ He or she is to ensure proper and effective implementation of the Council’s and the PSC’s decisions, including by issuing instructions at strategic level as required to the Head of Mission and providing him or her with advice and technical support.³⁷⁶ He or she will, however, be above the Head of Mission in the chain of command.³⁷⁷ The role of EU Special Representatives in relation to civilian ESDP missions was also clarified. Among other things, they are to provide local political guidance to Heads of civilian ESDP missions,³⁷⁸ and EU Special Representatives and the Civilian Operations Commander are to consult each other.³⁷⁹ However, the PSC remains in its key position and provides political control and strategic direction of EULEX Kosovo under the responsibility of the Council.³⁸⁰ The Council has also authorized the PSC to take the relevant decision pursuant to Article 25, paragraph 3 EU, which includes the power to amend the operation plan and the chain of command, as well as powers to take subsequent decisions regarding the appointment of the Head of Mission.³⁸¹ The PSC is to report regularly to the Council and is to receive regular reports by the Civilian Operation

³⁷² Namely on 18 June 2007. They are referred to, for example, in recital (2) of Council Joint Action 2007/806/CFSP of 6 December 2007 amending Joint Action 2005/797/CFSP on the European Union Police Mission for the Palestinian Territories [2007] OJ L323/50. See the Presidency Report on ESDP to the European Council at Brussels, 18 June 2007, Doc no 10910/07 CFSP 789, para 34. For a fuller account, see HC European Scrutiny Committee 25th Report (HC Paper (2006–2007) no 41) 68–69, in which the Guidelines are referred to as ‘a Restricted document’, and on which the short description of their content here is based. ³⁷³ Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO [2008] OJ L42/92. ³⁷⁴ Art 7(1) of Council Joint Action 2008/124/CFSP. ³⁷⁵ Art 7(2) of Council Joint Action 2008/124/CFSP. ³⁷⁶ Art 7(3) of Council Joint Action 2008/124/CFSP. ³⁷⁷ Art 11(5) of Council Joint Action 2008/124/CFSP. ³⁷⁸ Art 3(c) of Council Joint Action 2008/123/CFSP of 4 February 2008 appointing a European Union Special Representative to Kosovo [2008] OJ L42/88. ³⁷⁹ Art 11(2) of Council Joint Action 2008/123/CFSP. ³⁸⁰ Arts 11(2) and 12(1) of Council Joint Action 2008/124/CFSP. ³⁸¹ Art 12(2) of Council Joint Action 2008/124/CFSP and see Political and Security Committee Decision 2008/125/CFSP EULEX/1/2008 of 7 February 2008 concerning the appointment of the Head of Mission of the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO [2008] OJ L42/99.

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Commander and the Head of Mission.³⁸² It may also establish a Committee of Contributors and take the relevant decisions on acceptance or otherwise of proposed contributions.³⁸³ The increasing delegation of decision-making competence to the PSC strikingly illustrates the development of the Council’s infrastructure for implementation of the CFSP, and particularly of the ESDP. This would reinforce the distinctiveness of CFSP implementation in comparison to implementation in the first pillar in a significant way, and would similarly reinforce the specificity of the ESDP within the CFSP legal order. Questions could, however, be asked as to the extent to which the present tasks of the PSC still comply with the requirement that crisis management tasks delegated to it should respect the Community legal order.³⁸⁴ The Council has also, on occasion, delegated important decision-making powers to the HRCFSP. This was the case with regard to the EU Monitoring Mission (EUMM) to the Western Balkans.³⁸⁵ The primary objective of the Mission was to contribute to the effective formulation of EU policy towards the Western Balkans. This was to be done through information gathering and analysis in line with directions from the HRCFSP,³⁸⁶ who thus had the power to steer the entire mission. The HRCFSP was equally responsible for defining the tasks of the EUMM, acting in close coordination with the Presidency, limited only by the requirement that those tasks had to be in accordance with the policy regarding the Western Balkans, as adopted by the Council.³⁸⁷ The HRCFSP had the overall responsibility for ensuring that the Mission functioned ‘flexibly and in a streamlined manner’, which implied his regularly re-examining the ‘functions and the geographical territory covered by the EUMM so as to continue to adapt the internal organisation of the Mission to the priorities of the European Union in the Western Balkans’.³⁸⁸ The HRCFSP also had the responsibility of regularly reporting to the Council, both on the latter aspect as on accomplishments of the EUMM in general.³⁸⁹ This situation has been criticized for delegating too much power to the HRCFSP and thereby putting any serious form of accountability in jeopardy.³⁹⁰ Such concerns would certainly not be assuaged should the HRCFSP be replaced by the HRUFASP under the Treaty of Lisbon.³⁹¹

³⁸² Art 12(3) and (4) of Council Joint Action 2008/124/CFSP. ³⁸³ Art 13(3) of Council Joint Action 2008/124/CFSP. ³⁸⁴ Arts 25, para 3 and 47 EU; see P Koutrakos, EU International Relations Law (2006) 456–457. ³⁸⁵ See Council Joint Action 2000/811/CFSP of 22 December 2000 on the European Union Monitoring Mission [2000] OJ L328/53. ³⁸⁶ Ibid, Art 1(1). ³⁸⁷ Ibid, Art 2(1). ³⁸⁸ Ibid, Art 2( 3). ³⁸⁹ Ibid, Art 2(2)–(3). ³⁹⁰ S Peers, ‘Common Foreign and Security Policy’ (2001) 20 YEL 536. ³⁹¹ ch 6.3.2.

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4.4 Conclusions The absence of the technique of detailed and specific attribution of competences typical of the Community is the most striking particularity in the way competences are attributed within the CFSP. The CFSP objectives do determine the Union’s competences to the extent that any CFSP action should be connected to them, in accordance with the principle of conferral, but the absence of detailed and specific attribution of competences indicates that the principle of conferral applies in a different sense in the CFSP legal order. The most significant particularity with regard to the operation of the principle of conferral in EC external relations, the doctrine of implied competences, is applicable to the EU Treaty by virtue of international law, but the nature of the attribution in Title V would seem to leave very little scope for implied competences. An analysis of the specific CFSP legal instruments reveals the absence of any legislative character in most—though not all—of them. This is so because the existing CFSP legal instruments are adapted to the purpose of making executive decisions legally binding, which makes them a function of the particularity of the CFSP as it stands. The particularity of CFSP decision-making with regard to autonomous measures lies in the predominance of the institutions in which the Member States are directly represented: the European Council and the Council. Moreover, in the Community, with only a few exceptions, nothing can happen without an initiative from the Commission, which also has the main responsibility for implementing measures that may be necessary at Community level. The formal distinction between the preparation and the adoption of Council measures is, however, unknown to the CFSP, and the Council, its Presidency, and various Council bodies have the lead in implementing adopted measures. This has made it necessary to equip the Council with a new infrastructure designed for the development and implementation of CFSP measures. For example, the Council has the possibility to authorize the PSC for the purpose and for the duration of a crisis management operation to take the relevant decisions concerning the political control and strategic direction of the operation: no equivalent possibility exists under the EC Treaty for such a delegation of discretionary powers. The most significant particularity of the CFSP treaty-making procedure lies in the minimal role of the Commission, and the complete dominance of the Council and the Presidency, which corresponds to the situation regarding the adoption of autonomous CFSP measures. The Council cannot on its own initiative either open or conduct negotiations under Article 300 EC, while it has complete control over treaty-making under Article 24 EU. Supervision of the implementation of CFSP acts is also very different from what happens within the Community. The Court of Justice lacks any substantive jurisdiction within Title V of the EU Treaty, and neither the Commission nor the

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Parliament, which also lacks any real supervisory powers over the Council, can review CFSP implementation measures by the Council or the Member States. The Council’s general supervisory competence with regard to the CFSP, as well as the supervision of the Council’s own implementation measures, usually takes place within the Council itself. This makes the EU in the CFSP operate much more like an ‘ordinary’ international organization than under the EC Treaty.

5 Democracy and the Rule of Law in EU Foreign Policy 5.1 Introduction Democracy does not consist purely of the fulfilment of certain procedural requirements, such as periodical elections.¹ It is of course an essential aspect of democracy that citizens are able to participate in decision-making in their polity. Such participation is, however, only possible and meaningful if certain enabling conditions are met, such as the effective protection of fundamental rights² and the rule of law.³ ¹ cf R Harrison, Democracy (1993) 231: ‘The arguments for democracy are also arguments for rights, or other entrenched provisions, controlling its operation and preventing it eliminating itself ’; cf AK Sen, Identity and Violence: The Illusion of Destiny (2006) 53; S Marks, The Riddle of All Constitutions: International Law, Democracy and the Critique of Ideology (2000); J Crawford and S Marks, ‘The Global Democracy Deficit: An Essay in International Law and Its Limits’ in J Crawford, International Law as an Open System: Selected Essays by James Crawford (2002) 137–155. ² The Union’s adherence to human rights is as fundamental for its external as it is for its internal policies and can be considered as a general objective of EU external action (see P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 472). However, the respect of fundamental rights in EU foreign policy requires an analysis of the constitutional framework and of the substantive external policies itself, which exceeds the scope of this book; see eg M Fouwels, ‘The European Union’s Common Foreign and Security Policy and Human Rights’ (1997) 15 Netherlands Q of Human Rights 291–324; P Alston (ed.), The EU and Human Rights (1999); P Alston and JHH Weiler, ‘An “Ever Closer Union” in Need of a Human Rights Policy: The European Union and Human Rights’ in P Alston (ed.), The EU and Human Rights (1999) 3–66; A Clapham, ‘Where is the EU’s Human Rights Common Foreign Policy, and How is it Manifested in Multilateral Fora?’ in P Alston (ed.), The EU and Human Rights (1999) 627–683; K Smith, ‘The EU, human rights and relations with third countries: “foreign policy” with an ethical dimension’ in K Smith and M Light (eds), Ethics and Foreign Policy (2001) 185–203; P Eeckhout, ‘The EU Charter of Fundamental Rights and the Federal Question’ (2002) 39 CML Rev 945–994; P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 465–484; L Bartels, Human Rights Conditionality in the EU’s International Agreements (2005); A Williams, EU Human Rights Policies: A Study in Irony (2005); T Ahmed and I de Jesús Butler, ‘The European Union and Human Rights: An International Law Perspective’ (2006) 17 Eur J Intl L 771–801; A Clapham, Human Rights Obligations of Non-State Actors (2006) 177–194. ³ On the connection between human rights, democracy, and the rule of law, see the preamble to the European Convention on Human Rights: ‘. . . Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend; Being resolved, as the governments

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The Union is founded on these principles,⁴ and they are objectives of its CFSP⁵ and its development cooperation policy.⁶ The first section of this chapter contains an analysis of the role of democratic accountability in the Union’s foreign policy. The focus will be predominantly on democratic accountability within the CFSP, as it is especially controversial in that part of the Union’s external relations. It should, however, be pointed out that the involvement of the European Parliament in Community decisionmaking is most far-reaching in the legislative sphere. The European Parliament is not much involved in the executive aspects of Community policies, and its exclusion from the executive aspects of the CFSP, therefore, does not represent as stark a contrast as it might appear.⁷ There is, however, a clear contrast with the Community regarding the involvement of the European Parliament in treatymaking. One of the most startling differences between the first and second pillars is that the Court of Justice has no jurisdiction with respect to the latter. Examining the extent of and the justification for that exclusion is the topic of the second section of this chapter. The omission of Title V from the list in Article 46 EU of matters governed by the EU Treaty for which the Court has been given jurisdiction, means that any analysis of the CFSP has to concentrate on the text of the EU Treaty itself, and of instruments adopted thereunder.⁸ There is, therefore, a marked methodological contrast between the legal analysis of EC external relations and of the CFSP. Nevertheless, some limited possibilities exist for a measure of judicial control over certain aspects of the CFSP. The section on the rule of law in the CFSP first considers those possibilities, before proceeding to an examination of the changes the Treaty of Lisbon would bring to this situation. of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration . . .’. The Court of Justice consistently holds, as it did recently in Case C-305/05 Ordre des barreaux francophones and germanophone and others [2007] ECR I-5305, para 29, that ‘fundamental rights form an integral part of the general principles of law whose observance the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international instruments for the protection of human rights on which the Member States have collaborated or to which they are signatories. In that regard, the ECHR has special significance’; see also, for example, Case C-292/05 P PKK and KNK v Council [2007] ECR I-439, para 76 and the case-law cited there. See further: A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (2002) 14–15; S Marks and A Clapham, International Human Rights Lexicon (2005) 61–70. ⁴ Art 6(1) EU (also listing liberty). ⁵ Art 11(1), fifth indent EU. ⁶ Art 177(2) EC. ⁷ Similarly: JHH Weiler, ‘Neither Unity nor Th ree Pillars—The Trinity Structure of the Treaty on European Union’ in J Monar, W Ungerer, and W Wessels (eds), The Maastricht Treaty on European Union: Legal Complexity and Political Dynamic (1993) 61. ⁸ cf P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 139.

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5.2 Legitimacy, Accountability, and Democracy in EU Foreign Policy 5.2.1 The European Parliament Article 21 EU sets out a number of basic possibilities for Parliament’s involvement in the process of policy formulation. The Presidency has to consult Parliament on ‘the main aspects and the basic choices’ of the CFSP and it has to ensure that the views of the European Parliament are ‘duly taken into consideration’. The Presidency and the Commission also have to keep Parliament regularly informed of the development of the CFSP. The imprecision in formulating the Council’s and the Commission’s obligations, as exemplified by expressions such as ‘main aspects’, ‘basic choices’, and ‘regularly’ is not encouraging for Parliament’s possibilities for scrutiny.⁹ Indeed, the practical application of these obligations has proven to be less than adequate. The Council and the Commission inform Parliament of the most important developments in the CFSP, but the information often arrives too late for Parliament to be able to communicate its views to the Council in time for them to have any influence.¹⁰ Parliament also has power to ask questions of the Council or make recommendations to it. It is required to hold an annual debate on the ‘progress in implementing’ the CFSP,¹¹ which is limited to an ex post facto review of the reports the European Council submits to the European Parliament after each of its meetings and of the yearly written report on the progress achieved by the Union.¹² All this implies that Parliament is kept at a distance from any particular CFSP measure, and can only exercise influence on the general policy choices.¹³ Parliament has on several occasions expressed dismay at this situation. In its 2006 resolution on the annual report from the Council to the European Parliament on the main aspects and basic choices of CFSP, it noted that the Council continues to maintain the ‘a posteriori approach’ of merely submitting a descriptive list of CFSP activities carried out in the previous year, instead of consulting Parliament beforehand as provided for in Article 21 EU and the Interinstitutional Agreement of 6 May 1999.¹⁴ The European Parliament also ⁹ Similarly: M Trybus, European Union Law and Defence Integration (2005) 77. ¹⁰ cf RA Wessel, ‘Good Governance and EU Foreign, Security and Defence Policy’ in DM Curtin and RA Wessel (eds), Good Governance and the European Union: Reflections on Concepts, Institutions and Substance (2005) 219–220; P Koutrakos, EU International Relations Law (2006) 392–393. ¹¹ Art 21, para 2 EU. ¹² Art 4, para 3 EU. ¹³ cf RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 95. ¹⁴ Between the European Parliament, the Council, and the Commission on budgetary discipline and improvement of the budgetary procedure [1999] OJ C172/1.

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emphasized that it had repeatedly asked the Council to replace this practice with a genuine consultation of Parliament in order to ensure that Parliament’s views have a real impact on the choices made for the following year.¹⁵ On 17 May 2006, a new Interinstitutional Agreement was concluded. Under that Agreement, the Council Presidency each year is to consult the European Parliament on what is described as ‘a forward-looking Council document’, which will be transmitted by 15 June for the year in question.¹⁶ This yearly document sets out ‘the main aspects and basic choices of the CFSP, including the financial implications for the general budget of the European Union and an evaluation of the measures launched in the year n-1’. Furthermore, the Council Presidency is to keep the European Parliament informed by holding joint consultation meetings at least five times a year, ‘in the framework of the regular political dialogue on the CFSP’.¹⁷ In its 2007 resolution, Parliament notes that it expects that the Council’s ‘a posteriori approach’ will ‘henceforth be corrected by means of a constructive interpretation of Points 42 and 43’ of the new 2006 Interinstitutional Agreement. Parliament adds that ‘the Council should once and for all replace that practice with a genuine consultation of Parliament so as to ensure that Parliament’s views have a real impact on the choices made for the following year’.¹⁸ Parliament does have the possibility of flexing its muscles in foreign policy in an indirect way, namely through the budgetary procedure. Given that the EC Treaty budgetary procedure applies to any CFSP expenditure charged to the EC budget,¹⁹ the European Parliament has the power to refuse to charge certain administrative or operational expenditure to the general budget if it should deem that necessary.²⁰ The Interinstitutional Agreement of 17 May 2006 sets out this power in more detail.²¹ In its yearly document setting out the main aspects and basic choices of the CFSP, the Council Presidency also has to elaborate on the financial implications of the CFSP for the general budget of the European Union. ¹⁵ European Parliament resolution on the annual report from the Council to the European Parliament on the main aspects and basic choices of CFSP, including the financial implications for the general budget of the European Union—2004 (2005/2134(INI)) [2006] OJ C287E/59, points A–B; cf European Parliament resolution on the annual report from the Council to the European Parliament on the main aspects and basic choices of CFSP, including the financial implications for the general budget of the European Communities—2003 (8412/2004–2004/2172(INI)) [2006] OJ C33E/573, point A. ¹⁶ Interinstitutional Agreement of 17 May 2006 between the European Parliament, the Council and the Commission on budgetary discipline and sound financial management [2006] OJ C139/1, point 43. ¹⁷ Ibid. ¹⁸ European Parliament resolution on the annual report from the Council to the European Parliament on the main aspects and basic choices of CFSP, including the financial implications for the general budget of the European Union—2005 (2006/2217(INI)) [not yet published in the OJ], points A–B. ¹⁹ Art 28(4) EU. ²⁰ See the budgetary procedure in Art 272 EC. ²¹ Interinstitutional Agreement of 17 May 2006, points 42–43; cf Interinstitutional Agreement of 6 May 1999 points 39–40.

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Moreover, the Council is under an obligation immediately to send Parliament a ‘financial statement’, containing an estimate of the costs envisaged, ‘whenever it adopts a decision in the field of CFSP entailing expenditure’. The Commission has to inform the budgetary authority²² once every quarter about the implementation of CFSP actions and the financial forecasts for the remaining period of the year.²³ Under the 2001 Framework Agreement on relations between Parliament and the Commission,²⁴ the latter has also taken it upon itself ‘within its abilities’ to keep the European Parliament fully and promptly informed about its proposals and initiatives within the sphere of the CFSP. The 2005 Framework Agreement²⁵ replaces these arrangements by an obligation for the Commission within the area of the CFSP to ‘improve the involvement of Parliament in such a way as to take Parliament’s views as far as possible into account’.²⁶ The Council and Parliament have also agreed on an Interinstitutional Agreement on the latter’s access to sensitive information in the field of security and defence policy.²⁷ Parliament can equally make use of some supervisory possibilities that are not limited to the CFSP: Article 28(1) EU makes a number of EC Treaty institutional mechanisms applicable to the CFSP. The European Parliament may, acting by a majority of its Members, request the Commission to submit any appropriate proposal on matters on which it considers that a CFSP action is required.²⁸ The Commission is under an obligation to reply orally or in writing to questions put to it by the European Parliament or by its Members.²⁹ Parliament also has a right to hear the Council.³⁰ Finally, Parliament, in deciding on the approval of the Commission’s appointment, may take into account the Commission’s views with regard to the CFSP.³¹ ²² viz Parliament and the Council together: see further K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 393–394, para 10-016. ²³ Interinstitutional Agreement of 17 May 2006, point 43; cf Interinstitutional Agreement of 6 May 1999, para 40. ²⁴ Framework Agreement on relations between the European Parliament and the Commission [2001] OJ C121/122, annexed to the Rules of Procedure of the European Parliament (‘the 2001 Framework Agreement’) para 12. ²⁵ Framework Agreement on relations between the European Parliament and the Commission [2006] OJ C117E/123, annexed to the Rules of Procedure of the European Parliament (‘the 2005 Framework Agreement’). ²⁶ 2005 Framework Agreement, para 9. ²⁷ Interinstitutional Agreement of 20 November 2002 between the European Parliament and the Council concerning access by the European Parliament to sensitive information of the Council in the field of security and defence policy [2002] OJ C298/1. Cf European Parliament decision of 23 October 2002 on the implementation of the Interinstitutional Agreement governing European Parliament access to sensitive Council information in the sphere of security and defence policy [2002] OJ C298/4. ²⁸ Arts 192 EC and 28 EU. ²⁹ Arts 197, para 3 EC and 28 EU. ³⁰ Arts 197, para 4 EC and Art 28 EU; see W van Gerven, The European Union: A Polity of States and Peoples (2005) 103. ³¹ Arts 214(2) EC and 28 EU; cf RA Wessel, ‘Good Governance and EU Foreign, Security and Defence Policy’ in DM Curtin and RA Wessel (eds), Good Governance and the European Union: Reflections on Concepts, Institutions and Substance (2005) 221.

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Additional guidance on the Parliament’s role in the sphere of the CFSP can be found in its Rules of Procedure (RPEP). The Parliament can invite the HRCFSP to ‘make statements’ in Parliament at least four times a year.³² He or she will be invited at least four times a year to attend meetings of the committee responsible for the CFSP in order to make a statement and answer questions. The HRCFSP may also be invited on other occasions, whenever the responsible committee considers this necessary, or at his or her initiative.³³ In practice, the HRCFSP has sought a constructive cooperation with Parliament and has been willing to respond to these invitations and to discuss foreign policy matters with MEPs.³⁴ The Parliament can also invite a special representative to make a statement to the committee responsible, whenever one is appointed by the Council with a mandate in relation to particular policy issues. A special representative can be heard at Parliament’s or at his/her initiative.³⁵ The committee responsible for the CFSP may draw up recommendations to the Council in its areas of responsibility after obtaining authorisation from the Conference of Presidents³⁶ or, alternatively, on a proposal³⁷ from a political group or at least 40 Members.³⁸ The possibility of urgency—so often heard as one of the arguments to exclude parliaments from taking part in foreign policy-making—has also been catered for: the authorization by the Conference of Presidents may then be granted by the President of the European Parliament, who may likewise authorize an emergency meeting of the committee in question.³⁹ The EU’s strict language regime is somewhat relaxed, in that recommendations in urgent cases do not need to be translated in all the official languages of the Union⁴⁰ for their adoption in the Committee;⁴¹ this does not, however, apply to plenary sessions. Oral amendments to the written recommendations are also allowed in cases of urgency, which means that members may not object to oral amendments being put to the vote in committee. Finally, in all urgent cases designated as such by the President of the European Parliament, recommendations shall be deemed adopted unless, ³² 87(1) RPEP. 103 RPEP (on statements by the Commission, Council, and European Council) is applicable to these statements. ³³ 87(2) RPEP. ³⁴ RA Wessel, ‘Good Governance and EU Foreign, Security and Defence Policy’ in DM Curtin and RA Wessel (eds), Good Governance and the European Union: Reflections on Concepts, Institutions and Substance (2005) 221. ³⁵ 87(3)RPEP; eg Dr Schwarz-Schilling, the High Representative and EU Special Representative in Bosnia and Herzegovina (appointed by Council Joint Action 2006/49/CFSP of 30 January 2006 appointing the European Union Special Representative in Bosnia and Herzegovina [2006] OJ L26/21) was heard by the Committee on Foreign Affairs on 10 October 2006: European Parliament, Committee on Foreign Affairs, Meeting Tuesday 10 October 2006, Published Draft Agenda, AFET(2006)1010_1, pt. 7. ³⁶ Which consists of the President of Parliament and the chairmen of the political groups: 23(1) RPEP. ³⁷ 114 RPEP. ³⁸ 90(1) RPEP. ³⁹ 90(2) RPEP. ⁴⁰ Required pursuant to 138 RPEP. ⁴¹ 90(3) RPEP.

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before the beginning of the part-session, at least 40 Members submit a written objection.⁴² That a legislative assembly can never be as efficient and swift as the executive in assessing and reacting to international situations is a classic argument against parliamentary involvement in foreign policy. Nevertheless, with regard to the European Parliament, it should be remarked that there have been situations in which it has reacted more quickly and efficiently than either the Council or the Commission to certain acute international situations. For example in July 1994, the European Parliament sent a mission to Rwanda, which came back with an extensive report containing concrete proposals, preceding by quite some time both a mission by the foreign affairs ministers Trojka and a standpoint by the Council incorporating in general terms some of the Parliament’s proposals.⁴³ There exist a number of reasons why the European Parliament would in some situations be able to react more quickly than the Council. If the situation is one of great geopolitical significance, the Council may perhaps be torn by internal divisions between the Member States, as well as being held back by diplomatic and geo-strategic considerations. Moreover, because of its lack of formal competences with regard to foreign policy in general and the CFSP in particular, the European Parliament may feel less constrained by considerations of prudence or calculations of interests. Lack of competence and lack of formal impact, therefore, may give the Parliament more leeway to take positions than it might have should it possess more competences. The lack of parliamentary control of foreign policy in general and of the CFSP in particular is a central feature of EU foreign policy. Indeed, the main decision-making organs of the CFSP, the Council and the European Council, are not accountable to Parliament. While Parliament does have the power to put questions to the Council or make recommendations to it,⁴⁴ those possibilities are lacking completely with regard to the European Council.⁴⁵ The problematic character of the democratic accountability of foreign policy is, however, not limited to the EU, and it has been argued that the situation in the EU is a confirmation of the old prejudice surrounding government’s exclusive role in foreign policy, which is to be exercised in total secrecy and away from annoying representative organs and the public eye.⁴⁶ Every constitutional system arguably has great difficulties in balancing the need for an efficient foreign policy against the need for an accountable foreign policy. It should be emphasized that the problem ⁴² 90(4) RPEP. ⁴³ S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 273, who also refers to a 1996 crisis in Belarus, to which the European Parliament reacted more rapidly and efficiently than the Council. ⁴⁴ Art 21, para 2 EU. ⁴⁵ cf RA Wessel, ‘Good Governance and EU Foreign, Security and Defence Policy’ in DM Curtin and RA Wessel (eds), Good Governance and the European Union: Reflections on Concepts, Institutions and Substance (2005) 219–220. ⁴⁶ DM Viola, European Foreign Policy and the European Parliament in the 1990s: An investigation into the role and voting behaviour of the European Parliament’s political groups (2000) 43.

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of democratic accountability cannot be confined to the question of how far to let parliamentary assemblies get involved in foreign policy-making. It is none the less clear that this is the main focus of the debate in most of the world’s democratic constitutional systems. Traditionally, parliaments have exercised influence over external relations through their involvement in treaty-making, the sending of troops abroad, their control over the budget, as well as their possible influence (through the leadership of the major parties) in negotiations leading up to a coalition agreement or a general road-map for a new government.⁴⁷ Specifically with regard to the CFSP, limited though the European Parliament’s competences may be, it has consistently attempted to use them imaginatively, providing a constant stream of resolutions and reports on all kinds of foreign policy questions. It may come as a surprise that, at least with regard to substantive foreign policy questions, the European Parliament’s viewpoints have not only been noted, but also taken into account by the Council.⁴⁸ By directing attention to certain matters, the Parliament has managed to put them on the agenda,⁴⁹ for example with regard to human rights.⁵⁰ It has also made certain matters again into an acceptable topic of discussion, an eminent example being foreign and security policy,⁵¹ thanks to its Draft Treaty establishing a European Union.⁵² Indeed, Bieber argues that the European Parliament’s activities in foreign policy provide ‘the most striking example of a parliament’s modern role in this field . . . No national parliament so frequently debates events of other parts of the world, denounces violations of human rights, peace and freedom.’⁵³ Matters are different with regard to reports and resolutions of the Parliament with regard to constitutional reform in EU external relations, which have been often ignored or even derided by actors and commentators.⁵⁴ Of course, asking whether the European Parliament has had an impact on the Union’s foreign policy is different from asking whether it has thereby managed to increase the overall legitimacy and accountability of the Union’s external relations. This question is inherently intertwined with the broader question whether the European Parliament has been able to increase the Union’s legitimacy in general. Sadly, a further exploration exceeds the scope of this book.⁵⁵ ⁴⁷ S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 47–50. See, for example, regarding the USA: L Henkin Foreign Aff airs and the US Constitution (2nd edn, 1996) 63–130. ⁴⁸ See RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 219. ⁴⁹ S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 273–274. ⁵⁰ A Clapham, Human Rights and the European Community: A Critical Overview (1991) 72–73. ⁵¹ K De Gucht, Besluitvorming in de Europese Unie (1994) 67. ⁵² Draft Treaty establishing the European Union of 14 February 1984, Bulletin of the European Communities 8–26. ⁵³ R Bieber, ‘Democratic Control of International Relations of the European Union’ in E Cannizzaro (ed.), The European Union as an Actor in International Relations (2002) 110. ⁵⁴ E Denza, The Intergovernmental Pillars of the European Union (2002) 337. ⁵⁵ There is an abundant literature on the EU’s democratic accountability. Examples include AM Arnull and D Wincott (eds), Accountability and Legitimacy in the European Union (2002);

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5.2.2 National parliaments and EU foreign policy The national parliaments of the Member States could play an important complementary role to the European Parliament in providing democratic scrutiny of the Union’s foreign policy, though their role could be more important in the democratic scrutiny of the CFSP than with regard to the first pillar.⁵⁶ While the Council, as the most important decision-making organ in the Union’s foreign policy in general and the CFSP in particular, is not subject to scrutiny by the European Parliament with regard to the latter, the ministers in the Council remain under scrutiny by their respective national parliaments. However, the intensity of this scrutiny differs greatly between the constitutional systems of the Member States. Lenaerts and Van Nuffel have identified three elements indispensable for making national parliamentary scrutiny of the actions of the Member States’ governments in the Council possible:⁵⁷ (1) The Member State parliament needs to be in possession of the necessary information concerning the activities of the Union. To help ensure this, a protocol was attached to the Treaty of Amsterdam, which provides that Commission consultation documents and legislative proposals should be forwarded to the Member State parliaments.⁵⁸ Legislative proposals should be made available at least six weeks before their discussion within the Council in order to allow Member State parliaments sufficient time to discuss them.⁵⁹ CFSP acts are very rarely based on Commission proposals and even then the protocol does not apply to them.⁶⁰ This protocol is therefore only of importance for those parts of the Union’s external relations falling under the Community.⁶¹ This situation would not change under the Treaty of Lisbon: the protocol that would replace the Amsterdam protocol limits the documents to be forwarded to the national parliaments to Commission consultation documents and ‘draft legislative acts’,⁶² which would exclude any CFSP act.⁶³ C Harlow, Accountability in the European Union (2002); A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (2002). ⁵⁶ E Denza, The Intergovernmental Pillars of the European Union (2002) 325; cf D Thym, ‘Reforming Europe’s Common Foreign and Security Policy’ (2004) 10 Eur LJ 13. ⁵⁷ K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 524–525, para 11-006. See further in general on the role of national parliaments within the EU: P Kiiver, The National Parliaments in the European Union: A Critical View on EU Constitution-Building (2006). ⁵⁸ Treaty of Amsterdam, Protocol on the role of national parliaments in the European Union [1997] OJ C340/113. ⁵⁹ Pt 3 of the Protocol on the role of national parliaments in the European Union, attached to the Treaty of Amsterdam, OJ 1997 C340/113. ⁶⁰ cf E Denza, The Intergovernmental Pillars of the European Union (2002) 331. ⁶¹ See RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 230; E Denza, The Intergovernmental Pillars of the European Union (2002) 330. ⁶² New Art 12(a) EU and Treaty on European Union, Treaty on the Functioning of the European Union, Treaty establishing the European Atomic Energy Community, Protocol on the role of national parliaments in the European Union [2007] OJ C306/148, Art 2. ⁶³ New Art 24(1), subpara 2 EU.

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Some national constitutional systems have provided for internal rules with a broader application.⁶⁴ (2) It has to be possible actually to exert influence on the member of the Council in question. Besides the six-week minimum scrutiny period provided for by the protocols mentioned above, different arrangements are provided for by Member State laws in order to enable national parliaments to exert influence on their minister in the Council. For example, Danish ministers are within the Council only allowed to defend those views that have been approved in advance by the parliamentary committee on European affairs of the Folketing.⁶⁵ This is, however, certainly not the case in all Member States.⁶⁶ (3) It has to be possible to call to account the member of the Council in question for his/her actions and votes in the Council. In the many instances in which the Member States’ parliaments are not informed in advance of positions or actions their governments will take within the Council, the parliaments can always hold the ministers accountable post factum. The members of the Council are constantly aware of this fact while negotiating.⁶⁷ Notwithstanding that voting within the Council is secret, the Council has agreed to disclose the outcome of votes with regard to its legislative work.⁶⁸ This would again exclude CFSP matters. With regard to the latter, it has to be kept in mind that decision-making is mostly by unanimity, which provides certainty for the national parliaments on how their minister has acted in the Council. In the rare cases that CFSP legal instruments are adopted by QMV, the Council can decide to publish the results of the vote by a unanimous Council or COREPER decision taken at the request of one of their members.⁶⁹ How far these three conditions are met depends largely on the constitutional law of the Member States. This implies a caveat for relying too much on parliamentary scrutiny by the national parliaments in order to compensate for the lack of scrutiny at the Union level.⁷⁰ Reliance on national parliaments has the ⁶⁴ eg Standing Orders of the House of Commons, No.143—Public Business—2005(2), Ordered by the House of Commons to be printed 10th October 2005, Published by the authority of the House of Commons, London, The Stationery Office. ⁶⁵ See K Hagel-Sørensen and H Rasmussen, ‘The Danish Administration and Its Interaction With the Community Administration’ (1985) 22 CML Rev 279–286. On the similar situation in Sweden and Finland: respectively U Bernitz, ‘Sweden and the European Union: On Sweden’s Implementation and Application of European Law’ (2001) 38 CML Rev 915, and P Aalto, ‘Accession of Finland to the European Union: First Remarks’ (1995) 20 ELR 625–626; cf, however, E Denza, The Intergovernmental Pillars of the European Union (2002) 333, who argues that the mandate system of the Folketing is highly inflexible and therefore not suitable to be extended more generally. ⁶⁶ See further K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 527–529, para 11-008. ⁶⁷ E Denza, The Intergovernmental Pillars of the European Union (2002) 323. ⁶⁸ 9(1) RPC. ⁶⁹ 9(2)(a) RPC. ⁷⁰ See the negative evaluation by W Nicoll and TC Salmon, Understanding the European Union (2000) 106–107.

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inevitable side-effect that the intensity of democratic control of the CFSP differs according to the Member States’ constitutions. This would imply that some national parliaments might have a greater say in the CFSP than others.⁷¹ This effect may be enhanced by a more political factor as well. Arguably, the smaller Member States have fewer alternatives to cooperation within the EU than larger ones if they wish to have an impact on the international scene. They will therefore probably be more willing to compromise on particular EU external policies than larger Member States in order not to jeopardize the EU external policy itself, which undoubtedly lessens their impact on the policy.⁷² While parliamentary control by Member State parliaments is a necessary complement to scrutiny by the European Parliament, it cannot be a replacement.⁷³ Apart from formal influence, national parliaments can also have a more indirect influence on the Union’s foreign policy by holding wide consultations and informed discussions. By making public the results of such reflections and debates, national parliaments can initiate broad public debates and exert influence on the policy-making process within the Union.⁷⁴

5.2.3 Foreign policy and open government Article 1 EU requires decisions of the Union to be taken ‘as openly as possible’.⁷⁵ The importance of open government for democracy has been well stated by Advocate General Tesauro:⁷⁶ Only where there is appropriate publicity of the activities of the legislature, the executive and the public administration in general, is it possible for there to be effective, efficient supervision, inter alia at the level of public opinion, of the operations of the governing organization and also for genuinely participatory organizational models to evolve as regards relations between the administration and the administered.

Council meetings are not public,⁷⁷ except when deliberating on acts to be adopted in accordance with the co-decision procedure,⁷⁸ which excludes all CFSP acts. The General Affairs and External Relations Council must hold a public policy debate every year on the Council’s annual operational programme and, if ⁷¹ cf S Douglas-Scott, Constitutional Law of the European Union (2002) 133. ⁷² See C Lord, ‘Accountable and Legitimate? The EU’s International Role’ in C Hill and M Smith (eds), International Relations and the European Union (2005) 125. ⁷³ Similarly: RA Wessel, ‘Good Governance and EU Foreign, Security and Defence Policy’ in DM Curtin and RA Wessel (eds), Good Governance and the European Union: Reflections on Concepts, Institutions and Substance (2005) 250. ⁷⁴ cf E Denza, The Intergovernmental Pillars of the European Union (2002) 333–335, who cites the UK’s House of Lords as a good example. ⁷⁵ See also Art 15(1) TFEU (see the identical Art I-50(1) TC). ⁷⁶ Opinion in Case C-58/94 Netherlands v Council [1996] ECR I-2169, para 14; cf on truth and politics and its connection with democracy and liberty: B Williams, Truth and Truthfulness: An Essay in Genealogy (2002) 206–213. ⁷⁷ Art 5(1) RPC. ⁷⁸ Art 8(1) RPC.

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appropriate, on the Commission’s annual work programme. This annual policy debate is the subject of ‘public transmission by audiovisual means’.⁷⁹ The Council or the COREPER can decide by QMV that the Council has to hold at least one public debate on important new legislative proposals that are not subject to the co-decision procedure, and on a case-by-case basis that other public debates are to be held on important issues affecting the interests of the Union. The Presidency, any member of the Council or the Commission can propose issues or specific subjects for such debates which, again, will be ‘the subject of public transmission by audiovisual means’.⁸⁰ The Council discloses the outcome of votes with regard to its legislative work,⁸¹ which again excludes CFSP matters. However, the Council or COREPER can decide by a unanimous decision taken at the request of one of their members to publish the results of the vote on a CFSP legal instrument.⁸² The Council has, by QMV, adopted rules on security, pursuant to Article 24 RPC.⁸³ Meetings of national governments will not normally be public when foreign policy matters are being discussed, and it is unsurprising and not unreasonable that the Council should operate in a similar manner. However, this clearly need not always be the case. The debate about transparency in the EU should open up a broad debate and an explicit reflection, both within the EU and within national governments, on which foreign policy matters need to be discussed privately and which should be exposed to public scrutiny, starting from a presumption of the need for openness and requiring a specific justification for secrecy. CFSP acts are not automatically published under the current constitutional structure. The Council or the COREPER have to decide unanimously, on a caseby-case basis, whether the common strategies, joint actions and common positions should be published in the Official Journal by the Secretary-General or the Deputy Secretary-General of the Council.⁸⁴ The Council or COREPER also decide, on a case-by-case basis and taking account of possible publication of the basic act, whether (i) measures implementing joint actions, (ii) joint actions, common positions or ‘any other decision’ adopted on the basis of a common strategy, and (iii) ‘other Council acts, such as sui generis decisions or resolutions’ should be published in the Official Journal by the Secretary-General or the Deputy Secretary-General.⁸⁵ When they are not published in the Official Journal, common strategies, joint actions and common positions, and measures implementing CFSP acts have to be notified to their addressees by the Secretary-General of the Council, the Deputy Secretary-General or a Director-General acting on their behalf.⁸⁶ None the less, publication of CFSP acts, including of sui generis ⁷⁹ Art 8(2) RPC. ⁸⁰ Art 8(3) RPC. ⁸¹ Art 9(1) RPC, as the Council is obliged to do pursuant to Art 207(3), subpara 2 EC. ⁸² Art 9(2)(a) RPC. ⁸³ See Council Decision 2001/264/EC of 19 March 2001 adopting the Council’s security regulations [2001] OJ L101/1. ⁸⁴ Art 17(3) RPC; cf Art 17(4) RPC. ⁸⁵ Art 17(4)(a)–(b) and (d) RPC. ⁸⁶ Art 18(2)(b) and (d) RPC.

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decisions, appears to be very common, as will be readily apparent from an examination of the Official Journal. Under the Treaty of Lisbon, decisions that do not specify to whom they are addressed are to be published in the Official Journal.⁸⁷ As mentioned above, however, decisions would appear to be the only legal instruments available to the Union for defining actions to be undertaken or positions to be taken, as well as for the implementation of decisions providing for such actions or positions.⁸⁸ This would seem to imply that, unless the Union decides to define an action to be undertaken or a position to be taken or to implement such a decision by way of a decision with a specific addressee (such as a Member State or even all the Member States),⁸⁹ CFSP decisions would have to be mandatorily published in the Official Journal. With regard to access to documents, the Treaty of Amsterdam has introduced Article 255 EC,⁹⁰ which grants any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State a right of access to European Parliament, Council and Commission documents that applies within the CFSP sphere.⁹¹ The Court of First Instance has also expressly held that the rules on transparency and access to documents developed in Community law equally apply to CFSP documents.⁹² Exceptions are none the less allowed when disclosure of the documents concerned would endanger public interests and public security. The Court also recognizes the Council’s discretion flowing from its political responsibilities within the CFSP. The Council has to determine on that basis the possible consequences that disclosure of information may have for the EU’s international relations. The Court of First Instance ruled that in those circumstances, its review must be limited to verifying whether the procedural rules have been complied with, the contested decision is properly reasoned, and the facts have been accurately stated, and whether there has been a manifest error of assessment of the facts or a misuse of powers.⁹³ This marginal or procedural review is eminently suited for foreign policy matters that involve a large degree of discretion, as will be argued below. In general, the Court of First Instance seems to adopt a pragmatic and flexible approach towards access to documents: it has applied a proportionality test and has ruled that partial access should be

⁸⁷ Art 297(2), subpara 2 TFEU. Cf the Opinion of Sharpston AG in Case C-345/06 Heinrich [2006] OJ C281/19, fn 52; and see ch 3.3.4. ⁸⁸ New Art 25 EU; see ch 4.3.2.7. ⁸⁹ In which case the decision is to be notified to those to whom it is addressed: Art 297(2), subpara 3 TFEU. ⁹⁰ On the relationship between Arts 254 and 255 EC and its implications for Regulation (EC) 1049/2001 of 30 May 2001of the European Parliament and the Council regarding public access to European Parliament, Council and Commission documents [2001] OJ L145/43, see the Opinion of Sharpston AG in Case C-345/06 Heinrich [2006] OJ C281/19, points 54–59. ⁹¹ Pursuant to Art 28(1) EU. ⁹² Case T-174/95 Svenska Journalistförbundet v Council [1998] ECR II-2289, para 81; Case T-14/98 Heidi Hautala v Council [1999] ECR II-2489, para 42. ⁹³ Case T-14/98 Heidi Hautala v Council [1999] ECR II-2489, paras 71–72.

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granted to a document if only one part should remain undisclosed in the public interest.⁹⁴ The Court of First Instance further clarified its case-law on access to documents within the CFSP sphere in the Kuijer judgment.⁹⁵ It held that the mere fact that certain documents contain information or negative statements about the political situation, or the protection of human rights, in a third country does not necessarily mean that access to them may be denied on the basis that there is a risk that the public interest may be undermined. That fact, ‘in itself and in the abstract’, is not a sufficient basis for refusing a request for access. Moreover, such documents do not concern directly or primarily the relations of the EU with the countries concerned. Refusal of access to such reports must be founded on an analysis of factors specific to the contents or the context of each report, from which it can be concluded that disclosure of such a document would pose a danger to a particular public interest. The Court of First Instance also remarked that such information frequently relates to facts that have already been made public, for example how the political, economic, or social situation has developed in the country concerned.⁹⁶ In the summer of 2000, the Council unilaterally amended Council Decision 93/731/EC of 20 December 1993 on public access to Council documents:⁹⁷ first through COREPER, which adopted a decision on 26 July 2000, and then by the Council itself on 14 August 2000.⁹⁸ The Council decided that the public should be denied access to documents classified as ‘TRÈS SECRET/TOP SECRET, SECRET or CONFIDENTIEL’⁹⁹ on matters concerning the security and defence of the Union or of one or more of its Member States or on military or non-military crisis management. This autonomous action by the Council has been termed the ‘Solana Decision or “coup”’ and was concocted during the European Parliament’s 2000 summer recess. Dr Solana had argued that these amendments were necessary to maintain the functioning of the CFSP and to satisfy the EU’s NATO partners. Parliament was not amused and neither were certain national governments, in particular the Dutch, who challenged the Council’s ⁹⁴ Ibid, paras 85–86. See also P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 418. ⁹⁵ Case T-211/00 Aldo Kuijer v Council [2002] ECR II-485; see also Case T-188/98 Aldo Kuijer v Council [2000] ECR II-1959. Cf RA Wessel, ‘Good Governance and EU Foreign, Security and Defence Policy’ in DM Curtin and RA Wessel (eds), Good Governance and the European Union: Reflections on Concepts, Institutions and Substance (2005) 231. ⁹⁶ Case T-211/00 Aldo Kuijer v Council [2002] ECR II-485, paras 60–63. ⁹⁷ [1993] OJ L 340/43. ⁹⁸ Council Decision 2000/527/EC of 14 August 2000 amending Decision 93/731/EC on public access to Council documents and Council Decision 2000/23/EC on the improvement of information on the Council’s legislative activities and the public register of Council documents [2000] OJ L212/9. ⁹⁹ See Art 2(1) of the Decision of the Secretary-General of the Council/High Representative for the Common Foreign and Security Policy of 27 July 2000 on measures for the protection of classified information applicable to the General Secretariat of the Council [2000] OJ C239/1.

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decision before the Court of First Instance, parallel to a separate challenge by the European Parliament. A compromise was eventually reached by the Swedish Presidency in the autumn of 2000 after reportedly difficult tripartite negotiations between the Commission, the Council and the European Parliament. As a result, Regulation (EC) 1049/2001 of the European Parliament and the Council regarding public access to European Parliament, Council and Commission documents was adopted on 30 May 2001.¹⁰⁰ This regulation explicitly applies to the CFSP¹⁰¹ and determines that institutions have to refuse access to a document where disclosure would undermine the protection of the public interest as regards public security, defence and military matters, and international relations, as well as the financial, monetary or economic policy of the Community or a Member State.¹⁰² Documents affecting public security, defence and military matters also constitute the category of ‘sensitive documents’. These originate from the institutions or the agencies established by them, from Member States, third countries or international organizations, and are classified as ‘TRÈS SECRET/TOP SECRET’, ‘SECRET’ or ‘CONFIDENTIEL’—the same categories as in the Solana Decision—in accordance with the rules of the institution concerned.¹⁰³ Applications for access have to be handled ‘only by those persons who have a right to acquaint themselves with those documents’. The contrary would have perhaps been rather surprising. These persons also have to assess which references to sensitive documents could be made in the public register.¹⁰⁴ Sensitive documents are recorded in the register or released only with the consent of the originator.¹⁰⁵ None the less, an institution that refuses access to a sensitive document has to give the reasons for its decision.¹⁰⁶ The rules of the institutions concerning sensitive documents are to be made public and the Commission and the Council have to inform the European Parliament regarding sensitive documents in accordance with arrangements agreed between the institutions.¹⁰⁷ The regulation adopts a narrow interpretation of the ‘general principles and limits on grounds of public or private interest’ governing the right of access to documents that had to be determined by the Council acting in accordance with the co-decision procedure within two years of the entry into force of the Treaty of Amsterdam.¹⁰⁸ It does not contain any specific conditions or limitations applicable to the public access to documents in the sphere of the CFSP, which can be found in other documents.¹⁰⁹ It has been argued that the regulation in fact goes beyond the ‘Solana coup’ in some respects: the exceptions are not restricted to foreign, security, and defence documents, but cover international relations in general and the monetary or ¹⁰⁰ ¹⁰¹ ¹⁰³ ¹⁰⁶ ¹⁰⁷ ¹⁰⁹

[2001] OJ L145/43; in general: P Craig, EU Administrative Law (2006) 354–359. Recital 7 of Reg 1049/2001. ¹⁰² Art 4(1)(a). Art 9(1). ¹⁰⁴ Art 9(2). ¹⁰⁵ Art 9(3). In a manner that does not harm the interests protected in Art 4: Art 9(4). Art 9(6)–(7). ¹⁰⁸ Art 255(2) EC. eg Council Decision 2001/264/EC.

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economic policy of the Community or a Member State. Moreover, the reasons for restricting or denying access to documents are still too vague, and hence imply the possibility of increasingly broad interpretations.¹¹⁰ This may be the rather high price to pay for the further development of the Union’s foreign and security policy and notably for closer cooperation with NATO.¹¹¹ The Court of Justice appears to be very restrained in its review of decisions of institutions refusing access to documents on the basis of public interest. In its judgment in the Sison case, the Court drew a parallel with judicial review of compliance with the principle of proportionality, where the Court has held that the Community legislature must be allowed a broad discretion in areas which involve political, economic, and social choices on its part, and in which it is called upon to undertake complex assessments. The legality of a measure adopted in those fields can thus be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue.¹¹² The Court confirmed the Court of First Instance’s finding, as regards the scope of the judicial review of the legality of a decision of the Council refusing public access to a document on the basis of one of the exceptions relating to the public interest provided for in Article 4(1)(a) of Regulation No 1049/2001, that the Council must be recognized as ‘enjoying a wide discretion for the purpose of determining whether the disclosure of documents relating to the fields covered by those exceptions could undermine the public interest’ and that ‘the Community Court’s review of the legality of such a decision must therefore be limited to verifying whether the procedural rules and the duty to state reasons have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error of assessment or a misuse of powers’.¹¹³ The Court further also held that the purpose of Regulation No 1049/2001 is to give the general public a right of access to documents of the institutions and not ‘to lay down rules designed to protect the particular interest which a specific individual may have in gaining access to one of them’. Even assuming that Mr Sison had a right to be informed in detail of the nature and cause of the accusation made against him, which led to his inclusion on a list of people whose funds were to be frozen, and even if such right entailed access to documents held by the Council, such a right could not be exercised by having recourse to the mechanisms for public access to ¹¹⁰ RA Wessel, ‘Good Governance and EU Foreign, Security and Defence Policy’ in DM Curtin and RA Wessel (eds), Good Governance and the European Union: Reflections on Concepts, Institutions and Substance (2005) 233–234. ¹¹¹ See Council Decision 2003/211/CFSP of 24 February 2003 concerning the conclusion of the Agreement between the European Union and the North Atlantic Treaty Organisation on the Security of Information [2003] OJ L80/35. ¹¹² The Court referred to Case C-344/04 IATA and ELFAA [2006] ECR I-403, para 80 and the case-law there cited. ¹¹³ Case C-266/05 P Sison v Council [2007] ECR I-1233, paras 33–34, confirming the judgment of the Court of First Instance in Joined Cases T-110/03, T-150/03, and T-405/03 Sison v Council [2005] ECR II-1429, paras 46–47.

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documents implemented by Regulation No 1049/2001.¹¹⁴ The Court also sanctioned the Council’s brief statement of reasons to the effect that disclosure of the documents would give the persons who were the subject of that information the opportunity to undermine the action taken by the public authorities, and as regards the involvement of third states in the fight against terrorism. It held that the brevity was justified by the need not to undermine ‘the sensitive interests protected by the exceptions to the right of access established by the first and third indents of Article 4(1)(a) of Regulation No 1049/2001 through disclosure of the very information which those exceptions are designed to protect’.¹¹⁵ The Court here shows substantial deference to the Council and its approach to judicial review here seems fairly ‘hands-off ’. While on a more general level such an approach may assuage fears about the Court’s approach to international relations should it ever be granted wider jurisdiction—notably in the second pillar—it is questionable whether quite such a light touch is justified in access to documents cases. Requiring a less Delphic statement of reasons from the institutions to justify their refusal of access to a document would, for example, not necessarily conflict with the interests such a refusal seeks to protect. Surely a more balanced approach to the conflicting interests of ensuring the ‘widest possible access to documents’¹¹⁶ and the need for secrecy could be found? A more successful avenue for Mr Sison proved to be raising the fact that measures had been taken against him without his having had any access to the confidential documents and information on the basis of which those measures had been taken before the Court of First Instance within the context of a plea alleging infringement of the rights of defence and the right to a fair trial. The Court held that there ‘is a close link between the right to an effective judicial remedy and the obligation to state reasons’ and referred to the settled case-law according to which the Community institutions’ obligation to state the reasons on which a decision is based¹¹⁷ is intended to enable the Community judicature to exercise judicial review of the decision and the persons concerned to know the reasons for the measure adopted so that they can defend their rights and ascertain whether or not the decision is well founded. Moreover, the parties concerned can make genuine use of their right to a judicial remedy only if they have precise knowledge of the content of and the reasons for the act in question.¹¹⁸ The Court concluded that the contested decision did not satisfy the requirement of a statement ¹¹⁴ Case C-266/05 P Sison v Council [2007] ECR I-1233, paras 43–48, confirming the judgment of the Court of First Instance in Joined Cases T-110/03, T-150/03, and T-405/03 Sison v Council [2005] ECR II-1429, paras 52–55. ¹¹⁵ Case C-266/05 P Sison v Council [2007] ECR I-1233, paras 80–83, confirming the judgment of the Court of First Instance in Joined Cases T-110/03, T-150/03, and T-405/03 Sison v Council [2005] ECR II-1429, paras 62–63. ¹¹⁶ Art 1(a) of Reg 1049/2001. ¹¹⁷ Art 253 EC. ¹¹⁸ Case T-47/03 Sison v Council [2003] OJ C101/41, paras 137 and 185–198, and the case-law cited there.

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of reasons as it did no more than state that it had been ‘decided’ to adopt an up-to-date list of the persons, groups, and entities to which the regulation at issue applied. ‘Such general and formulaic wording’, the Court held, ‘is tantamount to a total failure to state reasons’. The Court further specified what it understood as an acceptable statement of reasons by holding that, inasmuch as the Council intended to base the decision originally challenged on certain judicial decisions taken by national courts, the statement of reasons given for the contested decision ought to have mentioned, at the very least, those national decisions, and subject to their possibly being of a confidential nature, to have indicated the main reasons why the Council took the view, in the exercise of its discretion, that the applicant was to be the subject of such a decision on the basis of those national decisions. Moreover, in stating the reasons for the subsequent decisions to freeze funds, the Council ought, subject to the same reservations, to have indicated the main reasons why, after re-examination, it considered that there were still grounds for the freezing of the applicant’s funds.¹¹⁹ The Court of First Instance accordingly annulled Council Decision 2006/379/EC of 29 May 2006¹²⁰ insofar as it concerned Mr Sison.

5.3 The Rule of Law in the CFSP 5.3.1 Introduction The possibility of access to an independent judiciary and of judicial review is an essential aspect of the rule of law in most understandings of this ‘essentially contested concept’.¹²¹ The Union’s professed attachment to the rule of law in both its internal and its external policies thus prompts the question to what extent judicial review plays a role in the Union’s foreign policy.¹²² The judiciary’s crucial role in ¹¹⁹ Case T-47/03 Sison v Council [2003] OJ C101/41, paras 216–217. ¹²⁰ Implementing Art 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2005/930/EC [2006] OJ L144/21. ¹²¹ cf J Waldron, ‘Is the Rule of Law an Essentially Contested Concept (In Florida)?’ (2002) 21 L and Philosophy 137–164. For the difference between formal and substantive conceptions of the rule of law: P Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ [1997] PL 467–487; an eminent example of the former is J Raz, ‘The Rule of Law and Its Virtue’ (1977) 93 LQR 195–211, and of the latter R Dworkin, A Matter of Principle (1985) 11–12. See in general eg BZ Tamanaha, On the Rule of Law: History, Politics, Theory (2004); N MacCormick, Rhetoric and the Rule of Law: A Theory of Legal Reasoning (2005); Lord Bingham, ‘The Rule of Law’ (2007) 66 CLJ 67–85. Specifically on the rule of law in the EU: FG Jacobs, The Sovereignty of Law: the European Way (2007), who argues inter alia that the traditional concept of sovereignty is incompatible with the rule of law, at 5. ¹²² cf the Opinion of Mengozzi AG in Case C-354/04 P Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti v Council [2007] ECR I-1579 and Case C-355/04 SEGI, A. Zubimendi Izaga, A. Galarraga v the Council [2007] ECR I-1657, point 77: ‘it must be held that, if the Union is based on the principle of the rule of law (Article 6(1) EU), its institutions and the Member States of which it is composed cannot be exempted from judicial review of the compatibility of their acts

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a democratic system of preventing discrepancy between the law as declared and as administered¹²³ makes the courts an obvious focal point for a discussion of the rule of law in the EU’s external relations. As the role of the Court of Justice within EC external relations has been analysed above,¹²⁴ the following discussion will focus on judicial control by the Court within the sphere of the CFSP. The role of the national courts of the Member States in this respect will be examined in the section on the CFSP and the ‘new legal order’.¹²⁵ The possibility of bringing cases related to EU external relations before the International Court of Justice or other international courts and tribunals exceeds the scope of this book.¹²⁶

5.3.2 The Court of Justice of the European Communities and the CFSP 5.3.2.1 Scope for judicial control under existing constitutional arrangements In the Airport Transit Visas judgment¹²⁷ the Court first showed its firm intention to police the border between the first pillar and the third pillar, and by implication the second pillar. Perhaps unsurprisingly, not all Member States accepted the ‘border police’ role of the Court of Justice without putting up a fight. In with the Treaty, in particular Article 6(2) EU, even where they act on the basis of Titles V and VI of the EU Treaty’. ¹²³ L Fuller, The Morality of Law (1969) 81; cf the Opinion of Mengozzi AG in Case C-354/04 P Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti v Council [2007] ECR I-1579 and Case C-355/04 SEGI, A. Zubimendi Izaga, A. Galarraga v the Council [2007] ECR I-1657, point 101. ¹²⁴ ch 3.5. ¹²⁵ ch 6.2; see also ch 6.3.1. ¹²⁶ See eg Segi and Gestoras Pro-Amnistía and Others v Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain,Sweden and the United Kingdom (dec.), nos 6422/02 and 9916/02, ECHR 2002-V, and Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi (Bosphorus Airways) v Ireland [GC], no. 45036/98, ECHR 2005-VI, in which the European Court of Human Rights held that that a Contracting Party is responsible for all acts and omissions of its organs regardless of whether they were a consequence of domestic law or of the necessity to comply with international legal obligations. ‘Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party’s “jurisdiction” from scrutiny under the Convention’ (para 153) and see the Concurring Opinion of Judge Ress in the latter case. On the Bosphorus case: P Eeckhout, ‘General Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 296–297. Note that pursuant to Art 292 EC, Member States undertake not to submit a dispute concerning the interpretation or application of the EC Treaty to any method of settlement other than those provided for therein. After the entry into force of the Treaty of Lisbon, Art 292 EC will become Art 344 TFEU, whereby Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein. This would appear to exclude any possibility for the Member States to submit a dispute to, for example, the International Court of Justice on any matter concerning both the Treaty on the Functioning of the European Union and the EU Treaty, hence including the CFSP (cf with similar effect: Art III-375(2) TC). On the submission of a case to an arbitral tribunal under the United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3; 21 ILM 1261 (1982): Case C-459/03 Commission v Ireland [2006] ECR I-4635, paras 120–139. ¹²⁷ Case C-170/96 Commission v Council [1998] ECR I-2763.

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particular, the United Kingdom argued that the Court lacked the jurisdiction to decide the case. The Commission’s application to the Court was intended to hear the Court declare that the joint action¹²⁸ adopted by the Council on the basis of Article K.3(2) EU in fact fell within the scope of Article 100c EC, and should have been based on that provision. The UK, however, argued that the joint action, because it had been properly adopted under Article K.3(2) EU, was not a measure that could be annulled by the Court, pursuant to Article 230 EC.¹²⁹ The Court disagreed.¹³⁰ It pointed out that, pursuant to what is now Article 47 EU, none of the policies in the EU may ‘affect’ the provisions of the EC Treaty. It is true that Article 46 (ex-Article L) EU excludes the second and third pillars from the Court’s jurisdiction. However, the same Article confers jurisdiction on the Court with regard to Article 47 EU. The Court therefore has to ensure that an act such as the one in question, which the Council claimed fell under Article K.3(2) EU, does not encroach upon the competences attributed to the Community by the EC Treaty. The Court concluded that it had jurisdiction to consider the Commission’s application, and hence to review the content of the joint action at issue in order to ascertain whether or not it affected the competences of the Community within the meaning of Article 47 EU, and to annul the joint action if it should have properly been based on Article 100c EC.¹³¹ While the Court lacks any substantive jurisdiction over the second pillar, after the Airport Transit Visas judgment there was no doubt regarding its intention to guard the areas over which it does have jurisdiction by closely scrutinizing, and if necessary annulling, any measure that crosses the border.¹³² As regards the relationship between the first and the third pillar, the Court confirmed this in its judgments in the Environmental Penalties and Ship-Source Pollution cases. For example, in the Environmental Penalties case, the Court annulled Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law¹³³ adopted under Title VI of the EU Treaty, because it could have been properly adopted under Article 175 EC and hence infringed Article 47 EU.¹³⁴ More recently, in the Ship-Source Pollution case, the ¹²⁸ Joint Action 96/197/JHA of 4 March 1996 adopted by the Council on the basis of Article K.3 of the Treaty on European Union on airport transit arrangements [1996] OJ L63/8. ¹²⁹ Case C-170/96 Commission v Council [1998] ECR I-2763, paras 12–13. ¹³⁰ And in doing so, followed Fenelly AG, who had based his argument inter alia on Case 22/70 Commission v Council [1971] ECR 263, Joined Cases C-181/91 and C-249/91 European Parliament v Council and Commission [1993] ECR I-3685, and Case C-316/91 European Parliament v Council [1994] ECR I-625, where the Court had scrutinized Council decisions, and decisions of the Member States meeting within the Council, to ascertain whether they came within the scope of the EC Treaty: Opinion in Case C-170/96 Commission v Council [1998] ECR I-2763, points 7–18. ¹³¹ Case C-170/96 Commission v Council [1998] ECR I-2763, paras 14–18. ¹³² See also the Opinion of Mengozzi AG in Case C-91/05 Commission v Council [2005] OJ C115/10, points 31 and 56–60. Further: RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 229; see also E Denza, The Intergovernmental Pillars of the European Union (2002) 319–321; further: ch 8. ¹³³ [2003] OJ L29/55. ¹³⁴ Case C-176/03 Commission v Council [2005] ECR I-7879, paras 51–55.

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Court similarly annulled Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution,¹³⁵ which could have been validly adopted under Article 80(2) EC.¹³⁶ The Small Arms and Light Weapons case¹³⁷ finally gave the Court the chance to confirm that the approach originally adopted in the Airport Transit Visas judgment also applies to the relationship between the first and the second pillar.¹³⁸ There, the Commission sought the annulment, for lack of competence, 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.¹³⁹ In addition, the Commission sought a declaration of illegality, pursuant to Article 241 EC, of 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.¹⁴⁰ As Advocate General Mengozzi pointed out, there was no doubt that the application for the annulment of the contested decision was admissible in that it sought a finding that the act adopted by the Council in the framework of Title V of the EU Treaty encroached on Community development cooperation competences, and neither the Council nor any of the parties intervening in its support denied that it was.¹⁴¹ None the less, the Council, supported by the Spanish and UK governments, argued that the Court had no jurisdiction to rule on the legality of a measure falling within the CFSP, in particular with regard to the plea based on the legality of the contested joint action.¹⁴² The Court, however, recalled that it followed from Article 46(f) EU that the provisions of the EC Treaty concerning the powers of the Court and the exercise of those powers are applicable to Article 47 EU. Referring to the Airport Transit Visas,¹⁴³ Environmental Penalties,¹⁴⁴ and Ship-Source Pollution¹⁴⁵ cases, it held that under Article 47 EU, ‘none of the provisions of the EC Treaty is to be affected by a provision of the Treaty on European Union’ and that ‘therefore, the task of the Court [is] to ensure that acts which, according to the Council, fall within the scope of Title V of the [EU Treaty] and which, by their nature, are capable of having legal effects, do not encroach upon the powers conferred by the EC Treaty on the Community’. The Court concluded that it had jurisdiction to consider the action for annulment brought by the Commission under Article 230 ¹³⁵ ¹³⁶ ¹³⁷ ¹³⁸ ¹⁴⁰ ¹⁴² ¹⁴³ ¹⁴⁴ ¹⁴⁵

[2005] OJ L255/164. Case C-440/05 Commission v Council [2006] OJ C22/10, paras 67–69. Case C-91/05 Commission v Council [2005] OJ C115/10. See further ch 8.3.2. ¹³⁹ [2004] OJ L359/65. [2002] OJ L191/1. ¹⁴¹ Opinion at point 29. Case C-91/05 Commission v Council [2005] OJ C115/10, para 30. Case C-170/96 Commission v Council [1998] ECR I-2763, para 16. Case C-176/03 Commission v Council [2005] ECR I-7879, paras 38–39. Case C-440/05 Commission v Council [2006] OJ C22/10, paras 52–53.

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EC and, in that context, to consider the pleas invoked in accordance with Article 241 EC insofar as they alleged an infringement of Article 47 EU.¹⁴⁶ The Court found that the Council had infringed Article 47 EU by adopting the contested decision on the basis of Title V of the EU Treaty, even though it also fell within development cooperation policy.¹⁴⁷ The Court of First Instance has ruled that it has jurisdiction to hear a request for damages to the extent that the applicants invoke an encroachment upon Community competences. The Court repeated that it had jurisdiction to review the content of a legal instrument adopted within the framework of the EU Treaty to verify whether the act in question infringes the Community’s competences. The Court of First Instance concluded that it had jurisdiction to review PJCCM acts to the extent that the applicants invoke a misuse of a procedure committed by the Council consisting in an encroachment of Community competences that has resulted in depriving the applicants of all judicial protection.¹⁴⁸ This reasoning could also be applied by analogy to the CFSP.¹⁴⁹ Curtin and Dekker plausibly argue on the basis of a line of reasoning drawn from Foto-Frost,¹⁵⁰ that a national Court must refer a request for a preliminary ruling to the Court of Justice under Article 234 EC, should the question arise whether a CFSP (or PJCCM) measure implemented by national law should not have been taken under the EC Treaty instead.¹⁵¹ As mentioned above, the Court also has jurisdiction to review compliance with the rules on transparency and access to documents. In Heidi Hautala v Council of the European Union, the Court of First Instance decided that the fact that the document to which access was requested came under Title V of the EU Treaty has no effect on the jurisdiction of the Court. The fact that under Article 46 EU ¹⁴⁶ Case C-91/05 Commission v Council [2005] OJ C115/10, paras 31–34. ¹⁴⁷ Ibid, paras 109–110. ¹⁴⁸ Case T-338/02 Segi, Araitz Zubimendi Izaga, and Aritza Galarraga v Council, Order of 7 June 2004 [2004] ECR II-1647, paras 41–42; See also Case T-333/02 Gestoras Pro-Amnistía and Others v Council, Order of 7 June 2004 [2004] OJ C228/40. However, the Court of First Instance dismissed both cases, holding that the absence of a legal remedy in se does not infringe Community competences. For a highly critical appraisal, see P Eeckhout, Does Europe’s Constitution Stop at the Water’s Edge? Law and Policy in the EU’s External Relations (2005) 21–22; both cases went to the Court of Justice on appeal: Case C-354/04 P Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti v Council [2007] ECR I-1579 and Case C-355/04 P SEGI, A. Zubimendi Izaga, A. Galarraga v Council [2007] ECR I-1657. See also Case T-201/99 Royal Olympic Cruises Ltd, Valentine Oceanic Trading Inc., Caroline Shipping Inc., Simpson Navigation Ltd, Solar Navigation Corporation, Ocean Quest Sea Carriers Ltd, Athena 2004 SA, Freewind Shipping Company, Elliniki Etairia Diipirotikon Grammon AE v Council and Commission, Order of 12 December 2000 [2000] ECR II-4005, in which the legality of a CFSP measure was indirectly questioned and the payment of damages requested from the Community. The application was rejected as manifestly unfounded for lack of a sufficient causal link between the actions of the Community institutions and the damage. ¹⁴⁹ cf also MG Garbagnati Ketvel, ‘The Jurisdiction of the European Court of Justice in Respect of the Common Foreign and Security Policy’ (2006) 55 ICLQ 91. ¹⁵⁰ Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECR 4199. ¹⁵¹ D Curtin and I Dekker, ‘The EU as a “Layered” International Organization: Institutional Unity in Disguise’ in P Craig and G de Búrca (eds), The Evolution of EU Law (1999) 123.

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the Court of First Instance does not have jurisdiction to assess the lawfulness of acts falling within Title V thus does not exclude its jurisdiction to rule on public access to those acts.¹⁵² Finally, the possibility exists of subjecting CFSP measures to an indirect judicial review, in cases where CFSP acts are implemented by Community acts. This happened, for example, in the OMPI case,¹⁵³ where the Court of First Instance annulled, in so far as it concerned the applicant, Council Decision 2005/930/ EC of 21 December 2005,¹⁵⁴ because the contested decision did not ‘contain a sufficient statement of reasons’ and was ‘adopted in the course of a procedure during which the applicant’s right to a fair hearing was not observed’.¹⁵⁵ It seems, however, that the Court of First Instance does not consider the possibility for such a review to exist where those persons and entities were originally listed in a UN Security Council resolution, and the EU is merely implementing such a UN listing, as happened, for example, in the Yusuf, ¹⁵⁶ Kadi,¹⁵⁷ Ayadi,¹⁵⁸ ¹⁵² Case T-14/98 Heidi Hautala v Council [1999] ECR II-2489, paras 41–42. ¹⁵³ Case T-228/02 Organisation des Modjahedines du Peuple d’Iran (OMPI) v Council [2006] ECR II-4665. See also the following cases in which the Court of First Instance for similar reasons annulled the contested decisions, insofar as they concerned the applicants: Case T-327/03 STICHTING AL-AQSA v Council and Commission [2003] OJ C289/30 (annulment of Council Decision 2006/379/EC of 29 May 2006 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2005/930/EC [2006] OJ L144/21 insofar as it concerned ‘Stichting Al-Aqsa’); Case T-229/02 PKK v Council [2002] OJ C233/32 (annulment of Council Decision 2002/460/EC of 17 June 2002 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2002/334/EC [2002] OJ L 160/26 insofar as it concerned the Kurdistan Workers’ Party (PKK)); Case T-253/04 Kongra-Gel and Others v Council [2004] OJ C262/28 (annulment of Council Decision 2004/306/EC of 2 April 2004 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2003/902/ EC [2004] OJ L 99/28 insofar as it concerned Kongra-Gel). ¹⁵⁴ Implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2005/848/EC [2005] OJ L340/64. ¹⁵⁵ Case T-228/02 Organisation des Modjahedines du Peuple d’Iran (OMPI) v Council [2006] ECR II-4665, paras 173–174. In response, the Council decided to provide OMPI with a statement of reasons for keeping it on the EU’s asset freeze list of persons, groups, and entities involved in terrorist acts, and to give OMPI one month to present its views, together with any supporting documentation: Council Press Release 5714/07 of 30 January 2007. See the successor cases Case T-157/07 People’s Mojahedin Organization of Iran v Council [2007] OJ C140/43 and Case T-256/07 People’s Mojahedin Organization of Iran v Council [2007] OJ C211/50, both pending before the Court of First Instance. ¹⁵⁶ Case T-306/01 Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-3533, and the appeal pending before the Court of Justice: Case C-415/05 P Al Barakaat International Foundation v Council and Commission [2006] OJ C48/11. ¹⁵⁷ Case T-315/01 Yassin Abdullah Kadi v Council and Commission [2005] ECR II-3649, and the appeal pending before the Court of Justice: Case C-402/05 P Kadi v Council and Commission [2006] OJ C36/19. ¹⁵⁸ Case T-253/02 Chafiq Ayadi v Council [2006] ECR II-2139, and the appeal pending before the Court of Justice: Case C-403/06 P Ayadi v Council [2006] OJ C294/32.

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and Hassan¹⁵⁹ cases. It is clear that this is very problematic, both for the legal order of the Union and for the international legal order.¹⁶⁰ Eeckhout has suggested another way in which the second pillar can be drawn into the judicial system of the Union.¹⁶¹ He argues plausibly that, should a Member State find itself in a similar situation as Greece in Commission v Greece¹⁶² and should the case come before the Court now, it would have to prove that it has sufficiently attempted to follow the CFSP route. It is not excessive to require a Member State first to exhaust the EU political and diplomatic mechanisms and channels, and the Court could exercise at least a marginal and procedural review of that process. In other words, a failure to use the CFSP route would disqualify a Member State from relying on Article 297 EC. Article 46(d) EU confers on the Court the power to review acts of the EU institutions on their respect of Article 6(2) EU, which contains the obligation for the Union to observe human rights and fundamental freedoms. This jurisdiction is, however, only granted ‘in so far as the Court has jurisdiction under the Treaties establishing the European Communities and under this Treaty’. Due to the total lack of any substantive jurisdiction to review any acts adopted pursuant to Title V of the EU Treaty, this would seem to imply that the Court does not have the power to review CFSP acts on their compliance with Article 6(2) EU.¹⁶³ None ¹⁵⁹ Case T-49/04 Faraj Hassan v Council and Commission [2006] ECR II-52, and the appeal pending before the Court of Justice: Case C-399/06 P Hassan v Council and Commission [2006] OJ C294/30. ¹⁶⁰ See, for example, the solution proposed in the Opinions of Poiares Maduro AG in Case C-402/05 P Kadi v Council and Commission [2006] OJ C36/19, point 54, and Case C-415/05 P Al Barakaat International Foundation v Council an Commission [2006] OJ C48/11, point 54: ‘Had there been a genuine and effective mechanism of judicial control by an independent tribunal at the level of the United Nations, then this might have released the Community from the obligation to provide for judicial control of implementing measures that apply within the Community legal order. However, no such mechanism currently exists. As the Commission and the Council themselves have stressed in their pleadings, the decision whether or not to remove a person from the United Nations sanctions list remains within the full discretion of the Sanctions Committee—a diplomatic organ. In those circumstances, it must be held that the right to judicial review by an independent tribunal has not been secured at the level of the United Nations. As a consequence, the Community institutions cannot dispense with proper judicial review proceedings when implementing the Security Council resolutions in question within the Community legal order.’ ¹⁶¹ P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 453. ¹⁶² Case C-120/94 Commission v Greece, removed from the register [1996] ECR I-1513; see ch 5.4. ¹⁶³ Case T-338/02 Segi, Araitz Zubimendi Izaga, and Aritza Galarraga v Council, Order of 7 June 2004 [2004] ECR II-1647, para 37; Case T-228/02 Organisation des Modjahedines du Peuple d’Iran (OMPI) v Council [2002] OJ C247/20, para 53; cf the Opinion of Mengozzi AG in Case C-354/04 P Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti v Council [2007] ECR I-1579 and Case C-355/04 SEGI, A. Zubimendi Izaga, A. Galarraga v the Council [2007] ECR I-1657, point 64, who none the less notes (point 78) that ‘the Community cannot accept measures which are incompatible with observance of the human rights thus recognised and guaranteed, which therefore constitutes a precondition for the legality of Community acts. Given the wording of Article 6(2) EU and its place among the “Common Provisions” in Title I of the EU Treaty, similar considerations must obviously be made with reference to measures expressing the action of the

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the less, an argument could be made that, as fundamental rights form an integral part of the general principles of Community law whose observance is ensured by the Community Courts,¹⁶⁴ and as the Court has jurisdiction to ensure that nothing in the second and third pillars affects the legal order established by the EC Treaty, as per Article 47 EU, the Court should be able to review second and third pillar instruments on their compliance with fundamental rights.¹⁶⁵ The case for exclusion of the jurisdiction of the Court of Justice over CFSP matters is therefore clearly not persuasive in all its aspects. As argued above, some CFSP legal instruments show certain characteristics of legislative instruments and would benefit from a system of unified interpretation as could be provided by the Court.¹⁶⁶ However, while some form of judicial review of Member State compliance with foreign policy measures in general would be desirable, the case for judicial review is substantially stronger with regard to the increasing volume of measures that can directly affect individuals. No polity can deem itself based on the rule of law if it cannot provide at least some form of judicial review of such measures,¹⁶⁷ as opposed to purely internal review by the executive of its own acts.¹⁶⁸ In both the Yusuf and Kadi cases,¹⁶⁹ the Court of First Instance emphasized that the Community is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid review of the question whether their acts are in conformity with the basic constitutional charter, the Treaty, which established a complete system of legal remedies and procedures designed Union in the fields of the common foreign and security policy (the “second pillar”) and police and judicial cooperation in criminal matters (the “third pillar”)’. ¹⁶⁴ eg Opinion 2/94 Accession by the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECR I-1759, para 33; Case C-299/95 Kremzow [1997] ECR I-2629, para 14; Case C-411/04 P Salzgitter Mannesmann v Commission [2007] ECR I-959, para 41; Case C-341/05, Laval un Partneri [2005] OJ C281/10, para 91; Case C-438/05 The International Transport Workers’ Federation and The Finnish Seamen’s Union [2006] OJ C60/16, para 44. ¹⁶⁵ cf K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 808– 809, 18–021, who wonder whether Arts 47 EU and 220 EC could grant the Court such jurisdiction. They also correctly point out that Art 10 EC, which requires the Member States to abstain from any measure that could jeopardize the attainment of the objectives of the EC Treaty, equally applies to any measures taken by the Member States pursuant to their obligations under Title V of the EU Treaty. The authors wonder whether Art 10 EC might not prohibit the Member States from infringing fundamental rights when implementing CFSP obligations; W van Gerven, The European Union: A Polity of States and Peoples (2005) 120. ¹⁶⁶ P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 418; see also P Eeckhout, Does Europe’s Constitution Stop at the Water’s Edge? Law and Policy in the EU’s External Relations (2005) 18: ‘The reasons and justifications for the exclusion of the Court of Justice’s jurisdiction are defective, essentially because there is a lot more going on in the CFSP than the mere adoption of foreign-policy positions and the making of diplomatic démarches.’ ¹⁶⁷ See also HL Select Committee on the European Union 6th Report: The Future Role of the European Court of Justice (HL Paper (2003–2004) no 47) 33, para 103. ¹⁶⁸ Similarly: P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 464. ¹⁶⁹ ch 8.3.1.

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to enable the Court to review the legality of acts of the institutions.¹⁷⁰ The Court of First Instance also reaffirmed that ‘judicial control . . . reflects a general principle of law which underlies the constitutional traditions common to the Member States . . . and which is also laid down in Articles 6 and 13 of the [European Convention on Human Rights]’.¹⁷¹ The Court of Justice similarly confirmed the importance of the rule of law in the Gestoras¹⁷² and Segi¹⁷³ cases. There, two Basque organizations had been placed on a list of terrorist organizations, annexed to Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism.¹⁷⁴ Before the Court of First Instance,¹⁷⁵ they had invoked the observance of fundamental rights, in particular the right to effective judicial protection under Article 6(2) EU. On appeal before the Court of Justice,¹⁷⁶ they complained of having no means of challenging their inclusion in the list annexed to Common Position 2001/931 and that the judgment of the Court of First Instance had prejudiced their right to effective ¹⁷⁰ Case T-306/01 Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-3533, para 260; Case T-315/01 Yassin Abdullah Kadi v Council and Commission [2005] ECR II-3649, para 209; see also Case 294/83 Parti écologiste “Les Verts” v European Parliament [1986] ECR 1339, para 23; Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECR 4199, para 16; Case C-314/91 Beate Weber v European Parliament [1993] ECR I-1093, para 8; Joined Cases T-222/99, T-327/99, and T-329/99 Jean-Claude Martinez, Charles de Gaulle, Front national, Emma Bonino, Marco Pannella, Marco Cappato, Gianfranco Dell’Alba, Benedetto Della Vedova, Olivier Dupuis, Maurizio Turco, Lista Emma Bonino v European Parliament [2001] ECR II-2823, para 48; Case C-50/00 P, Unión de Pequeños Agricultores v Council [2002] ECR I-6677, para 40; see also Opinion 1/91 Draft agreement between the Community, on the one hand, and the countries of the European Free Trade Association, on the other, relating to the creation of the European Economic Area [1991] ECR I-6079, para 21. ¹⁷¹ Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, 213 U.N.T.S. 221; Case T-306/01 Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-3533, para 261; Case T-315/01 Yassin Abdullah Kadi v Council and Commission [2005] ECR II-3649, para 210. See also Case 222/84 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, para 18; Case C-97/91 Oleificio Borelli SpA v Commission [1992] ECR I-6313, para 14; Case C-1/99 Kofisa Italia Srl v Ministero delle Finanze, Servizio della Riscossione dei Tributi—Concessione Provincia di Genova— San Paolo Riscossioni Genova SpA [2001] ECR I-207, para 46; Case C-424/99 Commission v Austria [2001] ECR I-9285, para 45, and Case C-50/00 P, Unión de Pequeños Agricultores v Council [2002] ECR I-6677, para 39. It seems questionable whether the CFI has lived up to its own standards in these cases: see also MG Garbagnati Ketvel, ‘The Jurisdiction of the European Court of Justice in Respect of the Common Foreign and Security Policy’ (2006) 55 ICLQ 112. ¹⁷² Case C-354/04 P Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti v Council [2007] ECR I-1579. ¹⁷³ Case C-355/04 P SEGI, A. Zubimendi Izaga, A. Galarraga v Council [2007] ECR I-1657. ¹⁷⁴ [2001] OJ L344/93. ¹⁷⁵ Case T-333/02 Gestoras Pro-Amnistía and Others v Council, Order of 7 June 2004 [2004] OJ C228/40 and Case T-338/02 Segi, Araitz Zubimendi Izaga, and Aritza Galarraga v Council, Order of 7 June 2004 [2004] ECR II-1647. ¹⁷⁶ For a commentary on these judgments, see eg F Donnat, ‘Régime des actes des titres V et VI du traité sur l’Union et lutte contre le terrorisme’ [2007] Revue française de droit administratif 1100–1104; MG Garbagnati Ketvel, ‘Almost, but not quite: The Court of Justice and Judicial Protection of Individuals in the Third Pillar’ [2007] Eur L Reporter 223–238; A Johnston, ‘The European Union, the ongoing search for terrorists’ assets and a satisfactory legal framework: getting warmer or colder?’ (2007) 66 CLJ 523–525.

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judicial protection. The Court of Justice, however, held that the applicants could not validly argue that they were deprived of all judicial protection: ‘As is clear from Article 6 EU, the Union is founded on the principle of the rule of law and it respects fundamental rights as general principles of Community law. It follows that the institutions are subject to review of the conformity of their acts with the treaties and the general principles of law, just like the Member States when they implement the law of the Union.’¹⁷⁷ Is this actually the case with regard to restrictive measures against persons or groups adopted under the current constitutional framework? In the Gestoras and Segi cases, the Court explained that, within the context of the third pillar, Article 35(1) EU treats as acts capable of being the subject of a reference for a preliminary ruling all measures adopted by the Council and intended to produce legal effects in relation to third parties, which normally excludes common positions. However, given that the preliminary rulings procedure is designed to guarantee observance of the law in the interpretation and application of the Treaty, it would run counter to that objective to interpret Article 35(1) EU narrowly: ‘The right to make a reference to the Court of Justice for a preliminary ruling must therefore exist in respect of all measures adopted by the Council, whatever their nature or form, which are intended to have legal effects in relation to third parties.’¹⁷⁸ The Court concluded that this meant that it could review a common position which, because of its content, has a scope going beyond that assigned by the EU Treaty to that kind of act. Practically, a national court hearing a dispute which indirectly raises the issue of the validity or interpretation of a common position adopted on the basis of Article 34 EU and which has serious doubts whether that common position is really intended to produce legal effects in relation to third parties, would be able, subject to the conditions fi xed by Article 35 EU, to ask the Court to give a preliminary ruling. The Court would then have to find, where appropriate, that the common position is intended to produce legal effects in relation to third parties, to accord it its true classification and to give a preliminary ruling.¹⁷⁹ The Court would also have jurisdiction to review the lawfulness of such common positions when an action has been brought by a Member State or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating ¹⁷⁷ Case C-354/04 P Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti v Council [2007] ECR I-1579, para 51 and Case C-355/04 P SEGI, A. Zubimendi Izaga, A. Galarraga v Council [2007] ECR I-1657, para 51. See also Case C-303/05 Advocaten voor de Wereld [2007] ECR I-3633, para 45. ¹⁷⁸ Para 53 of both judgments. The Court referred, by analogy, to Case 22/70 Commission v Council (ERTA) [1971] ECR 263, paras 38–42, and Case C-57/95 France v Commission [1997] ECR I-1627, paras 7 et seq. ¹⁷⁹ Para 54 of both judgments. In so doing, the Court does not explicitly extend the Foto-Frost case-law to legal instruments based on the EU Treaty, but does not rule out such an extension either: see MG Garbagnati Ketvel, ‘Almost, but not quite: The Court of Justice and Judicial Protection of Individuals in the Third Pillar’ (2007) Eur L Reporter 232.

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to its application, or misuse of powers.¹⁸⁰ The Court concluded by reminding the Member States courts and tribunals of their duty to ‘interpret and apply national procedural rules governing the exercise of rights of action in a way that enables natural and legal persons to challenge before the courts the lawfulness of any decision or other national measure relating to the drawing up of an act of the European Union or to its application to them and to seek compensation for any loss suffered’.¹⁸¹ It is important to note that the common position at issue in fact found its legal basis not only under the third pillar in Article 34 EU, but equally under the second pillar in Article 15 EU. Could it be argued that the Court’s fairly sweeping affirmation of the existence of the right to make a reference with respect to ‘all measures adopted by the Council, whatever their nature or form, which are intended to have legal effects in relation to third parties’ also extends to the second pillar? While the rule of law, to which the Court referred in paragraph 51 of both judgments, would seem to make a transposition of that finding to the second pillar highly desirable, there are rather clear indications that such an implication was probably not intended by the Court.¹⁸² In fact, the sweeping affirmation comes immediately after the Court’s explanation of the system of preliminary rulings under the third pillar, and seems to follow directly (‘The right to make a reference must therefore exist’)¹⁸³ from the Court’s unwillingness to interpret Article 35(1) EU narrowly. While under the third pillar, the Court had to find a way of interpreting its preliminary ruling jurisdiction broadly, it would have to create such a jurisdiction ex nihilo for the second pillar. Both the rule of law and, as will be argued below, the unity of interpretation of EU law, therefore militate in favour of extending the preliminary ruling jurisdiction of the Court to the second pillar. However, even the extension of the preliminary ruling procedure would not be a panacea because, as argued by Advocate General Jacobs in his celebrated Opinion in the UPA case, dependent as it is on proceedings before

¹⁸⁰ Para 55 of both judgments. See Art 35(6) EU. ¹⁸¹ Para 56 of both judgments. The Opinion of Mengozzi AG in both cases had equally emphasized the role of national courts in providing adequate judicial protection, but had done so to a greater extent than the Court. Compare Case C-50/00 P, Unión de Pequeños Agricultores v Council [2002] ECR I-6677, para 42: ‘In that context, in accordance with the principle of sincere cooperation laid down in Article 5 of the Treaty, national courts are required, so far as possible, to interpret and apply national procedural rules governing the exercise of rights of action in a way that enables natural and legal persons to challenge before the courts the legality of any decision or other national measure relative to the application to them of a Community act of general application, by pleading the invalidity of such an act.’ ¹⁸² cf C Hillion and RA Wessel, ‘Restraining External Competences of EU Member States under CFSP’ in M. Cremona and B. De Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (forthcoming (2008)), who also point out that the Court would none the less similarly have jurisdiction to give a preliminary ruling regarding the third pillar aspects (and hence the distinction between second and third pillar aspects) of a second-third pillar cross-pillar agreement. ¹⁸³ Emphasis added.

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national courts, the preliminary ruling procedure cannot always provide full and effective judicial protection for individual applicants.¹⁸⁴ While the general framework for second pillar restrictive measures is usually laid down in a CFSP legal instrument, the actual obligations on individuals are often included in Community legal instruments adopted in implementation of those CFSP measures. Whenever implementation of measures taken at Community/ Union level is required at the Member State level, citizens of the Member States can take their case to the national courts, although the possibility for doing so will depend on national constitutional provisions. If the nationally implemented measure was a Community legal instrument, Member State courts can ask the Court of Justice for guidance through the preliminary ruling procedure. Not so, however, when the implemented measure is a CFSP legal instrument. If the measure affecting individuals is an EC regulation, a distinction must be made between (provisions of) regulations that require some implementing action on the Member State level and those that do not. In the former case, affected individuals can turn to their national courts, which could (or would be under an obligation to) make a reference for a preliminary ruling on the interpretation or validity of the regulation. If there is, however, no Member State action that can be challenged, individuals can only turn to the Court of First Instance on the basis of Article 230 EC to challenge the original regulation, as with regard to the anti-terrorist measures at issue, for example, in Yusuf,¹⁸⁵ Kadi,¹⁸⁶ Ayadi,¹⁸⁷ and Hassan.¹⁸⁸ They then have to establish locus standi by showing that they are directly and individually concerned,¹⁸⁹

¹⁸⁴ Opinion of Jacobs AG in Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, points 36–49. See, however, new Art 19(1), subpara 2 EU, which would provide for the Member States to provide ‘remedies sufficient to ensure effective legal protection in the fields covered by Union law’. ¹⁸⁵ Case T-306/01 Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-3533. ¹⁸⁶ Case T-315/01 Yassin Abdullah Kadi v Council and Commission [2005] ECR II-3649. ¹⁸⁷ Case T-253/02 Chafiq Ayadi v Council [2002] OJ C289/25. ¹⁸⁸ Case T-49/04 Faraj Hassan v Council and Commission [2006] ECR II-52. ¹⁸⁹ Art 230(4) EC. The condition that the decision must be of direct concern to a natural or legal person requires the contested Community measure to affect directly the legal situation of the individual and leave no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules: see eg Case C-386/96 P Dreyfus v Commission [1998] ECR I-2309, para 43; Case C-486/01 P Front national v Parliament [2004] ECR I-6289, para 34; Case C-417/04 P Regione Siciliana v Commission [2006] ECR I-3881, para 28; Case C-125/06 P Commission v Infront WM [2006] OJ C108/7, para 47. Persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and, by virtue of those factors, distinguishes them individually just as in the case of the person addressed: see eg Case 25/62 Plaumann v Commission [1963] ECR 95, 107; Case C-260/05 P Sniace v Commission [2005] OJ C193/22, para 53; Joined Cases C-373/06 P, C-379/06 P, and C-382/06P Flaherty and Others v Commission [2006] OJ C281/25, para 36.

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which should normally be no problem in case of a nominatim mention in the legal instrument concerned.¹⁹⁰ However, it must be emphasized that a veritable lacuna exists under the present constitutional arrangements if a CFSP measure has an impact on individuals without having to be implemented either by a Community or a Member State act that would be challengeable,¹⁹¹ such as where an individual is listed as a terrorist without another specific measure. As the European Court of Human Rights has consistently held:¹⁹² even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information. The individual must be able to challenge the executive’s assertion that national security is at stake. While the executive’s assessment of what poses a threat to national security will naturally be of significant weight, the independent authority must be able to react in cases where invoking that concept has no reasonable basis in the facts or reveals an interpretation of ‘national security’ that is unlawful or contrary to common sense and arbitrary. Failing such safeguards, the police or other State authorities would be able to encroach arbitrarily on rights protected by the Convention.

Another significant gap under the current constitutional arrangements is that it is impossible to ask the Court for a preliminary opinion on the compatibility of any agreement falling within the CFSP sphere with the EC Treaty or EU Treaty. This lack of a procedure equivalent to Article 300(6) EC with regard to international agreements falling within the CFSP sphere is difficult to justify. ¹⁹⁰ See Case T-253/04 Kongra-Gel and Others v Council [2004] OJ C262/28, paras 77–78; cf C Tomuschat, ‘Case T-306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council and Commission, judgment of the Court of First Instance of 21 September 2005; Case T-315/01, Yassin Abdullah Kadi v. Council and Commission, judgment of the Court of First Instance of 21 September 2005, nyr’ (2006) 43 CML Rev 539. ¹⁹¹ cf M Cremona, ‘Community Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 360; MG Garbagnati Ketvel, ‘The Jurisdiction of the European Court of Justice in Respect of the Common Foreign and Security Policy’ (2006) 55 ICLQ 112–113. ¹⁹² Liu v Russia, no 42086/05, para 59. On the dangers of the ‘us v. them’ division, also for the internal constitutional structure: O Gross and F Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (2006) 220–227, who argue that ‘the greater the threat “they” pose to “us”, the greater in scope the powers assumed by government and tolerated by the public become’: ibid, 220–221; for illustrations see the Opinions of Poiares Maduro AG in Case C-402/05 P Kadi v Council and Commission [2006] OJ C36/19, especially points 34–35, and Case C-415/05 P Al Barakaat International Foundation v Council and Commission [2006] OJ C48/11, points 34–35 and the Opinion of Sharpston AG in Case C-345/06 Heinrich [2006] OJ C281/19, especially at point 100. Compare, notoriously, C Schmitt, The Concept of the Political (2007) 26: ‘The specific political distinction to which political actions and motives can be reduced is that between friend and enemy’.

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5.3.2.2 The Treaty of Lisbon The Court’s role in the CFSP would not fundamentally change under the Treaty of Lisbon, which would exclude the Court’s jurisdiction in the CFSP,¹⁹³ except for ‘reviewing the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union’,¹⁹⁴ and policing the borderline between CFSP and other Union policies.¹⁹⁵ The latter jurisdiction is based on New Article 40 EU,¹⁹⁶ the successor to the current Article 47 EU. It is to be welcomed that the Treaty of Lisbon would give the Court jurisdiction to review ‘the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union’.¹⁹⁷ Such an extension of jurisdiction has become necessary from the point of view of human rights and the rule of law. Given that there is no explicit restriction of the jurisdiction to restrictive measures of an economic nature, the Court could review the legality of every restrictive measure, regardless of its nature or purpose.¹⁹⁸ It should none the less be kept in mind that any direct action brought by an individual will be subject to the locus standi requirements of Article 263(4) TFEU:¹⁹⁹ a challenge is only possible to an act addressed to that person or that is of direct and individual concern to him or her, and against a regulatory act that is of direct concern to him or her ¹⁹³ New Arts 24(1) EU and 275 TFEU (cf Art III-376 TC). The Treaty of Lisbon operates from a different perspective from that of the EU Treaty. While Art 46 EU excludes the Court’s jurisdiction over the EU Treaty except with regard to those matters exhaustively listed in the Article itself, the Treaty of Lisbon confers general jurisdiction to the Court over both Treaties except for those matters explicitly excluded. Cf similarly regarding the Constitution: T Tridimas, ‘The European Court of Justice and the Draft Constitution: A Supreme Court for the Union?’ in T Tridimas and P Nebbia (eds), European Union Law for the Twenty-First Century: Rethinking the New Legal Order. Vol. 1: Constitutional and Public Law. External Relations (2004) 121, and agreeing with Tridimas: MG Garbagnati Ketvel, ‘The Jurisdiction of the European Court of Justice in Respect of the Common Foreign and Security Policy’ (2006) 55 ICLQ 100. ¹⁹⁴ New Arts 24(1) EU and 275 TFEU (cf Art III-376 TC). The Court will remain competent to review the legality of measures imposing economic and financial sanctions on third countries, adopted pursuant to Art 215(1) TFEU (cf Art III-322(1) TC). The Union would under the Treaty of Lisbon also be competent to take restrictive measures against natural and legal persons and groups and non-State entities pursuant to Art 215(2) TFEU (cf Art III-322(2) TC), which would equally fall within the Court’s jurisdiction. See further B De Witte, ‘The Constitutional Law of External Relations’ in I Pernice and M Poiares Madouro (eds), A Constitution for the European Union: First Comments on the 2003-Draft of the European Convention (2003) 105, who lists a number of other possibilities for interpretation by the Court of CFSP related Articles under the Constitution. ¹⁹⁵ New Arts 24(1) EU and 275 TFEU (cf Art III-376 TC); M Cremona, ‘The Draft Constitutional Treaty: External Relations and External Action’ (2003) 40 CML Rev 1355. ¹⁹⁶ cf Art III-308 TC. ¹⁹⁷ Art 275 TFEU (cf Art III-376 TC). ¹⁹⁸ Similarly: MG Garbagnati Ketvel, ‘The Jurisdiction of the European Court of Justice in Respect of the Common Foreign and Security Policy’ (2006) 55 ICLQ 116. ¹⁹⁹ cf Art III-365(4) TC.

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and does not entail implementing measures. Tridimas, however, rightly points out that once it is accepted that the Court has jurisdiction to review restrictive measures against natural or legal persons by way of a direct action, there is no reason a priori to exclude the possibility of a preliminary reference jurisdiction pursuant to Article III-369 TC (Article 267 TFEU after the entry into force of the Treaty of Lisbon).²⁰⁰ Should the Treaty of Lisbon never enter into force, Article 275, second subparagraph TFEU²⁰¹ would be a prime candidate for inclusion in a smaller scale amendment of the Treaties. Writing about the Draft Treaty establishing a Constitution for Europe (DTC), Tridimas argued that the reference in Article III-204 DTC²⁰² to ‘the procedure described in Article III-227 [DTC]’ should be read as extending the Court’s jurisdiction to deliver opinions on the basis of present Article 300(6) EC²⁰³ to agreements falling within the CFSP sphere.²⁰⁴ The 2004 IGC decided to drop any procedural reference in Article III-325(11) TC and this has remained the case under Article 218(11) TFEU. Given that the Articles on the CFSP themselves provide for no derogation from the Article 218 TFEU procedure for concluding international agreements, and that Article 218(11) TFEU on the possibility of an opinion itself provides no derogation for the CFSP (while Article 218 TFEU does provide derogations for the CFSP in other matters²⁰⁵), the Court probably would have jurisdiction to give opinions on international agreements falling within the CFSP. That is, of course, only if either a Member State, the European Parliament, the Council or the Commission wishes to ask its opinion. Moreover, Article 275 TFEU does not exclude Article 218 TFEU itself from the Court’s jurisdiction. This implies that the Court should be able to review compliance with the new unified treaty-making procedure provided for in Article 218 TFEU, regardless of whether the agreement concerned would cover ‘first pillar’ external relations, or matters belonging to the CFSP.²⁰⁶ Because the unified treaty-making procedure would leave in place some procedural differences between provisions of the agreement pertaining to these two aspects of foreign policy, the Court’s jurisdiction ²⁰⁰ T Tridimas, ‘The European Court of Justice and the Draft Constitution: A Supreme Court for the Union?’ in T Tridimas and P Nebbia (eds), European Union Law for the Twenty-First Century: Rethinking the New Legal Order. Vol. 1: Constitutional and Public Law. External Relations (2004) 128. ²⁰¹ cf Art III-376, para 2 TC. ²⁰² ‘The Union may conclude agreements with one or more States or international organisations pursuant to this Chapter, in accordance with the procedure described in Article III-227’. ²⁰³ Equivalent to Art 218(11) TFEU (cf Arts III-227(12) DTC and III-325(11) TC). ²⁰⁴ T Tridimas, ‘The European Court of Justice and the Draft Constitution: A Supreme Court for the Union?’ in T Tridimas and P Nebbia (eds), European Union Law for the Twenty-First Century: Rethinking the New Legal Order. Vol. 1: Constitutional and Public Law. External Relations (2004) 129; cf P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 419. ²⁰⁵ See Art 218(3), (6), and (8) TFEU. ²⁰⁶ Similarly, regarding the TC: P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 419; MG Garbagnati Ketvel, ‘The Jurisdiction of the European Court of Justice in Respect of the Common Foreign and Security Policy’ (2006) 55 ICLQ 105.

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would include ‘policing the borders’ between the two. This would seem to include the possibility for the Court to review ex post the compliance with these procedural differences corresponding to the horizontal division of competences.²⁰⁷ One can think of an annulment procedure brought against the legal instrument concluding an agreement alleging a violation of New Article 40 EU, which would fall under the Court’s jurisdiction pursuant to Article 275 TFEU. However, it remains a fact that the Court’s ability to render opinions or judgments pursuant to the opportunities arguably created by the Treaty of Lisbon does not seem to chime with the Court’s lack of jurisdiction to interpret CFSP provisions as per Article 275 TFEU.

5.4 Conclusions Parliamentary control at least over all the EU’s international agreements, including those within the CFSP sphere, would not equate to an ‘inefficient’ foreign policy. As mentioned above, the European Parliament has in the past often reacted more quickly and in a more concrete manner to developments in international politics than either the Council or the Commission. Moreover, the limited role of the European Parliament in treaty-making at the EU level seems an anomaly in a legal order where parliamentary approval of an international agreement is required in the constitutional laws of the majority of its Member States.²⁰⁸ Eeckhout criticizes the general lack of parliamentary involvement in the Union’s foreign policy as being ‘unacceptable in a polity governed by the rule of law’.²⁰⁹ There is clearly room for more parliamentary involvement in the Union’s foreign policy. ‘If democracy and popular sovereignty are to be the hallmarks of modern statehood, is it acceptable for foreign and defence policies to be delegated almost wholly to a small elite, on the grounds that dealings with other states require secrecy, continuity, experience and personal contacts?’²¹⁰ While Hill’s question concerned the foreign policy of states, it is as valid for that of the Union. However, at the present stage in the Union’s development, legitimacy of EU foreign policy actions cannot solely come from more involvement of the European Parliament. This should be complemented by more possibilities for Member State ²⁰⁷ cf in that sense on the Constitution: MG Garbagnati Ketvel, ‘The Jurisdiction of the European Court of Justice in Respect of the Common Foreign and Security Policy’ (2006) 55 ICLQ 105–106. ²⁰⁸ cf B De Witte, ‘The Constitutional Law of External Relations’ in I Pernice and M Poiares Madouro (eds), A Constitution for the European Union: First Comments on the 2003-Draft of the European Convention (2003) 104; further on foreign policy and constitutionalism: M Krajewski, ‘Foreign Policy and the European Constitution’ (2003) 22 YEL 435–462. ²⁰⁹ P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 420. ²¹⁰ C Hill, The Changing Politics of Foreign Policy (2003) 42.

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parliaments to scrutinize the actions of their respective ministers in the Council, within the limits set by national constitutional arrangements. The competences of the European Parliament in CFSP matters would remain largely the same under the Treaty of Lisbon. The High Representative of the Union for Foreign Affairs and Security Policy (HRUFASP) is to consult regularly 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.²¹¹ He/she also would have to ensure that the views of the European Parliament are ‘duly taken into consideration’.²¹² Parliament would have the right to address questions about foreign policy to the Council or the HRUFASP and it would be expected to hold a twice-yearly debate on the progress in implementing the CFSP, including the CSDP.²¹³ Even the right to be consulted would have its limits: the European Parliament would not have to be consulted when the conclusion of an international agreement that falls exclusively within the CFSP is considered.²¹⁴ A new possibility for parliamentary involvement has, however, been introduced with regard to the adoption by the Council of ‘a decision establishing the specific procedures for guaranteeing rapid access to appropriations in the Union budget for urgent financing of initiatives’ in the CFSP framework. The Council can only adopt such decisions after consulting the European Parliament.²¹⁵ However, the ordinary legislative procedure does not apply to the CFSP or CSDP, following the non-availability of legislative acts in those areas.²¹⁶ It should be noted that with regard to the CCP, the Treaty of Lisbon provides that the European Parliament and the Council, acting by means of regulations, are to adopt the measures defining the framework for implementing the CCP.²¹⁷ Given that these are adopted through the ‘ordinary legislative procedure’,²¹⁸ the European Parliament will be involved on equal footing with the Council in their adoption. The Treaty of Lisbon would therefore only marginally increase parliamentary involvement over EU foreign policy, and to a greater extent in Community external relations than in the CFSP. ²¹¹ New Art 36, para 1 EU (cf Art I-40(8) TC). ²¹² New Art 36, para 1 EU (cf Art III-304(1) TC). Special representatives may also be involved in briefing the European Parliament: ibid. ²¹³ New Art 36, para 2 EU (cf Art III-304(2) TC). ²¹⁴ Art 218(6) TFEU (cf Art III-325(6) TC). Th is is, none the less, the only field of activity where Parliament even lacks the right to be consulted. Cf on the Constitution: M Cremona, ‘The Draft Constitutional Treaty: External Relations and External Action’ (2003) 40 CML Rev 1354; MG Garbagnati Ketvel, ‘The Jurisdiction of the European Court of Justice in Respect of the Common Foreign and Security Policy’ (2006) 55 ICLQ 105, noting that it remains unclear whether the European Parliament would have to be consulted with regard to ‘Community’/CFSP ‘cross-pillar’ mixed agreements. ²¹⁵ New Art 41(3) EU (cf Art III-313(3) TC). ²¹⁶ New Arts 24(1) and 31(1) EU (cf Art I-40(6) TC). ²¹⁷ Art 207(2) TFEU (cf Art III-315(2) TC). ²¹⁸ Art 294 TFEU (cf Art III-396 TC).

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The Court of Justice’s task is comprehensively to review acts of the other Union institutions.²¹⁹ This sets the EU apart from many other international organizations, in which only the acting institution has to conduct such a review.²²⁰ Denza has argued that next to direct effect, ‘the compulsory jurisdiction of the ECJ was the second great leap forward by the Community legal order beyond the classical system of international law’.²²¹ While the international legal order has seen a great resurgence in the acceptance of judicial supervision over particular treaties or legal disputes, the Union took a step backwards by excluding the jurisdiction of the Court entirely from the second pillar.²²² The argument for limiting the role of the judiciary in foreign policy is largely the same as for limiting the role of parliament: the need to be able to react quickly and efficiently to international developments.²²³ This does, however, not prevent the courts in many of the world’s democratic systems from playing a role in external relations, even though the extent of this role differs between constitutional systems. For example, the United States Supreme Court and the German Bundesverfasssungsgericht refuse to abdicate automatically their role as constitutional arbiters as soon as any question of foreign policy arises, albeit that their approach is rather different. Franck has shown that the German courts often reach the same result in cases involving foreign policy as their US counterparts, but in a more direct manner. While US courts tend to deny the justiciability of matters pertaining to foreign policy on the basis of the political questions doctrine,²²⁴ the German courts have rejected the political questions doctrine and tend to accept jurisdiction but then conduct a very careful review on the merits, giving substantial leeway to the executive.²²⁵ UK courts equally do not accept the political questions doctrine as a concept with all its consequences (except maybe in Buttes Gas and Oil Co v Hammer),²²⁶ but none the less also display significant deference to the executive in foreign policy matters.²²⁷ This deference is, however, not limitless, as Lord Philips MR remarked in R (Abbasi) v Secretary of State for Foreign and Commonwealth Aff airs: ‘The Secretary of State must be free to give ²¹⁹ cf A Von Bogdandy and J Bast, ‘The European Union’s Vertical Order of Competences: The Current Law and Proposals for its Reform’ (2002) 39 CML Rev 256. ²²⁰ HG Schermers and NM Blokker, International Institutional Law: Unity Within Diversity (2003), para 708. ²²¹ E Denza, The Intergovernmental Pillars of the European Union (2002) 15. ²²² Ibid, 29. ²²³ For a rebuttal of many of the ‘prudential’ arguments (‘courts are ill-equipped to deal with foreign policy’) against a role for the judiciary in foreign policy: TM Franck, Political Questions/ Judicial Answers. Does the Rule of Law Apply to Foreign Aff airs? (1992) 45–60. ²²⁴ Invoked by the US Supreme Court for the first time in Luther v Borden 48 US 1 (1849) 46–47. ²²⁵ TM Franck, Political Questions/Judicial Answers. Does the Rule of Law Apply to Foreign Aff airs? (1992); specifically on Germany: ibid, 107–125, noting for example that for the German courts, the issue is not ‘whether but how judges should decide’. Further on the role of US courts in foreign policy: L Henkin, Foreign Aff airs and the US Constitution (1996) 131–148. ²²⁶ [1982] AC 888; cf L Collins, ‘Foreign Relations and the Judiciary’ (2002) 51 ICLQ 499. ²²⁷ In general: L Collins, ‘Foreign Relations and the Judiciary’ (2002) 51 ICLQ 485–510.

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full weight to foreign policy considerations, which are not justiciable. However, that does not mean the whole process is immune from judicial scrutiny.’²²⁸ What role could the courts play in foreign policy matters? Constitutional systems that do allow the judiciary to get involved often limit its functions to arbitrating competence quarrels between different levels of government, and scrutinizing international agreements on their compliance with the constitution.²²⁹ Advocate General Jacobs analysed the possibility of judicial review in matters of foreign policy throughout his entire Opinion in Commission v Greece²³⁰ but particularly developed it in response to Greece’s claims with regard to war, or serious international tension constituting a threat of war. While confi rming that the Court indeed had jurisdiction over Article 297 EC,²³¹ the Advocate General emphasized that the room for judicial scrutiny with regard to the existence of war or related concepts is extremely limited,²³² and started his analysis with approvingly quoting Lord Wilberforce in the Buttes case: ‘[T]here are . . . no judicial or manageable standards by which to judge these issues, or to adopt another phrase . . . the court would be in judicial no-man’s land’.²³³ Note that Lord Wilberforce in the Buttes case relied on the judgment of the US Fifth Circuit Court of Appeals in Occidental of Umm al Qaywayn, Inc. v A Certain Cargo of Petroleum,²³⁴ which was squarely based on the political questions doctrine.²³⁵ Advocate General Jacobs then referred to case-law of the German courts (not specifically identified), which was said to show substantial deference to the executive in matters of foreign policy for lack of judicial standards, and to the ²²⁸ Lord Philips MR in R (Abbasi) v Secretary of State for Foreign and Commonwealth Aff airs [2002] EWCA Civ. 1598, para 99. ²²⁹ See S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 50–51. ²³⁰ Case C-120/94 Commission v Greece, removed from the register [1996] ECR I-1513. ²³¹ In general on Art 297 EC: M Trybus, European Union Law and Defence Integration (2005) 167–195. ²³² See, however, Case IT-94–1-AR72 Prosecutor v Dusco Tadic a/k/a ‘Dule’, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 105 ILR 453, para 70, in which the Appeals Chamber of the ICTY provided a definition of what amounted to an armed conflict. See further International Law Commission, First report on the effects of armed conflicts on treaties by Mr. Ian Brownlie, Special Rapporteur, Fifty-seventh session, Geneva, 2 May–3 June and 4 July– 5August 2005, UN Doc. A/CN.4/552, Draft article 2 (containing a definition of armed conflict); Y Dinstein, War, Aggression and Self-Defence (2005) 3–59. For an excellent analysis of the only rarely examined concept of a ‘threat of force’ under international law, considered by some as a guarantee against and by others as a recipe for war, see N Stürchler, The Threat of Force in International Law (Cambridge: Cambridge University Press, 2007). ²³³ Buttes Gas and Oil Co v Hammer [1982] AC 888, 938, cited in the Opinion of Jacobs AG in Case C-120/94 Commission v Greece, removed from the register [1996] ECR I-1513, point 50. ²³⁴ 577 F.2d 1196 (5th Cir. 1978), cert. denied sub nom. Occidental of Umm Qaywayn, Inc. v Cities Serv. Oil Co, 442 U.S. (1979). ²³⁵ cf L Collins, ‘Foreign Relations and the Judiciary’ (2002) 51 ICLQ 507, who suggests that all that the Buttes judgment decided is that where a case in a national court raises the issue of the territory of a foreign state, and the Foreign and Commonwealth Office refuses to certify what boundaries it recognizes, then the issue is not justiciable.

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work of Thomas Franck on the political questions doctrine in the constitutional law of the USA with regard to foreign affairs.²³⁶ When trying to define the role of the Court in the instant case, the Advocate General emphasized that it was not for the Court to decide on the substance of the dispute between Greece and the Former Yugoslav Republic of Macedonia. Rather, the Court had to decide whether, taking into account all the relevant circumstances, including the geopolitical and historical context, Greece could have had a valid reason, from its own subjective point of view, to fear that the conflict with the Former Yugoslav Republic of Macedonia could degenerate into a fullblown war. This subjective point of view was taken to be all-important. Indeed, the Opinion points out, it is precisely the difference in subjective perceptions of certain circumstances that is decisive in the origin of armed conflicts. If such circumstances were exclusively interpreted from the vantage point of what objective external observers would consider a reasonable attitude, the Advocate General remarked, wars would perhaps never occur.²³⁷ While this might be so, it is not the best argument to exclude judicial review. Moreover, why did the Advocate General apply a stricter review as to the existence or otherwise of ‘serious internal disturbances affecting the maintenance of law and order’? Surely the Advocate General’s argument with regard to the subjective standpoint counts as much for internal disturbance as for international tension.²³⁸ The Commission had argued that the embargo established by Greece would increase rather than decrease the tension, and would thus have detrimental consequences for the internal and external security of Greece. Advocate General Jacobs remarked that such a line of argument was based on a political appreciation of an eminently political subject. It was, according to the Advocate General, simply not possible to apply any legal standards to determine what the wisest course of action for Greece under the circumstances would be.²³⁹ The Advocate General here rightly identified a clear example of a situation on which courts are not properly equipped to pass judgment. Indeed, it is probably fair to say that no institution is completely equipped to judge what the repercussions of such actions as taken by Greece would be on the international scene. Has Advocate General Jacobs hereby attempted to introduce a ‘political question doctrine’ into the EU legal order?²⁴⁰ Perhaps so, but only a political question ²³⁶ Opinion in Case C-120/94 Commission v Greece, removed from the register [1996] ECR I-1513, point 51, fn 21. ²³⁷ Ibid, point 58. ²³⁸ Similarly: DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 236. ²³⁹ Opinion in Case C-120/94 Commission v Greece, removed from the register [1996] ECR I-1513, points 59 and 65. ²⁴⁰ Further on political questions in EU law eg the Opinions of Poiares Maduro AG in Case C-402/05 P Kadi v Council and Commission [2006] OJ C36/19, points 33–36 and 43–45 and Case C-415/05 P Al Barakaat International Foundation v Council an Commission [2006] OJ C48/11, points 33–36 and 43–45; cf K Lenaerts, Le juge et la constitution aux États-unis d’Amérique et dans l’ordre juridique européen (Brussels: Bruylant, 1988) 440–458.

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doctrine ‘lite’. Indeed, while the Advocate General emphasized over and over again that there are no legal standards to review the substance of Greece’s action to avoid the threat of war, he seemed equally adamant that such legal standards did exist with regard to the possibility of internal disturbances and accordingly brushed aside Greece’s claims.²⁴¹ Eeckhout points out that the same should be true for independent measures that a Member State may be called upon to take in order to carry out obligations it has accepted for the purpose of maintaining peace and international security.²⁴² Legal analysis is clearly required in determining Member States’ obligations under international law, and there would seem to be no reason why a court could not exercise judicial review in these circumstances, even if it would only be a marginal review.²⁴³ In a report by the European Union Committee of the UK’s House of Lords, Denza ascribes the exclusion of the Court of Justice’s jurisdiction in CFSP matters to three factors:²⁴⁴ (1) the a-legal character of European Political Cooperation (the CFSP’s predecessor) decisions until the entry into force of the Treaty of Maastricht; (2) the fact that most CFSP instruments are ‘sensitive and essentially short-term in character’ and that they are merely intended to put in legal terms the EU’s collective response to a particular international situation; and (3) Member States’ fear that when leaving the CFSP in the Court’s hands, it would run wild and demolish the differences between the CFSP and the traditional Community by integrating the former in the latter.²⁴⁵ Notwithstanding this, Denza took the opinion that it is time to reconsider this exclusion, among other reasons because she fears that the present situation could give rise to incompatibility with the fundamental right of the individual to a legal remedy.²⁴⁶ The Lords’ report also notes that a similar exclusion of matters relating to foreign policy does not exist in the European Court of Human Right’s jurisdiction.²⁴⁷ The question arises to what extent the exclusion of the CFSP from the ²⁴¹ La Pergola AG has been equally strong in his insistence that the Member States are subject to judicial review when relying on Art 297 EC: Opinion in Case C-273/97 Angela Maria Sirdar v The Army Board and Secretary of State for Defence [1999] ECR I-7403, points 26–27. See also P Eeckhout, Does Europe’s Constitution Stop at the Water’s Edge? Law and Policy in the EU’s External Relations (2005) 7, who remarks that the opinion of Jacobs AG ‘to some degree involves what Franck has called double-entry bookkeeping by the courts: the general test purportedly applied is strongly deferential, but closer analysis shows that there is substantial judicial review’. ²⁴² Art 297 EC. ²⁴³ P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 453. ²⁴⁴ cf Denza’s earlier identification of the two main reasons for excluding the Court’s jurisdiction in E Denza, The Intergovernmental Pillars of the European Union (2002) 312. ²⁴⁵ HL Select Committee on the European Union 6th Report: The Future Role of the European Court of Justice (HL Paper (2003–2004) no 47) 30, para 92, fn 27. ²⁴⁶ Ibid, 31, para 94. She is joined in her opinion by professors Pernice, Arnull, Schermers, and Craig, the Council of the Bars and Law Societies of the European Union and Eleanor Sharpston QC on behalf of the Bar European Group: ibid, 30, paras 96–97. ²⁴⁷ Ibid, 31, para 97; eg Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi (Bosphorus Airways) v Ireland [GC], no 45036/98, ECHR 2005-VI para 153; cf the Opinion of Mengozzi AG in Case C-354/04 P Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti v Council [2007]

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Court’s jurisdiction would still make sense if the EU would join the European Convention on Human Rights, which it would be obliged to do pursuant to New Article 6(2) EU.²⁴⁸ In answer to the fear of the Court’s possible activism in foreign policy matters, Craig describes the idea that the Court of Justice will start substituting its own judgment for that of the European Council and the Council as a ‘fantasy problem’, and argues that the Court would surely exercise only a ‘very low intensity review’.²⁴⁹ A survey of the world’s constitutional traditions suggests that courts tend not to get involved in substantive foreign policy decisions and leave the political institutions (normally the executive) a large margin of discretion, although the desirability and extent of this margin is open to discussion.²⁵⁰ While a comprehensive substantive review of CFSP measures would be problematic, it is difficult to maintain that a procedural review would be equally unimaginable. Why would the Member States be afraid of having the Court review the procedural mechanisms to which they are bound and to which they explicitly agreed when signing the EU Treaty?²⁵¹ Examples can be found in Community law where the Court does not enter into a substantive review of measures adopted by political institutions, but none the less conducts a procedural review.²⁵² Indeed, the Court ECR I-1579 and Case C-355/04 P SEGI, A. Zubimendi Izaga, A. Galarraga v Council [2007] ECR I-1657, point 84. Compare Bulduş v Turkey, no 64741/01, para 16, in which the European Court of Human Rights recalled that it had accepted on several occasions that the investigation of terrorist offences undoubtedly presents the authorities with special problems, but that this does not mean that the investigating authorities have carte blanche under Art 5 of the Convention to arrest suspects for questioning, free from effective control by the domestic courts and, ultimately, by the Convention supervisory institutions, whenever they choose to assert that terrorism is involved. ²⁴⁸ In general on the accession of the EU to the European Convention on Human Rights: eg AM Arnull, The European Union and its Court of Justice (2006) 384–385. ²⁴⁹ HL Select Committee on the European Union 6th Report: The Future Role of the European Court of Justice (HL Paper (2003–2004) no 47), 31, para 97; similarly: Denza at ibid, 31, para 95; in general: C Kaddous, Le droit des relations extérieures dans la jurisprudence de la Cour de justice des Communautés européennes (1998) 452–459. ²⁵⁰ On the debate in the USA regarding the ‘political questions doctrine’: eg TM Franck, Political Questions/Judicial Answers. Does the Rule of Law Apply to Foreign Aff airs? (1992); cf L Henkin, ‘Is There a Political Question Doctrine?’ (1976) 85 Yale LJ 597–625; K Lenaerts, Le juge et la constitution aux États-unis d’Amérique et dans l’ordre juridique européen (Brussels: Bruylant, 1988) 98–109. On US federal court jurisdiction over foreign relations in general: EE Terrell, ‘Foreign Relations and Federal Questions: Resolving the Judicial Split on Federal Court Jurisdiction’ (2002) 35 Vanderbilt J of Transnational L 1637–1678, in particular on the political questions doctrine: ibid, 1669–1671; for a defence of the ‘political questions doctrine’: J Nzelibe, ‘The Uniqueness of Foreign Affairs’ (2004) 89 Iowa LR 941–1009. ²⁵¹ Similarly: RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 228; RA Wessel, ‘Good Governance and EU Foreign, Security and Defence Policy’ in DM Curtin and RA Wessel (eds), Good Governance and the European Union: Reflections on Concepts, Institutions and Substance (2005) 238; MG Garbagnati Ketvel, ‘The Jurisdiction of the European Court of Justice in Respect of the Common Foreign and Security Policy’ (2006) 55 ICLQ 118. ²⁵² eg Case 191/82 EEC Seed Crushers’ and Oil Processors’ Federation (FEDIOL) v Commission [1983] ECR 2913, para 30; Case 187/85 EEC Seed Crushers’ and Oil Processors’ Federation (Fediol) v Commission [1988] ECR 4155, para 6; Case C-121/86 Anonymos Etaireia Epichirisseon Metalleftikon

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of First Instance held in the OMPI case with regard to Community economic and financial sanctions implementing a common position: Because the Community Courts may not, in particular, substitute their assessment of the evidence, facts and circumstances justifying the adoption of such measures for that of the Council, the review carried out by the Court of the lawfulness of decisions to freeze funds must be restricted to checking that the rules governing procedure and the statement of reasons have been complied with, that the facts are materially accurate, and that there has been no manifest error of assessment of the facts or misuse of power. That limited review applies, especially, to the Council’s assessment of the factors as to appropriateness on which such decisions are based.²⁵³

Advocate General Jacobs gave a similar description of a marginal review with regard to whether the Court could get involved in assessing whether the export of certain dual-use goods could raise security concerns. Judicial review in such cases, the Advocate General argued, ‘is confined to ensuring that manifest errors of appraisal have not occurred and that national authorities have not abused the powers conferred . . .’.²⁵⁴ Opinion 1/94²⁵⁵ shows that, even if it might have been argued that the WTO agreement²⁵⁶ is so important for European integration that it should come within the exclusive competence of the Community in its entirety, the Court will recognize the limits that the Treaty places on claims to such competence. The Opinion also illustrates the limited field of action open to the Court in external relations. The Court could delimit competences on the vertical and horizontal axes, and could point the Member States and the Community institutions to their duty to cooperate, but it did not spell-out what such cooperation should involve in practice, leaving that to be solved by the political institutions.²⁵⁷ The Court has shown a similar restraint in its case-law on the interactions between trade and foreign policy in general and on dual-use goods and economic sanctions in particular.²⁵⁸

Viomichanikon kai Naftiliakon AE and others v Council [1989] ECR 3919, para 8. Further: I Cheyne, ‘International Instruments as a Source of Community Law’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 259–260. ²⁵³ Case T-228/02 Organisation des Modjahedines du Peuple d’Iran (OMPI) v Council [2002] OJ C247/20, para 159. ²⁵⁴ Opinion in Case C-70/94 Fritz Werner Industrie-Ausrüstungen GmbH v Germany [1995] ECR I-3189, point 45. ²⁵⁵ Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267. ²⁵⁶ Agreement Establishing the World Trade Organization, 1867 UNTS 154; 33 ILM 1144 (1994). ²⁵⁷ cf S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 147; P Eeckhout, Does Europe’s Constitution Stop at the Water’s Edge? Law and Policy in the EU’s External Relations (2005) 13. The Court also appears to exercise the necessary caution with regard to the existing international obligations of the Member States: eg Case C-62/98 Commission v Portugal [2000] ECR I-5171, paras 44–50. ²⁵⁸ P Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law (2001) 222–223.

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Fear of granting the Court a role in the CFSP is largely based on a conception of the Court as activist and integrationist, and fear that it might extend this approach to sensitive areas of foreign policy. However, as pointed out by Jacobs, accusing the Court of activism is ‘based on unfamiliarity with the very notion of constitutional jurisprudence’.²⁵⁹ This requires a Court not only to take into account what is explicitly written down in a constitution, but equally the principles on which the legal order in question is founded on and is imbued with,²⁶⁰ which is what the Court has been doing.²⁶¹ Why should it not be trusted to exercise the necessary restraint, and to defer to executive discretion where appropriate?²⁶² In Franck’s words: ‘What is the point of a carefully calibrated system of divided and limited power if those who exercise authority can secure an automatic exemption from its strictures merely by playing the foreign-affairs trump?’²⁶³ This is still a very controversial matter. So controversial indeed, that neither the Convention, nor the 2004 and 2007 IGCs seem to have dared to change anything fundamental in the Court’s jurisdiction in CFSP matters. The Court has contributed significantly to the establishment of a truly EU system of foreign relations, for example through its case-law on dual-use goods and economic sanctions, its insistence on the duty of cooperation, and its guardianship of the acquis communautaire.²⁶⁴ It has, however, only been able to do so to a certain extent. Van Gerven argues that the less democratic legitimacy a system possesses, particularly with regard to the legislature, the greater the degree of judicial scrutiny the system should be subjected to. Th is is clearly not the case in the second pillar.²⁶⁵ The Court itself has acknowledged that, while its jurisdiction in the third pillar is less extensive than under the first pillar, ‘[i]t is even less extensive under Title V’, adding that ‘[w]hile a system of legal remedies, in particular a body of rules governing non-contractual liability, other than that established by the treaties can indeed be envisaged, it is for the Member States,

²⁵⁹ FG Jacobs, ‘Is the Court of Justice of the European Communities a Constitutional Court?’ in DM Curtin and D O’Keeffe (eds), Constitutional Adjudication in European Community and National Law: Essays for the Hon. Mr. Justice O’Higgins (1992) 32; FG Jacobs, The Sovereignty of Law: the European Way (2007) 42–50; cf A Von Bogdandy and J Bast, ‘The European Union’s Vertical Order of Competences: The Current Law and Proposals for its Reform’ (2002) 257. ²⁶⁰ cf in general R Dworkin, Law’s Empire (1986). ²⁶¹ cf J Bengoetxea, N MacCormick, and L Moral Soriano, ‘Integration and Integrity in the Legal Reasoning of the European Court of Justice’ in G de Búrca and JHH Weiler (eds), The European Court of Justice (2001) 43–85; A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (2002) 82–84. ²⁶² Similarly: MG Garbagnati Ketvel, ‘The Jurisdiction of the European Court of Justice in Respect of the Common Foreign and Security Policy’ (2006) 55 ICLQ 120. ²⁶³ TM Franck, Political Questions/Judicial Answers. Does the Rule of Law Apply to Foreign Aff airs? (1992) 5, referring to the USA. ²⁶⁴ See P Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law (2001) 150– 151 and 159–161. ²⁶⁵ W van Gerven, The European Union: A Polity of States and Peoples (2005) 63–64.

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should the case arise, to reform the system currently in force in accordance with Article 48 EU’.²⁶⁶ Van Gerven rightly identifies the absence of judicial review in the second pillar as a fundamental problem for the position of the Union as a Rechtsstaat, but adds that it cannot be a decisive argument in itself, given the similar position of foreign policy matters within the constitutional systems of many States. Foreign policy questions are considered non-justiciable in many jurisdictions, given the complexity and sensitivity of the issues at hand.²⁶⁷ While van Gerven is undoubtedly right that substantive judicial review in foreign policy matters within any constitutional system is very uncommon indeed, if not virtually non-existent, this should not divert us from fundamental questions about the implications of this constitutional position of foreign policy for any entity—State, international organization, or otherwise—that presents itself as subject to the rule of law. It is true that the EU probably does not differ much from other constitutional systems with regard to the absence of substantive judicial review of foreign policy decisions, but this does not answer the question of the implications of this absence for the characterization of the EU as a Rechtsstaat,²⁶⁸ in the same way that it does not make this question disappear with regard to any other constitutional system. The absence of judicial review does not only pose a problem for the Union’s status as a polity under the rule of law. In combination with the fact that there is little or no possibility for the Union in general and the Commission in particular to ensure compliance of the Member States with CFSP acts, the absence of judicial review might lead third countries to doubt whether the Member States can be made to comply at all. This could damage the credibility of the Union as a reliable partner in foreign policy matters, as well as create problems with regard to the international responsibility of the Union and the Member States. There would therefore be scope for an enforcement jurisdiction of the Court of Justice, akin to the one existing for the Community pursuant to Articles 226 and 227 EC.²⁶⁹ The lack of such a procedure under the current constitutional system is liable to damage seriously the abilities of the Union as an international actor. ²⁶⁶ See Case C-354/04 P Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti v Council [2007] ECR I-1579, para 50 and Case C-355/04 P SEGI, A. Zubimendi Izaga, A. Galarraga v Council [2007] ECR I-1657, para 50. ²⁶⁷ W van Gerven, The European Union: A Polity of States and Peoples (2005) 120. Cf T Koopmans, Courts and Political Institutions: A Comparative View (2003) 98–104. In general: TM Franck, Political Questions/Judicial Answers. Does the Rule of Law Apply to Foreign Aff airs? (1992). ²⁶⁸ On judicial review and the Rechtsstaat: N MacCormick, Questioning Sovereignty: Law, State, and Practical Reason (1999) 9. ²⁶⁹ cf, however, C Hillion and RA Wessel, ‘Restraining External Competences of EU Member States under CFSP’ in M. Cremona and B. De Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (forthcoming (2008)), who suggest that the Commission would, under current constitutional arrangements, be entitled to bring infringement proceedings on the basis of Art 226 EC for failing to comply with Art 10 EC against a Member State that concludes a bilateral agreement directly in contradiction with a first-second pillar cross-pillar international agreement.

6 The Dichotomy between EC External Relations and the CFSP 6.1 Introduction This chapter will first address the question how far it can be said that the second pillar already forms part of the ‘new legal order’ established by the EC Treaty. It will then consider whether the Constitution contained and the Treaty of Lisbon contains proposals that would helpfully move the CFSP in the direction of communitarization, by examining the potential applicability of primacy and direct effect in the second pillar and analysing the role that is proposed for the High Representative of the Union for Foreign Affairs and Security Policy (HRUFASP). Finally, the origins of the dichotomy between EC external relations and the CFSP will be traced, and it will be considered whether this dichotomy accurately reflects the current legal and political situation of EU foreign policy.

6.2 The CFSP and the ‘New Legal Order’ The CFSP has traditionally been judged to be completely outside the ‘new legal order’, which is often considered the very essence of what gives Community law its distinct character. In contrast to Title VI,¹ Title V of the EU Treaty lacks any reference to the two hallmarks of the legal order:² primacy and direct effect. Of course, the same is true of the EC Treaty, and that did not stop the Court from affirming the primacy of EC law over national law in Costa v ENEL.³ The question thus remains whether direct effect and primacy would apply to Title V of the EU Treaty. Lenaerts and Corthaut have noted that the reasons that led the Court in Costa v ENEL to affirm the primacy of EC law are easily transposable ¹ See the explicit exclusion of direct effect for framework decisions and decisions pursuant to Art 34(2)(b) and (c) EU. This Article will be repealed by the Treaty of Lisbon. ² See Opinion 1/91 Draft agreement between the Community, on the one hand, and the countries of the European Free Trade Association, on the other, relating to the creation of the European Economic Area [1991] ECR I-6079, para 21; cf FG Jacobs, ‘The Evolution of the European Legal Order’ (2004) 41 CML Rev 307. ³ Case 6/64 Flaminio Costa v ENEL [1964] ECR 585.

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to the entire EU legal order. Like the Community, the Union is established for an indefinite period, possesses its own institutions and has legal personality.⁴ The Member States have similarly transferred practical competences to the Union, to the extent of which they can be said to have limited their sovereignty. What matters in EU law, so the argument goes, is that an identifiable result is put forward that should not be thwarted by incompatible national measures, and the question whether individuals have been granted rights is an altogether separate one: ‘When it comes to precedence the only question is whether a conflict can be identified. In principle, if that is the case the conflicting provision of national law has to yield. This also means, however, that the exclusion only applies to the extent of the conflict.’⁵ It could of course be argued that primacy in essence entails the duty for Member State courts to set aside incompatible Member State law, and so is only relevant where the provision concerned enjoys direct effect.⁶ However, there is no inherent link between the concepts of primacy (essentially pacta sunt servanda⁷) and direct effect as they were developed in international law. Primacy imposes an obligation on all State authorities, including the legislator and the government, and not just on the courts.⁸ In EU law also the link is not as unbreakable as it may seem. Indeed, the Court in Van Gend en Loos⁹ dealt with direct effect without referring to primacy, because under Dutch constitutional law, the problem was not whether the relevant EEC Treaty provision enjoyed primacy, as it did by virtue of Article 66 (now 94) of the Dutch Constitution, but whether it enjoyed direct effect, viz whether individuals could invoke it before national courts.¹⁰ The primacy principle would thus seem in principle capable of being applied to the second pillar.¹¹ ⁴ The latter fact would be indisputable after the Treaty of Lisbon enters into force: see Art 47 TFEU. ⁵ K Lenaerts and T Corthaut, ‘Of Birds and Hedges: the Role of Primacy in Invoking Norms of EU Law’ (2006) ELR 289–291. See further T Corthaut, ‘Doorwerking van het tweede pijlerrecht van de EU in de Belgische rechtsorde—de Belgische rechter als doe-het-zelver in GBVBaangelegenheden?’ in J Wouters and D Van Eeckhoutte (eds), Doorwerking van internationaal recht in de Belgische rechtsorde (2006) 377–406. ⁶ As also noted by Lenaerts and Corthaut: ibid, 190. ⁷ cf M Shaw, International Law (2003) 811–812, who refers to pacta sunt servanda as ‘arguably the oldest principle of international law’. ⁸ B De Witte, ‘Direct Effect, Supremacy and the Nature of the Legal Order’, in P Craig and G de Búrca (eds), The Evolution of EU Law (1999) 177–183; cf P Craig at HL Select Committee on the European Union 6th Report: The Future Role of the European Court of Justice (HL Paper (2003– 2004) no 47) 15, para 36. ⁹ Case 26/62 NV Algemene Transport- en Expeditie Onderneming Van Gend & Loos v Nederlandse Administratie der Belastingen [1963] ECR 1. ¹⁰ B De Witte, ‘Direct Effect, Supremacy and the Nature of the Legal Order’, in P Craig and G de Búrca (eds), The Evolution of EU Law (1999) 181–182. ¹¹ For arguments for applying the principle of primacy to EU law in general, see eg CWA Timmermans, ‘The Constitutionalization of the European Union’ in P Eeckhout and T Tridimas (eds) (2002) 21 YEL 9–10; cf Advocate General Jacobs in HL Select Committee on the European Union 6th Report: The Future Role of the European Court of Justice (HL Paper (2003–2004) no 47) 15, para 36.

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However, contrary to what is the case regarding Community law, the Court of Justice has not been able to provide any guidance on the status of CFSP legal instruments in the legal orders of the Member States, due to the exclusion of its jurisdiction over Title V of the EU Treaty. In the absence of such guidance and of Treaty language on the matter, that status is de facto left to be determined by the respective constitutions of the Member States. It will most often concur with their attitude towards international legal instruments in general.¹² Similar problems arise regarding the potential application of the principle of direct effect in the second pillar. Without the jurisdiction of the Court, no authoritative judicial pronouncement is possible at the Union level to determine the interpretation of the conditions governing its application (in combination with primacy) to second pillar Treaty provisions or legal instruments, notwithstanding the fact that some CFSP legal instruments may in principle be capable of direct effect.¹³ Both under the current constitutional structure and after the ¹² In general on the relationship between international and national law: eg I Brownlie, Principles of Public International Law (2003) 31–53; E Denza, ‘The Relationship Between International and National Law’ in MD Evans (ed.), International Law (2003) 415–442; M Shaw, International Law (2003) 120–174; M Bossuyt and J Wouters, Grondlijnen van internationaal recht (2005) 143–173; see already H Lauterpacht, ‘Is International Law Part of the Law of England?’ in E Lauterpacht (ed.), International Law. Being the Collected Papers of Hersch Lauterpacht Q.C., LL.D., F.B.A., Volume 2, The Law of Peace, Part I, International Law in General (1975) 537–569. ¹³ eg Council Common Position 2002/400/CFSP of 21 May 2002 concerning the temporary reception by Member States of the European Union of certain Palestinians [2002] OJ L138/33 (as last amended by Council Common Position 2004/493/CFSP of 17 May 2004 [2004] OJ L181/24), Art 3 of which, for example, provides that each receiving Member State is to ‘provide the Palestinians it receives with a national permit to enter its territory and stay for a period of up to 30 months’. This period has been extended a number of times and most recently by Council Common Position 2007/705/CFSP of 30 October 2007 concerning the temporary reception by Member States of the European Union of certain Palestinians [2007] OJ L 285/54, Art 1 of which provides that the receiving Member States are to extend the validity of the national permits for a further period of 12 months; Council Decision 2007/829/EC of 5 December 2007 concerning the rules applicable to national experts and military staff on secondment to the General Secretariat of the Council and repealing Decision 2003/479/EC [2007] OJ L327/10, which sets out in great detail the rights and obligations of seconded national experts and seconded military staff, as well as all the applicable conditions of employment. Further examples of CFSP acts that might be relied upon before national courts are a CFSP legal instrument imposing sanctions not needing further implementation through a Community legal instrument, eg an arms embargo (eg Common Position 96/746/CFSP of 17 December 1996 defined by the Council on the basis of Article J.2 of the Treaty on European Union concerning the imposition of an embargo on arms, munitions and military equipment on Afghanistan [1996] OJ L342/1; Common Position 1999/206/CFSP of 15 March 1999 defined by the Council on the basis of Article J.2 of the Treaty on European Union, concerning Ethiopia and Eritrea [1999] OJ L72/1) or a CFSP legal instrument laying down criteria or exceptions regarding sanctions imposed on third countries (eg Common Position 95/544/CFSP of 4 December 1995 defined by the Council on the basis of Article J.2 of the Treaty on European Union, on Nigeria [1995] OJ L309/1; Council Common Position 2008/160/CFSP of 25 February 2008 concerning restrictive measures against the leadership of the Transnistrian region of the Republic of Moldova [2008] OJ L51/23). See RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 233–234, who also notes that individuals and third states or international organizations could bring cases before the national courts of the Member States with regard to liability arising out of a CFSP action that cannot be brought against the Union or the Community. Compare K Lenaerts and T Corthaut, ‘Of Birds and Hedges: the Role of

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entry into force of the Treaty of Lisbon, this would be left to the national courts of the Member States,¹⁴ potentially jeopardizing the unity of application of second pillar law. Transplanting the conditions for direct effect from the Community legal order to the CFSP would not bring a solution any closer. Without the judicial pronouncements of the Court, we are left without any authoritative guidance at the Union level, and hence any way of correcting the pronouncements of Member State courts on the matter. Primacy and direct effect of CFSP acts would therefore seem to be compatible with the current EU constitutional structure but, as is traditionally the case under international law,¹⁵ it is de facto left to the national constitutional system of the Member State concerned to determine whether and under which circumstances this should be so.¹⁶ The presumed absence of primacy and direct effect, and hence the exclusion of the CFSP from the ‘new legal order’ has led many to regard the CFSP as a ‘mere’ international law framework of cooperation.¹⁷ A consequence has been the lack of legal scholarship on the topic.¹⁸ This has changed in recent years, with legal scholars, on the one hand, showing increasing interest in a legal analysis of the CFSP¹⁹ and, on the other hand, emphasizing the uniting factors of the overall Primacy in Invoking Norms of EU Law’ (2006) ELR 314. See further T Corthaut, ‘Doorwerking van het tweede pijlerrecht van de EU in de Belgische rechtsorde—de Belgische rechter als doe-hetzelver in GBVB-aangelegenheden?’ in Wouters, J and Van Eeckhoutte, D (eds), Doorwerking van internationaal recht in de Belgische rechtsorde (2006) especially 400–404, also referring (at 383) to the example of a person who, after having figured on a CFSP list of terrorists, obtains his removal from the list at EU level, only to find that he is still listed as a terrorist in the national measure taking in implementation of the CFSP list. Should this person not be allowed to invoke his removal from a list of terrorists on a CFSP list before the national court? ¹⁴ cf P Koutrakos, EU International Relations Law (2006) 495–497, who expresses similar concerns. ¹⁵ See ch 2.2. ¹⁶ cf K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 806–807, para 18-019; also R Gosalbo Bono, ‘Some Reflections on the CFSP Legal Order’ (2006) 34 CML Rev 378, who argues that direct effect and primacy ‘cannot be said to be completely alien to the CFSP legal order’ under the present constitutional system. ¹⁷ cf A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (2002) 113–114: ‘Legal writing still tends to concentrate on the Community legal order and to leave the second and third pillars conceptually outside the constitutional analysis, somewhere in the (presumably less civilised) arena of international law from which it is hoped those pillars will one day escape by being “communitarised”.’ ¹⁸ See similar remarks by eg P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 139–140, who speaks of the ‘academic quicksand lawyers were sucked into when attempting to analyse the legal dimension of the CFSP’: ibid, 397; RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 10–13; M Brkan, ‘Exploring EU Competence in CFSP: Logic or Contradiction?’ in 2 CYELP 173; C Hillion and RA Wessel, ‘Restraining External Competences of EU Member States under CFSP’ in M. Cremona and B. De Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (forthcoming (2008)). ¹⁹ eg RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999); P Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law (2001); E Denza, The Intergovernmental Pillars of the European Union (2002); P Eeckhout, External Relations of the

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EU legal order and pointing out that there is such a thing as specifically EU constitutional rules and structures.²⁰ Curtin and Dekker have famously described the Union as a ‘layered international organisation’ with a unitary character and they deny that the CFSP is a purely intergovernmental addition to the Community.²¹ Support can be found for this position in the Airport Transit Visas, Environmental Penalties, Ship-Source Pollution, and Small Arms and Light Weapons cases, as well as in the Pupino case. The implication of the Court’s reasoning in the Airport Transit Visas,²² Environmental Penalties,²³ and Ship-Source Pollution,²⁴ and Small Arms and Light Weapons ²⁵ cases, for the horizontal and vertical division of competences is that the CFSP cannot be regarded as a simple form of intergovernmental cooperation that happens to be linked, through the EU Treaty, with the EC Treaty. The Court made it clear that, if the EU institutions take action, the relevant rules of the EU Treaty and the EC Treaty will have to be complied with, and this counts as much for action within the CFSP as it does for action within the Community framework.²⁶ While significant differences exist between the different pillars, all belong to the same ‘community of law’, the same legal order, and there are certain basic rules of the game that have to be complied with over the entire set of EU policies. The Pupino case concerns an Italian nursery school teacher who was charged before the Tribunale di Firenze with inflicting injuries on pupils. The Public European Union: Legal and Constitutional Foundations (2004); C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005); P Koutrakos, EU International Relations Law (2006). ²⁰ eg B De Witte, ‘The Pillar Structure and the Nature of the European Union: Greek Temple or French Gothic Cathedral?’ in T Heukels, N Blokker, and M Brus (eds), The European Union after Amsterdam (1998) 51–68; A Von Bogdandy, ‘The Legal Case for Unity: the European Union as a Single Organization with a Single Legal System’ (1999) 36 CML Rev 887–910; RA Wessel, ‘The Inside Looking Out: Consistency and Delimitation in EU External Relations’ (2000) 37 CML Rev 1135–1171; I Pernice, ‘Multilevel Constitutionalism in the European Union’ (2002) 27 ELR 511–529; CWA Timmermans, ‘The Constitutionalization of the European Union’ in (2002) 21 YEL 1–11; A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (2002) 122 et seq; P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 3 et passim; K Lenaerts and D Gerard, ‘The Structure of the Union According to the Constitution for Europe: The emperor is getting dressed’ (2004) 29 ELR 314; R Gosalbo Bono, ‘Some Reflections on the CFSP Legal Order’ (2006) 34 CML Rev 368; AM Arnull, AA Dashwood, M Dougan, M Ross, E Spaventa, and D Wyatt, Wyatt and Dashwood’s European Union Law (2006) 327, para 10-005. ²¹ D Curtin and I Dekker, ‘The EU as a “Layered” International Organization: Institutional Unity in Disguise’ in P Craig and G de Búrca (eds), The Evolution of EU Law (1999) 83–136. ²² Case C-170/96 Commission v Council [1998] ECR I-2763. ²³ Case C-176/03 Commission v Council [2005] ECR I-7879. ²⁴ Case C-440/05 Commission v Council [2006] OJ C22/10. ²⁵ Case C-91/05 Commission v Council [2005] OJ C115/10. ²⁶ See also the Opinion of Mengozzi AG in Case C-91/05 Commission v Council [2005] OJ C115/10, points 31 and 56–60. cf P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 150.

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Prosecutor’s Office asked the judge in charge of preliminary enquiries to take the testimony of eight children by an exceptional procedure for hearing evidence early, and under special arrangements. However, because there had been no sexual abuse, the special procedure and arrangements were in casu not available under Italian law. The Tribunale di Firenze had doubts about the compatibility of this non-availability with Articles 2, 3, and 8 of Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings,²⁷ and referred the case to the Court of Justice for a preliminary ruling.²⁸ Article 34(2)(b) EU excludes framework decisions adopted under Title VI from having direct effect. However, the question was whether the obligation on the national authorities to interpret their national law as far as possible in the light of the wording and purpose of Community directives (or in other words the duty of consistent interpretation) applies with the same effects and within the same limits where the act concerned is a framework decision taken on the basis of Title VI of the EU Treaty. The Court held that the wording of Article 34(2) (b) EU is closely inspired by that on directives in Article 249, paragraph 3 EC. Pursuant to Article 34(2)(b) EU, framework decisions bind the Member States as to the result to be achieved but leave to the national authorities the choice of form and methods.²⁹ And the Court continued: 34. The binding character of framework decisions, formulated in terms identical to those of the third paragraph of Article 249 EC, places on national authorities, and particularly national courts, an obligation to interpret national law in conformity with Community law. 35. The fact that, by virtue of Article 35 EU, the jurisdiction of the Court of Justice is less extensive under Title VI of the Treaty on European Union than it is under the EC Treaty, and the fact that there is no complete system of actions and procedures designed to ensure the legality of the acts of the institutions in the context of Title VI, does nothing to invalidate that conclusion.

The Court also held that its jurisdiction to give preliminary rulings with regard to framework decisions³⁰ would be deprived of most of its useful effect if individuals were not entitled to invoke framework decisions in order to obtain a conforming interpretation of national law before the courts of the Member States.³¹ Italy and the UK had argued that the EU Treaty contains no obligation similar to that laid down in Article 10 EC, on which the case-law of the Court partially relied in order to justify the obligation to interpret national law in conformity with Community law. The Court did not accept this line of argument. It held that it would be difficult for the Union to carry out its tasks as defined in Article 1 ²⁷ ²⁸ ²⁹ ³⁰ ³¹

[2001] OJ L82/1. Case C-105/03 Criminal proceedings against Maria Pupino [2005] ECR I-5285, paras 16–18. Ibid, para 33. Art 35 EU. Case C-105/03 Criminal proceedings against Maria Pupino [2005] ECR I-5285, para 38.

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EU effectively if the principle of loyal cooperation, requiring in particular that Member States take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under EU law, were not also binding in the area of the PJCCM, which is ‘entirely based on cooperation between the Member States and the institutions’.³² The Court therefore concluded that the duty of consistent interpretation is binding in relation to framework decisions adopted in the context of Title VI of the EU Treaty, and added that ‘[w]hen applying national law, the national court that is called upon to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with Article 34(2) (b) EU’.³³ While the Pupino case concerns the third pillar, arguably the same analysis could apply to the second pillar.³⁴ The Court bases its confirmation of the applicability of the duty of consistent interpretation to the third pillar on the binding character of Framework Decisions,³⁵ and on the duty of cooperation as a principle of EU law.³⁶ This reasoning seems capable of being transposed to the second pillar. While the binding character of the second pillar measures cannot be said to be ‘formulated in terms identical to those of the third paragraph of Article 249 EC’,³⁷ this difference between third and second pillar measures is not sufficient to exclude conclusively the duty of consistent interpretation from the second pillar. Moreover, not only does the Court’s reasoning with regard to the general applicability of the duty of loyal cooperation to EU law as a whole seem equally applicable to the second pillar, but contrary to the third pillar, the second pillar does contain a provision corresponding to Article 10 EC, namely Article 11(2) EU. It is recalled that both the binding character of directives and the presence of a duty of loyal cooperation were the main reasons for the recognition of the duty of consistent interpretation in the first pillar by the Court in von Colson.³⁸ Moreover ³² Ibid, para 42; see also Case T-228/02 Organisation des Modjahedines du Peuple d’Iran (OMPI) v Council [2006] ECR II-4665, para 123, holding that the principle of loyal cooperation ‘is of general application’ and is especially binding in the third pillar. ³³ Case C-105/03 Criminal proceedings against Maria Pupino [2005] ECR I-5285, paras 39–43. ‘as far as possible’ in this context apparently means that ‘the principle of interpretation in conformity with Community law cannot serve as the basis for an interpretation of national law contra legem. That principle does, however, require that, where necessary, the national court ‘consider the whole of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the framework decision’: ibid, para 47. ³⁴ cf E Spaventa, ‘Opening Pandora’s Box: Some Reflections on the Constitutional Effects of the Decision in Pupino’ (2007) 3 Eur Constitutional L Rev 5–24. ³⁵ Case C-105/03 Criminal proceedings against Maria Pupino [2005] ECR I-5285, para 34. ³⁶ Ibid, paras 41–42; see also the Opinion of Kokott AG, points 25–27, concluding that ‘Article 10 EC lays down some axiomatic principles, namely, that obligations must be fulfi lled and damaging measures refrained from. The same applies in Union law, without needing to be expressly mentioned.’ ³⁷ Case C-105/03 Criminal proceedings against Maria Pupino [2005] ECR I-5285, para 34. ³⁸ Case 14/83 Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen [1984] ECR 1891, para 26.

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in the Gestoras and Segi cases, the Court held, referring to the Pupino judgment, that a common position ‘requires the compliance of the Member States by virtue of the principle of the duty to cooperate in good faith, which means in particular that Member States are to take all appropriate measures, whether general or particular, to ensure fulfillment of their obligations under European Union law’.³⁹ All this would seem to point to the conclusion that the duty of consistent interpretation does apply to the second pillar. This would imply that all national legislation should be interpreted as far as possible so as to comply with relevant CFSP acts, and more importantly, that citizens of the Member States should be able to take their governments to their own national courts in order to ensure that the principle is respected. Recognition of the duty of consistent interpretation would tend to support the contention that the CFSP is not just a simple form of intergovernmental cooperation loosely attached to the Community.⁴⁰ The national courts would, however, not be able to refer a question for a preliminary ruling to the Court of Justice, since it lacks jurisdiction in the respect with regard to the second pillar. None the less, the lack of preliminary ruling jurisdiction in the case of Member States who have not made a declaration pursuant to Article 35(2) EU did not deter the Court from holding that the duty applies under the third pillar. While part of the justification for applying the duty to framework decisions lies in the fact that to hold otherwise would deprive the Court’s jurisdiction to give preliminary rulings of its useful effect,⁴¹ it is not clear from the Court’s reasoning that the duty of consistent interpretation only applies when preliminary ruling jurisdiction exists. In fact, in what must be regarded as a reply to the objection by the UK that the third pillar contains ‘no complete system of actions and procedures’ designed to ensure legality,⁴² because acts can only be reviewed by way of a request for a preliminary ruling if the Member State concerned has made a declaration pursuant to Article 35(2) EU,⁴³ the Court held that this does nothing to invalidate the conclusion that the duty of consistent interpretation applies to the third pillar.⁴⁴ The general terms in which the Court finally affirms the application of the duty of consistent interpretation to ³⁹ Case C-354/04 P Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti v Council [2007] ECR I-1579, para 52 and Case C-355/04 P SEGI, A. Zubimendi Izaga, A. Galarraga v Council [2007] ECR I-1657, para 52. At issue was Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism [2001] OJ L344/93, which finds its legal basis in both the second (Art 15 EU) and the third pillar (Art 34 EU). ⁴⁰ cf M Ross, ‘Effectiveness in the European Legal Order(s): Beyond Supremacy to Constitutional Proportionality’ (2006) 31 ELR 483: ‘The Court’s clear message in Pupino was that the EU operates as neither a fig leaf for unreviewable Member State action nor, worse, as a parasite that sucks the life blood out of the EC.’ ⁴¹ Case C-105/03 Criminal proceedings against Maria Pupino [2005] ECR I-5285, para 38. ⁴² cf eg Case T-228/02 Organisation des Modjahedines du Peuple d’Iran (OMPI) v Council [2002] OJ C247/20, para 54, where the Court of First Instance held that the EU Treaty has ‘established a limited system of judicial review’ for the second and the third pillar. ⁴³ See the Opinion of Kokott AG in Case C-105/03 Criminal proceedings against Maria Pupino [2005] ECR I-5285, point 35. ⁴⁴ Case C-105/03 Criminal proceedings against Maria Pupino [2005] ECR I-5285, para 35.

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third pillar measures also points to the conclusion that the duty applies to all framework decisions,⁴⁵ regardless of whether the Member State concerned has accepted preliminary ruling jurisdiction under Article 35(2) EU. If this is indeed what the Court meant, a clear risk exists that the national courts of those Member States who do not accept the Court’s jurisdiction in the third pillar, and the national courts of all Member States with regard to the second pillar, will interpret EU law on their own terms, endangering the unity and coherence of the second pillar and the third pillar. If the Court is serious about the duty of consistent interpretation applying to the third pillar—and by extension to the second pillar—which it seems to be, the argument for a Treatyamendment extending the preliminary rulings jurisdiction to the second pillar, and its extension as regards the third pillar to all Member States, becomes very compelling indeed. The Court itself appears to have taken a step in that direction, by interpreting its preliminary ruling jurisdiction to include the possible review of a third pillar common position which, because of its content, has a scope going beyond that assigned by the EU Treaty to that kind of act.⁴⁶

6.3 Changes Proposed by the Constitution and the Treaty of Lisbon 6.3.1 Legal order The Convention and the 2004 IGC seem—to an extent—to have shared the conception of the EU as one legal order by abolishing the pillar structure and by subjecting the CFSP to the overall constitutional framework of the EU, set out in Part I of the Constitution.⁴⁷ The Constitution would have repealed the EC Treaty, the EU Treaty and, under certain conditions, the acts and treaties that have supplemented or amended them,⁴⁸ and the EU established by the Constitution would have been the successor to the EU established by the EU Treaty and to the EC.⁴⁹ The abolition of the pillar structure would, however, not have implied a complete harmonization of procedures and an integration of all policies into the original Community.⁵⁰ The Constitution would have taken into account the ⁴⁵ Ibid, paras 42–43; see also the Opinion of Kokott AG, point 36. ⁴⁶ Case C-354/04 P Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti v Council [2007] ECR I-1579, para 54 and Case C-355/04 P SEGI, A. Zubimendi Izaga, A. Galarraga v Council [2007] ECR I-1657, para 54. See further ch 5.3.2.1. ⁴⁷ P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 139; cf K Lenaerts and D Gerard, ‘The Structure of the Union According to the Constitution for Europe: The emperor is getting dressed’ (2004) 29 ELR 308. ⁴⁸ Art IV-437 TC. ⁴⁹ Art IV-438 TC. ⁵⁰ cf M Dougan, ‘The Convention’s Draft Constitutional Treaty: Bringing Europe closer to its lawyers?’ (2003) 28 ELR 764.

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different characters of different policies and would therefore still have permitted a substantial amount of differentiation in how the Union’s institutions are involved in law-making. In this sense, while seeming to abolish the pillar structure, the Constitution had in fact kept it standing (at least with respect to foreign policy), albeit behind an interesting new façade with trompe l’oeils.⁵¹ The 2007 IGC seems to have decided to tear down again that new façade by keeping the EU Treaty and the Treaty on the Functioning of the European Union as two distinct Treaties, with the CFSP and the European Neighbourhood Policy (ENP) as the only substantive policies parked, rather oddly, in the EU Treaty. Having said that, the Treaty of Lisbon would still introduce a single legal order for the Union, albeit with a more markedly separate sub-order for the CFSP. New Article 1 EU would provide: ‘The Union shall be founded on the present Treaty and on the Treaty on the Functioning of the European Union (hereinafter referred to as “the Treaties”). Those two Treaties shall have the same legal value. The Union shall replace and succeed the European Community.’ Similarly, Article 1(2) TFEU would provide that the Treaty on the Functioning of the European Union and the EU Treaty ‘constitute the Treaties on which the Union is founded’, while adding that the two Treaties ‘have the same legal value’. This forms a rather marked contrast with the current Article 1, paragraph 3 EU, which provides that the Union is ‘founded on the European Communities, supplemented by the policies and forms of cooperation established’ by the EU Treaty. It seems that with the entry into force of the Treaty of Lisbon, the priority of the first pillar over the second pillar would end. This seems to be confirmed by New Article 40 EU, which in contrast to Article 47 EU, protects intrusions from the CFSP onto the first pillar and vice versa. None the less, it remains an interesting exercise to examine what some of the consequences could have been of the Constitution’s supposedly more thorough ‘abolition of the pillars’ on the EU legal order. Part I of the Constitution contained a number of fundamental principles and rules that would have applied to all policy areas, including the CFSP and the PJCCM. It would have rendered a number of fundamental principles developed in the first pillar applicable to the entire Union and so would have achieved a measure of communitarization.⁵² ⁵¹ cf AA Dashwood, ‘Issues of Decision-making in the European Union after Nice’ in AM Arnull and D Wincott (eds), Accountability and Legitimacy in the European Union (2002) 40, who argued that the pillar structure would survive in some way in any constitutional reform in the near future; similarly: P Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law (2001) 224; and see G de Búrca, The EU Constitution: In Search of Europe’s International Identity (2005) 11. CWA Timmermans has used the trompe l’oeil metaphor to describe the single institutional framework with its differentiated roles and powers of the institutions, see: ‘Communication au Colloque de l’Université Libre de Bruxelles’, L’Union européenne après Maastricht (1992), cited in C FlaeschMougin, ‘Le Traité de Maastricht et les compétences externes de la Communauté européenne: à la recherche d’une politique externe de l’union’ (1993) 29 Cahiers de droit européen 376. ⁵² M Cremona, ‘The Draft Constitutional Treaty: External Relations and External Action’ (2003) 40 CML Rev 1351. Compare MG Garbagnati Ketvel, ‘Almost, but not quite: The Court of Justice and Judicial Protection of Individuals in the Third Pillar’ (2007) Eur L Reporter 235, who

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Perhaps the most controversial issue was the possible effect of Articles I-6 and I-33(1) TC. Article I-6 TC affirmed that ‘The Constitution, and law adopted by the Union’s Institutions in exercising competences conferred on it, shall have primacy over the law of the Member States’, and Article I-33(1) TC that ‘[a] European decision shall be a non-legislative act, binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.’ Article I-40(3) TC stated in relation to the CFSP that the ‘European Council and the Council shall adopt the necessary European decisions.’ Those provisions would have explicitly extended primacy, and quite probably the potential for direct effect, to the CFSP. Article I-6 TC was one of the most contested provisions of the Constitution. The Article appeared to say unequivocally that EU law in its entirety would have enjoyed primacy, including CFSP Treaty provisions and legal instruments.⁵³ Article I-6 TC itself mentioned only primacy without referring to direct effect. According to the Declaration on Article I-6,⁵⁴ the IGC noted ‘that Article I-6 reflects existing case-law’ of the Court of Justice and the Court of First Instance. Did the Declaration mean that, since the Court of Justice and the Court of First Instance have only rendered judgments on the application of direct effect and primacy to the first pillar, those principles were excluded from the second pillar? However, how could both Courts be taken to have said anything on the application of those principles with regard to the second pillar, since they lack jurisdiction to do so? The application of primacy and direct effect to the second pillar could thus be said to ‘reflect existing case-law’ in the sense that it does not run counter to any existing case-law of the Court.⁵⁵ The Declaration was plainly not helpful in clarifying the scope of application of Article I-6 TC; nor, for that matter, was it legally binding. Article I-6 and its affirmation of primacy were not included in the Treaty of Lisbon. A new declaration was, however, annexed to the Final Act, in which the IGC recalls that ‘in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law’.⁵⁶ This is, once again, a not very helpful declaration. argues that the Court of Justice has been applying to the third pillar principles first developed in the first pillar, which has resulted in a blurring of the demarcation between those two pillars. ⁵³ cf, however, M Cremona, ‘The Draft Constitutional Treaty: External Relations and External Action’ (2003) 40 CML Rev 1356, who suggested that ‘law’ in Art I-6 TC should be read as ‘legislative acts’, which would exclude CFSP legal instruments. In absence of any conclusive evidence supporting that interpretation, it would have been difficult to sustain. ⁵⁴ Annexed to the Treaty establishing a Constitution for Europe [2004] OJ C310/420. ⁵⁵ Similarly: AM Arnull, AA Dashwood, M Dougan, M Ross, E Spaventa, and D Wyatt, Wyatt and Dashwood’s European Union Law (2006) 380, paras 11-031 and 11-032. ⁵⁶ See also the Opinion of the Council Legal Service on the primacy of EC law, which the IGC decided to attach as an Annex to the Final Act: ‘Opinion of the Council Legal Service of 22 June 2007. It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case-law (Costa/ENEL, 15 July 1964, Case 6/64 . . .) there was no mention of primacy in the treaty. It is

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If Article I-6 TC referred to primacy as pacta sunt servanda, this would have been nothing new with regard to CFSP provisions. As argued above, they are binding on the Member States, and should be given precedence in case of conflict, their effect in the Member States’ legal order, however, de facto depending upon national constitutional systems. It was, however, the possibility that Article I-6 TC referred to primacy with the implication of potential direct effect that appeared to cause concern. It would indeed have represented a significant departure from what the current legal position is commonly understood to be.⁵⁷ The Constitution would, however, not have granted the Court jurisdiction over the second pillar. As mentioned above, the application of direct effect, in combination with primacy, to the second pillar without the guidance of the Court of Justice would raise concerns regarding the unity of application of second pillar Treaty provisions and legal instruments.⁵⁸ The Treaty of Lisbon, through Article 275 TFEU,⁵⁹ would of course give the Court jurisdiction to rule on proceedings, brought in accordance with the conditions laid down in Article 263(4) TFEU⁶⁰ (direct actions by citizens), reviewing the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of EU Treaty provisions covering the CFSP. Would this solve the problems with the potential application of direct effect and primacy to the CFSP? It would certainly enable the Court to make authoritative pronouncements on a limited category of CFSP legal instruments, and to that extent, the Court could provide limited guidance for national courts. However, the Court would still lack jurisdiction to give preliminary rulings on the CFSP,⁶¹ and would therefore be deprived of the means to develop a clear set of conditions for direct effect and primacy of decisions within the CFSP sphere providing for restrictive measures against natural or legal persons. still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.’ ⁵⁷ M Dougan, ‘The Convention’s Draft Constitutional Treaty: Bringing Europe closer to its lawyers?’ (2003) 28 ELR 764. ⁵⁸ The Court’s lack of jurisdiction over CFSP matters was put forward by Dashwood as one of the reasons for thinking that it could not have been intended under the Constitution that primacy should extend to the CFSP. A second reason would have been that Article I-16 TC singled the CFSP out as a specific competence in a category of its own, and by thus preserving the particularity of CFSP competences, the Constitution in effect excluded primacy from this area: AA Dashwood, ‘The EU Constitution—What Will Really Change?’ in J Bell and C Kilpatrick (eds), (2004–2005) 7 CYELS 37–38. However, that interpretation would have been difficult to reconcile with the unequivocal language of Article I-6 TC and its position in the Constitution. ⁵⁹ cf Art III-376 TC. ⁶⁰ cf Art III-365(4) TC. ⁶¹ See the order of the Court in Case C-167/94 Criminal proceedings against Juan Carlos Grau Gomis and others [1995] ECR I-1023, para 6: ‘By virtue of Article L of the Treaty on European Union [now Article 46 EU], a national court may not refer to the Court a question on Article B of the Treaty on European Union [now Article 2 EU] in application of Article 177 of the Treaty [now Article 234 EC]. The Court therefore clearly has no jurisdiction to interpret that article in the context of such proceedings.’

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Had the authors of the Constitution been serious about direct effect and primacy in the CFSP, they should at least also have provided for preliminary ruling jurisdiction for the Court over the limited category of CFSP legal instruments with respect to which the Court was granted jurisdiction to hear direct actions. Would that have solved all possible problems with regard to direct effect and primacy of the CFSP? If the principles of direct effect and primacy were to be applied throughout the constitutional order of the Union, this would presumably include CFSP provisions and decisions other than the category of decisions falling within the scope of Article 275 TFEU.⁶² It would, therefore, presumably, be open to citizens to bring proceedings before their national courts, arguing that action taken by their national authorities infringes one or other Treaty provisions relating to the CFSP or a legal instrument adopted on its basis. Who would determine whether the Treaty provisions relied upon were directly effective, and under what conditions? The direct effect and primacy of CFSP provisions and acts can hardly be practically imagined without the jurisdiction of the Court in this area.⁶³ This appears, none the less, to have been the system envisaged by the Constitution. The drafters of the Constitution had made a half-hearted attempt to introduce fundamental principles of the Community legal order into the CFSP, without drawing all the necessary conclusions. It is therefore not a surprise that the 2007 IGC decided to drop the explicit extension of primacy to the entire EU legal order. However, as mentioned above, this does not rule out the potential applicability of direct effect and primacy in the second pillar. The Member State courts should therefore, by Treaty amendment, at least be given the possibility of requesting a preliminary ruling to the Court in the field of the CFSP. It would be advisable to make this preliminary ruling jurisdiction compulsory on the same footing as current Article 234 EC, even more so should any future Treaty amendment explicitly impose primacy, with or without the implication of direct effect, throughout the EU legal order.

6.3.2 From Union Minister for Foreign Affairs to High Representative of the Union for Foreign Affairs and Security Policy The origins of the idea to introduce an ‘EU foreign minister’ can be traced back to the efforts of Convention Working Group VII to find ways of linking the present functions of the High Representative for the common foreign and security policy (HRCFSP) with those of the Commissioner for external relations.⁶⁴ The Union ⁶² cf Art III-376 TC. ⁶³ Similarly: Arnull at HL Select Committee on the European Union 6th Report: The Future Role of the European Court of Justice (HL Paper (2003–2004) no 47) 16, para 38. ⁶⁴ European Convention, Working Group VII, Working document 17 (WG VII—WD 17). European Convention, Final Report of Working Group VII on External Action (CONV 459/02), paras 25–40.

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Minister for Foreign Affairs (UMFA) was introduced in the Constitution with a potentially unifying role in the formulation and implementation of EU foreign policy. It was widely reported in the press that the UMFA did not survive the 2007 IGC. The Treaty of Lisbon, however, saw the introduction of the post of High Representative of the Union for Foreign Affairs and Security Policy (HRUFASP). The title is misleading in that it suggests that the new post is merely a slightly reoriented HRCFSP. However, a look at the relevant provisions in the Constitution and in the Treaty of Lisbon will quickly lead to the conclusion that the HRUFASP is in fact an equally fragrant UMFA by another name. The HRUFASP would be appointed by the European Council, acting by QMV and with the agreement of the President of the Commission.⁶⁵ He or she would be expected to ‘conduct the Union’s common foreign and security policy’.⁶⁶ The HRUFASP would at the same time be one of the Vice-Presidents of the Commission, responsible for handling external relations and for coordinating other aspects of the Union’s external action.⁶⁷ As a member of the Commission, the HRUFASP’s appointment would also be subject to a vote of consent by the European Parliament.⁶⁸ He or she would be bound by Commission procedures when exercising his or her responsibilities within the Commission, to the extent that this was consistent with his or her obligations with respect to the CFSP and as Chair of the Foreign Affairs Council.⁶⁹ The HRUFASP would have very significant responsibilities.⁷⁰ He or she would chair the Foreign Affairs Council⁷¹ and would be expected ‘to contribute through his or her proposals towards the preparation of the common foreign and security policy’, while ensuring the ‘implementation of the decisions adopted by the European Council and the Council’. The HRUFASP would also be the Union’s external representative in matters relating to the CFSP: ‘He shall conduct political dialogue on the Union’s behalf and shall express the Union’s position in international organizations and at international conferences.’ The HRUFASP would organize the coordination of the actions of the Member States in international organizations and at international conferences.⁷² It is provided that, when the ⁶⁵ New Art 18(1) EU (cf Art I-28(1) TC). ⁶⁶ New Art 18(2) EU (cf Art I-28(2) TC). ⁶⁷ New Art 18(4) EU (cf Art I-28(4) TC). ⁶⁸ New Art 17(7), para 3 EU (cf Art I-27(2) TC); cf R Gosalbo Bono, ‘Some Reflections on the CFSP Legal Order’ (2006) 34 CML Rev 377, who refers to this (as regards the UMFA) as ‘a qualitative step away from intergovernmentalism in favour of the Community legal order’. ⁶⁹ New Art 18(4) EU (cf Art I-28(4) TC). ⁷⁰ New Art 27 EU (cf Art III-296 TC). ⁷¹ ch 4.3.3.3. Some doubt remains on what the division of competences would be between the HRUFASP and the Secretary-General of the Council, given that the latter function is also performed by the HRCFSP under the present constitutional structure. Cf regarding the Constitution: DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 272. ⁷² New Art 34(1) EU (cf Art III-305(1) TC).

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Union has defined a position on a subject that is on the agenda of the United Nations Security Council, Member States that sit on the Security Council ‘shall request’ that the HRUFASP be asked to present the Union’s position.⁷³ The HRUFASP would also have power to request the PSC to deliver an opinion to the Council.⁷⁴ Union delegations in third countries would be placed under his or her authority.⁷⁵ In cases requiring a rapid decision, the HRUFASP, on his or her own initiative or at the request of a Member State, ‘shall convene an extraordinary meeting of the Council within forty-eight hours or, in an emergency, within a shorter period’.⁷⁶ The HRUFASP would be assisted by a European External Action Service (EEAS), which would operate in cooperation with the diplomatic services of the Member States.⁷⁷ It has been pointed out that the EEAS, merging the relevant services of the Council Secretariat, the Commission, and the Commission Delegations could turn out to be the most important innovation, creating over time ‘a unified bureaucratic ambience’.⁷⁸ The HRUFASP would thus replace both the current HRCFSP and the Commissioner for external relations, as the UMFA was intended to do. The hope would seem to be that he or she would thereby form a bridge between the CFSP and the other elements of the Union’s foreign policy. Would the bridge rest on solid pillars? Quite a lot of commentators have written on the UMFA. These comments remain largely applicable to the HRUFASP. Some commentators believed that the UMFA would indeed have performed its bridging function, thereby contributing to a more ‘coherent and efficient’ foreign policy;⁷⁹ while others believed that the UMFA’s functions were characterized by a number of internal dualities that would have been liable to create tensions, rendering it impossible for the UMFA to fulfil his or her functions. Most criticisms centred on doubts about the workability of the office, and about its impact on the institutional balance between the Council and the Commission, or between the legislature and the executive. What some authors regarded as the main genius of the proposal for a UMFA, viz forming part of ⁷³ New Art 34(2), para 3 EU (cf Art III-305(2), para 3 TC). ⁷⁴ New Art 38, para 1 EU (cf Art III-307(1) TC). ⁷⁵ Art 221(2) TFEU (cf Art III-328(2) TC). ⁷⁶ New Art 30(2) EU (cf Art III-299(2) TC) ⁷⁷ New Art 27(3) EU (cf Art III-296(3) TC). Th is EEAS apparently originates from an amendment proposed by the Convention’s parliamentary delegations during the drafting sessions held in early July 2003: W van Gerven, The European Union: A Polity of States and Peoples (2005) 258, fn 8. ⁷⁸ S Nuttall, ‘Coherence and Consistency’ in C Hill and M Smith (eds), International Relations and the European Union (2005) 109. ⁷⁹ eg K Lenaerts, JM Binon, and P Van Nuffel, ‘L’Union européenne en quête d’une Constitution: bilan des travaux de la Convention sur l’avenir de l’Europe’ (2003) 11 Journal des tribunaux droit européen 294; P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 420; D Thym, ‘Reforming Europe’s Common Foreign and Security Policy’ (2004) 10 Eur LJ 18 et seq.

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both the Council and of the Commission, others saw as an inherently unviable option. Doubts about the workability of the ‘double hat’ option had existed since quite early in the Convention debates. Peter Hain, representative of the UK government, asked during a debate on foreign policy in the Convention on 11 July 2002: ‘To which body would that individual answer and be accountable: the Council or the Commission? Who is the master? That is the question. Can you have two bosses?’⁸⁰ This criticism seemed to echo the concerns of some academic commentators. It has been argued that it would be very difficult for one person to prepare and execute policies of the Council, while at the same time remaining true to his or her role as a Vice-President of the collegiate body that is the Commission. What would happen if a dispute arises between the Council and the Commission over whether the Community is exclusively competent in the areas that form the subject-matter of an international agreement to be concluded, or what the correct legal Treaty basis is for the conclusion of an agreement—questions that, experience suggests, are bound to arise in practice?⁸¹ Griller concluded that the double hat solution would ‘merely produce “fair weather consistency” ’.⁸² Doubts are also possible about the democratic character of the HRUFASP/ UMFA. Griller argued that the double hat solution would imply ‘an unprecedented fusion of policy determination and policy execution’ and that the UMFA’s accountability would have been blurred due to his or her elusive institutional position.⁸³ Instead of having two masters, the HRUFASP might end up having none. The Draft Constitution, however, already contained one possibility of holding the UMFA to account that would be applicable to the HRUFASP: the European Council would be able, by QMV and with the agreement of the President of the Commission, to end the HRUFASP’s term of office.⁸⁴ The Constitution added a second possibility, retained in the Treaty of Lisbon. The power of the President of the Commission to request resignation of a member of the Commission would also apply to the HRUFASP.⁸⁵ This appears to be a step in the direction of more accountability: the HRUFASP could now be held accountable by both ⁸⁰ P Norman, The Accidental Constitution: The Story of the European Convention (2003) 141. ⁸¹ cf AA Dashwood, ‘The Draft EU Constitution—First Impressions’ (2002–2003) 5 CYELS 395–417. ⁸² S Griller, ‘External Relations’ in B De Witte (ed.), Ten Reflections on the Constitutional Treaty for Europe (2003) 147; cf M Cremona, ‘The Union as a Global Actor: Roles, Models and Identity’ (2004) 41 CML Rev 570; P Koutrakos, EU International Relations Law (2006) 489–490. ⁸³ S Griller, ‘External Relations’ in B De Witte (ed.), Ten Reflections on the Constitutional Treaty for Europe (2003) 147; B De Witte, ‘The Constitutional Law of External Relations’ in I Pernice and M Poiares Madouro (eds), A Constitution for the European Union: First Comments on the 2003Draft of the European Convention (2003) 103. Doubts are currently also possible regarding the democratic accountability of the HRCFSP: S Peers, ‘Common Foreign and Security Policy’ (2001) 20 YEL 536. ⁸⁴ New Art 18(1) EU (cf Art I-28(1) TC and Art I-27(1) DTC). ⁸⁵ New Art 17(6) in fine EU (cf Art I-27(3) in fine TC). This would happen ‘in accordance with the procedure set out in [New Art 18(1) EU]’, which implies the involvement of the European Council.

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his ‘masters’, though it is unclear how this would work in practice. The possibility also remains for the European Parliament to pass a censure motion, which, if successful, would cause the members of the Commission to resign as a body, and the HRUFASP to resign from the duties that he or she carried out in the Commission.⁸⁶ The Commission described the UMFA as ‘one of the draft Constitution’s major achievements’.⁸⁷ A cynic might say that this is hardly surprising, considering the extra powers in external affairs the Commission might have acquired through the UMFA, and may acquire through the HRUFASP. This does, however, not appear prima facie from the text of the Treaty of Lisbon. Indeed, one could even get the impression that the role of the Commission in foreign policy would actually decrease. For example, while under current Article 22 EU, any Member State or the Commission may refer any question to the Council relating to the common foreign and security policy, New Article 30 EU grants this right to any Member State, the High Representative of the Union for Foreign Affairs and Security Policy, or the High Representative with the Commission’s support. What until today are the ‘Commission delegations’ to third countries would upon ratification of the Treaty of Lisbon be called ‘Union delegations’.⁸⁸ Of course, the Commission is charged in New Article 17(1) EU⁸⁹ with ensuring the Union’s external representation, but this is ‘with the exception of the common foreign and security policy, and other cases provided for in the Treaties’. This prime facie analysis would, however, commit the error of ignoring the important role the HRUFASP would play in the entire field of foreign policy, including the CFSP, and the fact that the HRUFASP would also be one of the Commission’s Vice-Presidents. A de facto enlargement of the power of the Commission in EU external relations, implying a degree of communitarization of the entire field of foreign policy, would therefore be a real possibility.⁹⁰ Craig argued that the fact that the UMFA would be responsible for all the competences of the current Commissioner for external relations, while at the same time occupying a central place within the Council and the European Council, would most likely increase, rather than decrease, the Commission’s overall influence in this area, notwithstanding the fact that formal decision-making powers remain with the European ⁸⁶ New Art 17(8) EU (cf Art I-26(8) TC). ⁸⁷ Communication from the Commission. A Constitution for the Union. Opinion of the Commission, pursuant to Article 48 of the Treaty on European Union, on the Conference of representatives of the Member States’ governments convened to revise the Treaties, Brussels, 17 September 2003, COM(2003)548, para 18. ⁸⁸ cf eg New Art 221 EU (cf Art III-328 TC). ⁸⁹ cf Art I-26 TC. ⁹⁰ cf similarly regarding the Constitution: M Cremona, ‘The Draft Constitutional Treaty: External Relations and External Action’ (2003) 40 CML Rev 1355; P Craig, ‘The Constitutional Treaty: Legislative and Executive Power in the Emerging Constitutional Order’, EUI Working Paper LAW No 2004/7 (2004) 34–35. Contra: W Wessels, ‘A “Saut constitutionnel” out of an intergovernmental trap? The provisions of the Constitutional Treaty for the Common Foreign, Security and Defence Policy’ (2004) 19.

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Council and the Council.⁹¹ The same could be observed regarding the role of the HRUFASP. The proposal for a double-hatted HRUFASP suffers somewhat from the dichotomous debate between those who see communitarization as the right way forward, and those who oppose this option.⁹² The result of a compromise between these two diametrically opposed positions is a hybrid creature between intergovernmentalism and ‘communitarization’. It seems ironic that in order to remedy the Union’s ‘troubled personality’⁹³ on the external front, the Convention should have created a personage suffering somewhat from multiple personality disorder, who would, in his or her capacity as a Commission Vice-President, have to support his or her own decisions, taken in his or her capacity as HRUFASP,⁹⁴ but who would be likely to take opposite standpoints in turf wars between the Council and the Commission, depending on whether he or she would be wearing his or her ‘Commission hat’ or his or her ‘Council hat’. It could, however, be argued that a phrase was added in the final version of the Constitution that might help overcome some of these difficulties. In its post-Lisbon incarnation, it qualifies the HRUFASP’s duty of collegiality as Commission Vice-President by adding the phrase ‘to the extent that this is consistent with paragraphs 2 and 3’ of New Article 18(4) EU.⁹⁵ This phrase should probably be taken to imply that, when the HRUFASP is chairing the Foreign Affairs Council, he will not be bound by the Commission’s opinion on matters such as whether a particular proposal falls within the confines of the CFSP or of development cooperation policy. This might diminish the possibility of internal discrepancies within the HRUFASP’s task.⁹⁶ The dire predictions of some commentators may prove wrong.⁹⁷ A perhaps hopeful sign is that, as Hillion points out, the Commission and the Council seem able to work together quite well on certain aspects of the Union’s foreign policy, more specifically with regard to the ENP.⁹⁸ It could be argued that this bodes well for the possibility of a workable HRUFASP.⁹⁹ While closer cooperation between the Commission and the present HRCFSP could potentially be achieved without Treaty amendment, the fully double-hatted ⁹¹ P Craig, ‘The Constitutional Treaty: Legislative and Executive Power in the Emerging Constitutional Order’, EUI Working Paper LAW No 2004/7 (2004) 34–35. ⁹² ch 6.4. ⁹³ N Neuwahl, ‘A Partner with a Troubled Personality: EU Treaty-Making in Matters of CFSP and JHA after Amsterdam’ (1998) 3 Eur Foreign Affairs Rev 177–196. ⁹⁴ New Art 30(1) EU (cf Art III-299(1) TC). ⁹⁵ cf Art I-28(4) TC. ⁹⁶ cf similarly regarding the UMFA: AA Dashwood and A Johnston, ‘The Institutions of the Enlarged EU under the regime of the Constitutional Treaty’ (2004) 41 CML Rev 1504. ⁹⁷ cf similarly regarding the UMFA: J Kokott and A Rüth, ‘The European Convention and its Draft Treaty Establishing a Constitution for Europe: Appropriate Answers to the Laeken Questions?’ (2003) 40 CML Rev 1327; cf AA Dashwood and A Johnston, ‘The Institutions of the Enlarged EU under the regime of the Constitutional Treaty’ (2004) 41 CML Rev 1504. ⁹⁸ For a description: C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 212–215. ⁹⁹ cf ibid, 240–241, on the UMFA.

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conception of the HRUFASP would not be possible. An inter-institutional Agreement could be envisaged allowing the HRCFSP to attend Commission meetings where issues of foreign policy are being discussed, while it is already the case that the External Relations Commissioner attends the External Relations Council. However, without Treaty-amendment, it would be impossible to create a functionary who would be a member of the Commission while at the same time being a Council official. Since it is impossible to predict when a new Treatyamendment would be attainable, should the Treaty of Lisbon never enter into force it would make sense in those circumstances to attempt to improve the cooperation between the Council and Commission foreign policy administrations by the means here suggested. It would also be possible to establish an external action service, by an inter-institutional agreement, combined with an internal agreement among the Member States.

6.4 By way of Conclusion: No Salvation without Communitarization? The dichotomy between first and second pillar external relations is characteristic of the ‘structurally differentiated’¹⁰⁰ EU constitution. It is based on the disjunction between two core aspects of foreign policy: external economic relations sensu lato, such as external trade, development cooperation, and emergency aid, falling within the Community, and what is commonly called ‘high politics’ (diplomatic activity and security and defence issues), falling within the CFSP.¹⁰¹ It is hardly a novelty to question the assumption that these two aspects of foreign policy can be separated.¹⁰² ‘The once popular distinction between “high” and “low” politics is no longer of much help’, because ‘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 [ . . . ]’.¹⁰³ Positions in international trade relations form part of a broader policy. The USA’s support for China’s accession to the WTO is one example and the same ¹⁰⁰ cf AA Dashwood, ‘The Relationship Between the Member States and the European Union / European Community’ (2004) 41 CML Rev 364, who points out that differentiation is one of the essential principles defining the relationship between the Member States and the EU/EC. ¹⁰¹ AM Arnull, AA Dashwood, M Dougan, M Ross, E Spaventa, and D Wyatt, Wyatt and Dashwood’s European Union Law (2006) 17–18, para 1-016. ¹⁰² cf eg Lord Carrington, ‘European Political Co-Operation: America Should Welcome It’ (1981–1982) 58 Intl Affairs 3: ‘Over the years the realisation has grown that economic policy and foreign policy are siamese twins’. Cf JHH Weiler, ‘Neither Unity nor Three Pillars—The Trinity Structure of the Treaty on European Union’ in J Monar, W Ungerer, and W Wessels (eds), The Maastricht Treaty on European Union: Legal Complexity and Political Dynamic (1993) 55. ¹⁰³ C Hill, The Changing Politics of Foreign Policy (2003) 4.

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was true for the EU’s approval of China’s accession.¹⁰⁴ The ongoing negotiations on a trade and cooperation agreement with Iran are intertwined with the EU’s demands towards Iran on nuclear non-proliferation, human rights, the fight against terrorism, and the Middle East Peace Process.¹⁰⁵ The finalized negotiations for an Association Agreement with Syria include essential provisions on respect for democratic principles and fundamental rights, cooperation to counter the proliferation of WMD and their means of delivery, and anti-terrorism. The fight against terrorism is another example: it will now be standard EU practice to insist that countries wanting to enter into international agreements with the EU/EC commit themselves to combating terrorism.¹⁰⁶ Koutrakos concludes that ‘[t]he substantive interactions between Community policies and the CFSP . . . put forward a rather self-evident fact: trade and foreign policy can neither be pursued nor implemented in isolation. They are intrinsically linked and their effectiveness relies, in practical terms, to a great extent upon their consistency and coherence.’¹⁰⁷ This challenges the conceptual basis on which the constitutional separation between the Community and the CFSP rests, and hence a fundamental aspect of the EU constitutional structure. The origin of this disjunction takes us back to the foundation of European integration in post-World War II Europe, the raison d’ être of which was the prevention of war between the Member States. Especially after the failure of the European Defence Community (EDC),¹⁰⁸ the method chosen to reach that goal was that of market-integration and free trade.¹⁰⁹ European integration in the 1950s reversed Aristide Briand’s 1920’s strategy: instead of dealing with ¹⁰⁴ P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 35. On China’s accession to the WTO: P Van den Bossche, The Law and Policy of the World Trade Organization: Text, Cases and Materials (2005) 113–115. Note that the Commission is asking the Court to annul the decision of the Council and the Member States establishing the Community’s and the Member States’ position within the General Council of the WTO on the accession of the Socialist Republic of Viet Nam to the WTO (COM/2005/0659 final-ACC 2006/0215) (but none the less to declare that the effects of the annulled decision are definitive) based on the argument that the Council without justification added Art 133(6) EC to the legal basis (originally Art 133(1) and (5) EC), which necessitated a separate decision of the Representatives of the Governments of the Member States meeting within the Council: Case C-13/07 Commission v Council [2007] OJ C56/22. ¹⁰⁵ On the EU’s relations with Iran: eg Presidency conclusions of the Brussels European Council, 16–17 June 2005, paras 55–56; E Denza, ‘Non-proliferation of Nuclear Weapons: The European Union and Iran’ (2005) 10 Eur Foreign Affairs Rev 289–311. ¹⁰⁶ See eg Council and Commission Action Plan implementing the Hague Programme on strengthening freedom, security and justice in the European Union [2005] OJ C198/1, para 3.2(l). ¹⁰⁷ P Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law (2001) 44 et passim; P Koutrakos, EU International Relations Law (2006) 415–452. ¹⁰⁸ See DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 11–28. ¹⁰⁹ cf eg C Barnard, The Substantive Law of the EU: The Four Freedoms (2nd edn, Oxford: Oxford University Press, 2007) 6 and 23; FG Jacobs, ‘The Evolution of the European Legal Order’ (2004) 41 CML Rev 304.

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economics through politics, it chose to deal with a political problem—the security of Europe—through economic means.¹¹⁰ European integration became a functional enterprise,¹¹¹ or it was, at least from an internal perspective, perceived as such.¹¹² The Community method could be described as a successful example of politics by dissociation: political problems are solved not directly by confronting them as such, but indirectly, by dealing with them as technical ones.¹¹³ However, political problems could not be made to go away by not confronting them directly. The political character of the Community’s policies, in particular its external aspects, moved the Member States to attach political forums to its technical core, first through the European Political Cooperation (EPC),¹¹⁴ and after Maastricht through the CFSP.¹¹⁵ The Community’s success, however, was based on its technicality, and the political aspects of foreign policy were (as ¹¹⁰ cf M Smith, Europe’s Foreign and Security Policy: The Institutionalization of Cooperation (2004) 7; C Hill and M Smith, ‘International Relations and the European Union: Themes and Issues’ in C Hill and M Smith (eds), International Relations and the European Union (2005) 8. ¹¹¹ M Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (2002) 347–348. Cf Declaration on the Future of the European Union adopted by the European Council at Laeken, 14–15 December 2001: ‘In the beginning, [European integration] was more of an economic and technical collaboration. . . . Over the last ten years, construction of a political union has begun and cooperation been established on social policy, employment, asylum, immigration, police, justice, foreign policy and a common security and defence policy’ (emphases added). A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (2002) 111 questions the assumption that an important part of positive integration such as the completion of the common market can be achieved in a non-political way, by following a logic of rationality and efficiency alone; cf K Nicolaïdis, ‘ “We, the Peoples of Europe . . .”‘ (2004) 83 Foreign Affairs 97–98. ¹¹² The idea of achieving peace through trade liberalization is not novel. Kant argued that peace among nations could be achieved by relying on their ‘mutual self-interest’. Allowing free trade among nations and creating commercial links between citizens of different nations will promote peace, ‘for the spirit of commerce sooner or later takes hold of every people, and it cannot exist side by side with war. [ . . . ] Thus states find themselves compelled to promote the noble cause of peace, though not exactly from motives of morality’: I Kant, ‘Perpetual Peace. A Philosophical Sketch’ in HS Reiss (ed.) Kant: Political Writings (2003) 114. These ideas can also be found in much of modern international law and institutions, not in the least in the GATT/WTO. Cf S Marks, The Riddle of All Constitutions: International Law, Democracy and the Critique of Ideology (2000) 35. ¹¹³ In the words of John Cleese’s legendary character Basil Fawlty: ‘All in the Market together, old differences forgotten, and no need at all to mention the war’ (The quote can be found at J Cleese and C Booth, The Complete Fawlty Towers (London: Methuen, 2000) 155). ¹¹⁴ On the EPC: M Smith, Europe’s Foreign and Security Policy: The Institutionalization of Cooperation (2004) 63–175. ¹¹⁵ For an historical overview: eg RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 1–10; P Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law (2001) 7–26; E Denza, The Intergovernmental Pillars of the European Union (2002) 33–61; W Wallace, ‘Foreign and Security Policy. The Painful Path from Shadow to Substance’ in H Wallace, W Wallace, and MA Pollack (eds), Policy-Making in the European Union (2005) 429–456; R Gosalbo Bono, ‘Some Reflections on the CFSP Legal Order’ (2006) 34 CML Rev 338–353. Specifically with regard to defence integration: DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 6–34; M Trybus, European Union Law and Defence Integration (2005) 9–120. For a history of Europe and European integration in the 20th century, see eg H James, Europe Reborn : A History, 1914–2000 (2003).

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‘Fremdkörper’,¹¹⁶ one could say, belabouring the metaphor a bit) not integrated in the paradigmatic Community.¹¹⁷ This forced the Community to re-invent itself as a divided subject: the Union. By its very nature, the Community is thus not well-equipped to confront political problems directly and openly. This appears to be confirmed in practice: the Community can act decisively internationally as long as problems can be dealt with technically. Difficulties arise as soon as the Community needs to take swift and important ‘political’ decisions;¹¹⁸ the more ‘politicized’ the area becomes, the less adapted to taking the necessary decisions the Community constitutional machinery seems to be. The ‘technocratic’ approach that seems to work so well in the Community’s ‘technical’ core business does not work nearly as well outside that core, and prompts questions with regard to transparency and accountability.¹¹⁹ The dichotomous debate between the supporters of the supranational ‘Community method’ and the supporters of the intergovernmental CFSP method¹²⁰ not only misrepresents the actual legal and political situation,¹²¹ but also hampers possible reforms of the Union’s constitutional structure for external relations.¹²² No matter how much the ‘ideal type Community method’ differs from the ‘ideal type CFSP method’, the differences in their practical operation are often not as fundamental as one might think and can be situated on a spectrum.¹²³ ¹¹⁶ ‘Foreign bodies’, a term Freud used to describe (supposed?) external causes of trauma: see P Verhaeghe, Over normaliteit en andere afwijkingen: Handboek klinische psychodiagnostiek (2005) 152. ¹¹⁷ See Advocate General Mazák in his Opinion in Case C-440/05 Commission v Council [2006] OJ C22/10, point 46, who refers to the distinction between the first and the second pillar as ‘the line between what is essentially the Community method, characterising the “hard core” of European integration under the European Communities, and the more “intergovernmental” policies and forms of cooperation established by the EU Treaty’. Cf K Lenaerts and D Gerard, ‘The Structure of the Union According to the Constitution for Europe: The emperor is getting dressed’ (2004) 29 ELR 300: ‘the core business of the European polity is formed by the EC’. ¹¹⁸ cf C Hill and M Smith, ‘International Relations and the European Union: Themes and Issues’ in C Hill and M Smith (eds), International Relations and the European Union (2005) 12. ¹¹⁹ cf S Woolcock and M Hodges, ‘EU Policy in the Uruguay Round’ in H Wallace and W Wallace (eds), Policy-Making in the European Union (1996) 322: ‘The EC finds it difficult to deal with issues once they have become politicized’. ¹²⁰ cf P Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law (2001) 47–48, who refers in this respect to an ‘impossible dilemma’; see also his remarks at ibid, 162, fn 113; S Nuttall, ‘Coherence and Consistency’ in C Hill and M Smith (eds), International Relations and the European Union (2005) 92, who suggests that subjacent to the problem of consistency and the debate between supranationalist and intergovernmentalist approaches ‘was a bureaucratic power struggle: which set of civil servants was to gain the upper hand?’; for a short history of the concept of consistency in EU foreign policy: ibid, 94–96. ¹²¹ chs 6 and 8. ¹²² cf K Nicolaïdis, ‘ “We, the Peoples of Europe . . .” ’ (2004) 83 Foreign Affairs 99, who makes a similar point with regard to the EU as a whole: ‘Debates about the EU have often been perverted by the tyranny of oppositions . . . ’. ¹²³ cf JHH Weiler, ‘Neither Unity nor Three Pillars—The Trinity Structure of the Treaty on European Union’ in J Monar, W Ungerer, and W Wessels (eds), The Maastricht Treaty on European Union: Legal Complexity and Political Dynamic (1993) 49–62.

Table 1: Contrast between Community method and CFSP CFSP

Specific and detailed attribution of competences, with few exclusive Community competences and many non-exclusive competences. In the latter cases, the Member States are allowed to exercise their own competences in the relevant field to different degrees.b Legal instruments with different degrees of binding force, and with different degrees of legislative character. Except for regulations, they need to be implemented by the Member States.c

General attribution of CFSP competence, which constantly needs to be complemented by Member State competences.a

Instruments with different degrees of legal force, mostly non-legislative, but some with different degrees of legislative character. If present, the legislative character of the legal instruments is less pronounced than in the Community. In general, the CFSP legal instruments are less detailed than their Community counterparts. All CFSP legal instruments require substantial Member State action for their implementation. Many CFSP legal instruments require Community action for their implementation.d

Exclusive right of initiative for the Commission, but in practice the European No exclusive right of initiative for the Commission: Presidency, Member Council, the Presidency and the Member States have a significant impact on States, and Commission can and do formulate proposals.e the agenda-setting and on the proposals.f COREPER is the central preparatory organ within the Council.g Both COREPER and the PSC are the central preparatory organs within the Council, but in different degrees.h QMV is an important decision-making procedure within the Council, while QMV is only a marginal decision-making procedure within the Council, unanimity still exists in some matters. In practice, a majority of proposals are and unanimity is the rule. In practice, the bulk of proposals are adopted by adopted by consensus.j consensus.i Measures are implemented by the Commission and the Member States, who Measures are mostly implemented by the Member States, with important are involved to different degrees.k roles for the Presidency, the HRCFSP, and the PSC. The Commission also plays a significant role in the implementation of some measures.l Continued

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Community

223

224

Community

CFSP

European Parliament and Council are increasingly equal partners in the legislative process.m

The Council is the main player, and the European Parliament formally only has a very marginal role. However, through the budgetary procedure and through passing nonbinding resolutions, the European Parliament often has a substantial impact on the CFSP.n

The Court has a crucial role in the development of Community external relations through its case-law and its advisory opinions.o

a

b c d ch 4.2. chs 1–2. ch 3.1, 3.2., and 3.4. ch 4.3.2 and 4.3.4. f g h ch 4.3.3. ch 3.2.1, 3.3.1, and 3.3.2. ch 3.2.2. ch 4.3.3.3. i j k l ch 4.3.3.3. ch 3.2.2 and 3.3.2–3.3.6. ch 3.4. ch 4.3.4. m n o ch 3.2.2 and 3.3.2–3.3.6. chs 4.3.3.3 and 5.2.1. ch 3.5. p ch 5.3.2.1. e

The Court is excluded from the second pillar, but limited possibilities for judicial control exist in Article 47 EU, with regard to damages, with regard to a preliminary ruling on whether a measure adopted under the second pillar should properly have been adopted under the first pillar, and in the possibility of indirect review.p

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Table 1: (Continued)

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Indeed, even with regard to the Community method, talk of a model or standard method of decision-making gives a false impression of uniformity,¹²⁴ as should be evident from comparing the constitutional structure for Community external relations with that of its internal policies.¹²⁵ The Table on pages 223 to 224 shows some of the elements of this spectrum, as they emerged from the analysis in the previous chapters:¹²⁶ In order to escape the dichotomy between intergovernmental and supranational methods of policy-making, Wallace proposes a classification of the EU policy process in five types:¹²⁷ • • • • •

the traditional Community method; the EU regulatory mode; the EU distributional mode; policy coordination; and intensive transgovernmentalism.

Within this classification, the CFSP falls under the last category. As Wallace rightly points out, the usual term of ‘intergovernmentalism’ does not accurately reflect the CFSP method of policy-making, as it resonates too much of cooperation between governments in many other international organizations, in which the intensity of cooperation is more limited.¹²⁸ The traditional Community method is only one of the five possible EU policy processes. Unlike some in the early days had hoped or predicted, this method has not become the dominant pattern.¹²⁹ It does not, therefore, sit very comfortably on the paradigmatic throne where many debates on the Union’s foreign policy in particular, and on the Union’s constitutional structure in general,¹³⁰ still seem to place it. Keukeleire’s analysis suggests that the Community method in itself is quite well suited for furthering the Union’s interest with regard to long-term international developments and regular bilateral and multilateral interactions with third countries and international organizations. It is, however, much less well-adapted ¹²⁴ cf AA Dashwood, ‘Issues of Decision-making in the European Union after Nice’ in AM Arnull and D Wincott (eds), Accountability and Legitimacy in the European Union (2002) 22. ¹²⁵ chs 1–3. ¹²⁶ Similarly: S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 340–341. ¹²⁷ H Wallace, ‘An Institutional Anatomy and Five Policy Modes’ in H Wallace, W Wallace, and MA Pollack (eds), Policy-Making in the European Union (2005) 49–90. ¹²⁸ Ibid, 87–88. ¹²⁹ cf W Wallace, ‘Foreign and Security Policy. The Painful Path from Shadow to Substance’ in H Wallace, W Wallace, and MA Pollack (eds), Policy-Making in the European Union (2005) 486– 487, who argues that from the early 1980s, regulation has become the dominant decision-method. ¹³⁰ See eg the ‘regulatory model’, which tends to focus exclusively on Community integration: A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (2002) 110; cf R Gosalbo Bono, ‘Some Reflections on the CFSP Legal Order’ (2006) 34 CML Rev 376, who notes that the Community legal order traditionally ‘has been considered as the framework point of reference within European law’.

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to adequate and swift reactions to international crises.¹³¹ The present situation of the CFSP is one of a half-hearted introduction of some Community elements into the system, and not necessarily those most adapted to the matter at hand.¹³² This has led to the formalization of decision-making structures without always adding either the necessary possibilities for flexibility or the necessary capacities for policy preparation.¹³³ One of the hallmarks of the Community method is the role of the Commission as an organ with great resources and expertise in policy preparation, and as the organ with sufficient authority to formulate proposals and to take initiatives for the overall good of the Union.¹³⁴ It would be worth introducing such an organ in the CFSP, though at this point of the development of the Union, it would be inadvisable to provide this organ with a monopoly on taking initiatives. Akin to the Commission’s role in the first pillar, the organ in question could be the centre of policy preparation and formulation of proposals for the CFSP. By creating the HRUFASP, the drafters of the Treaty of Lisbon have attempted to come up with an organ capable of formulating proposals and taking initiatives for the overall good of the Union. However, it is unclear whether the HRUFASP would be able to play the important role of being the centre of CFSP decision-making.¹³⁵ It would seem that with the HRUFASP, the drafters of the Treaty of Lisbon have followed a well-travelled path, and have introduced certain communautaire elements into the CFSP, without clearly considering the consequences.¹³⁶ The equation of integration with communitarization—a result of the Community’s place as the paradigmatic core of the Union—seriously compromises the necessary debate on how to forge a foreign policy whereby both the Member States and the Union are left enough space for semi-autonomous international action. It seems to be a textbook example of ‘dichotomous reasoning’: alternative social arrangements are presented in terms of stark oppositions, in which the present situation and its polar opposite appear as the only options.¹³⁷ It rules out moderate intermediate possibilities, and makes change seem unfeasible, leading to a confirmation of the existing situation. The apparent impossibility of reconsidering the Court of Justice’s role in the CFSP can be regarded as a result of this approach. The debate on the Court’s jurisdiction is seen as so inherently linked to the debate on the extension of the Community method to the CFSP, ¹³¹ S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 451 and 453. ¹³² See ibid, 348–351. ¹³³ ch 4. ¹³⁴ ch 3. ¹³⁵ cf P Eeckhout, ‘General Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 288–289: ‘It is wholly inevitable that a central administration with policy input needs to define the common interest, and operate from that platform, in order to be effective’, arguing that the UMFA would have been able to fulfi l its role effectively. ¹³⁶ ch 6.3. ¹³⁷ As described by eg S Marks, The Riddle of All Constitutions: International Law, Democracy and the Critique of Ideology (2000) 22.

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that the former can often hardly be imagined without the latter and that more moderate possibilities, for example of a limited judicial review or of a procedural review, are left unconsidered.¹³⁸ While it is true that they are more present in the first than in the second pillar,¹³⁹ it does not follow that the only way to attain greater accountability and strengthen the rule of law over the whole field of foreign policy is to transfer it entirely to the Community. ¹³⁸ ch 5.3. ¹³⁹ Though even in the first pillar rule-making process, transparency, accountability, and compliance with the rule of law are clearly not always guaranteed: see eg the Opinion of Sharpston AG in Case C-345/06 Heinrich [2006] OJ C281/19.

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PA RT T H R E E M A NAGI NG T H E V E RT IC A L A N D HOR I ZON TA L A X E S

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7 Managing the Vertical Axis 7.1 Introduction This chapter analyses two constitutional concepts of vital importance for the management of the vertical division of competences: the technique of mixity and the vertical aspect of the principle of consistency. In focusing on a technique that has developed specifically in the field of external relations, and on a principle which, in practice, has been found to have a more significant part to play in Union foreign policy than in its internal policies, the flexibility with which the Union legal order addresses the specific needs of external relations is brought to the fore. The possibility for enhanced cooperation can also be situated in the larger framework of possibilities for differentiation and flexibility within the EU’s constitutional structure, which in turn can be seen as a form of applied subsidiarity.¹ Allowing a group of Member States to cooperate more closely on certain matters within the framework of the Treaty, while allowing other Member States to stay outside the scheme is a means of avoiding thorny questions regarding the finality of integration.² It is difficult to speak with confidence on the possibilities for enhanced cooperation due to the lack of practice, and a full discussion of enhanced cooperation has therefore been omitted from this study. However, there might seem to be more scope for it under the second pillar with its more onerous procedures, especially in the ESDP, than under the first pillar.

7.2 Mixity 7.2.1 Introduction One of the most important consequences of competence in a certain area of external relations belonging both to the Community and to the Member States is ¹ F Tuytschaever, Diff erentiation in European Union Law (1999) 240–242; see further D Thym, Ungleichzeitigkeit und europäisches Verfassungsrecht (2004); H Bribosia, ‘Les Coopérations Renforcées: Quel Modèle D’intégration Différenciée Pour L’Union Européenne?’, PhD Dissertation (2007). ² F Tuytschaever, Diff erentiation in European Union Law (1999) 220.

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that it often results in mixed external action. Many of the constitutional turf wars within the Community are solved by resorting to mixity, making it arguably into a more prominent feature of the Community’s constitutional structure than exclusivity. There has been an extraordinary amount of academic writing on this ‘hallmark’³ or ‘defining constitutional dimension’⁴ of the Community’s external legal relations. Providing a complete overview of the legal issues surrounding mixity is beyond the scope of this study.⁵ What follows is an attempt to provide an overview of the legal framework of mixed Community-Member State action, focusing on what is most important for bringing out the specificity of mixity as a technique developed by the Union to deal with its external relations.

7.2.2 Mixed agreements A mixed agreement could be defined as an agreement that includes among its parties the Community and all or some of the Member States, and which falls partly within the competence of the Community and partly within the competence of the Member States.⁶ The problems and complexities surrounding mixed agreements are therefore situated on the tri-frontier between national law, Community law, and international law.⁷ Mixity was thoroughly discussed for the first time by the Court in Opinion 1/76 Draft Agreement establishing a European laying-up fund for inland waterway vessels.⁸ The Court pointed out that the participation of the six Member States, though justified,⁹ had produced certain results that went beyond the objective of their participation; results that are incompatible with ‘the requirements implied by the very concepts of the Community and its common policy’.¹⁰ More particularly, the Court pointed out that the part played by the Community institutions in the bodies and organs set up by the agreements was ‘extremely limited’, and that ³ P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 190. ⁴ JHH Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ and Other Essays on European Integration (1999) 130. ⁵ For an excellent account: J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001). ⁶ Ibid, 7; for an analysis of the Partnership and Cooperation Agreements between the Community and Russia and the Ukraine as constituting a new model of mixed agreements: C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 13–98. ⁷ P Allott, ‘Adherence To and Withdrawal From Mixed Agreements’ in D O’Keeffe and HG Schermers (eds), Mixed Agreements (1983) 97. ⁸ The first mixed agreement had, however, preceded this Opinion by 15 years: Agreement establishing an association between the European Economic Community and Greece [1963] OJ 294, OJ Spec Ed Series II Volume I(1), 3; for an analysis: J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001) 10–14. ⁹ [1977] ECR 741, para 7. ¹⁰ Ibid, para 8.

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all the most important functions were performed by the Member States.¹¹ This called into question the competences of the Community institutions, and altered the relationship between the Member States in a manner inconsistent with the EC Treaty.¹² The agreement constituted a surrender of the independence of action of the Community in its external relations, as well as a change in the internal constitution of the Community, more specifically by altering essential elements in the Community structure with respect to the prerogatives of the institutions and the respective positions of the Member States.¹³ The Court was also concerned that the arrangements with regard to the agreement would become a model for future arrangements with regard to other matters. Such an evolution, the Court argued, would progressively and irreversibly undo the work of the Community.¹⁴ The Court had thus spotted that the potential danger with mixed agreements lay in their tendency to tilt the balance of power to the advantage of the Member States as traditional subjects of international law, and to the disadvantage of the Community.¹⁵ Timmermans has suggested that Opinion 1/76 should be read as confirming that, when a proposed international agreement comes entirely within the shared/concurrent competences¹⁶ of the Community, specific reasons are needed to justify mixed external action.¹⁷ This seems to be a plausible reading. The implication is, for example, that it is hard to find a legal justification for concluding a mixed agreement when the international agreement in question comes within the shared/concurrent external competence of the Community and the Community decides to exercise its competence. It could even be argued that such an unnecessary mixed agreement would constitute an infringement of Article 10 EC.¹⁸ The Community may, of course, also decide not to exercise its competence. The Community and the Member States will normally jointly enter into an agreement that covers areas for which both are competent. This can, however, not always be achieved. Some international agreements do not allow international organizations to become a party. If that is the case, the Member States will conclude the agreement on behalf of the Community. This is, for example, what happened with regard to ILO Convention No 170,¹⁹ at issue in Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work.²⁰ ¹¹ Ibid, para 9. ¹² Ibid, para 10. ¹³ Ibid, para 12. ¹⁴ Ibid, para 14. ¹⁵ cf M Cremona, ‘The Doctrine of Exclusivity and the Position of Mixed Agreements in the External Relations of the European Community’ (1982) 2 OJLS 414, who also notes that this explains the attraction of mixed agreements for the Member States. ¹⁶ ch 2.3.1. ¹⁷ CWA Timmermans, ‘Division of External Powers Between Community and Member States in the Field of Harmonization of National Law—A Case Study’ in A Bleckmann, A Barav, JHJ Bourgeois, and CWA Timmermans (eds), Division of Powers Between the European Communities and Their Member States in the Field of External Relations (1981) 20. ¹⁸ cf P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 194–195. ¹⁹ Convention concerning Safety in the use of Chemicals at Work, No C170, 25 June 1990. ²⁰ [1993] ECR I-1061; see in particular para 5.

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In Opinion 1/78 International Agreement on Natural Rubber, the Court concluded that if an international agreement is to be financed by the Member States, this implies their participation in the decision-making machinery or, at least, their agreement with regard to the arrangements for financing envisaged and consequently their participation in the agreement together with the Community.²¹ Though mixed agreements will almost certainly be found in the situations just described, they are not confined to them. Member States or third parties might for a variety of reasons prefer both the Community and the Member States to become a party to an international agreement.²² However, mixed external action is almost invariably the outcome of internal power struggles within the Community, and virtually never the result of a specific demand from nonCommunity contracting partners.²³ Moreover, mixed agreements could be avoided on many occasions, should the Council be willing to exercise fully the Community’s concurrent competences in external matters. This is, however, not the case in many instances. One of the main reasons for this reluctant attitude is that the Member States strive to be present on the international scene as partners to international agreements ‘in order to remain visible and identifiable actors on the international scene’,²⁴ or wish to retain their veto power with regard to important international agreements²⁵ through the need for unanimity.²⁶ Their ²¹ [1979] ECR 2871, para 60. Cf, however, Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267, para 21 where the Court held that ‘the fact that the Member States will bear some of [the] expenses [of the WTO] cannot, on any view, of itself justify participation of the Member States in the conclusion of the WTO Agreement’. On whether Opinion 1/78 is consistent with the earlier Opinion 1/75 [Draft Understanding on a Local Cost Standard drawn up under the auspices of the OECD] [1975] ECR 1355, see JHH Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ and Other Essays on European Integration (1999) 173–174; P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 18. On the position of Member States responsible for the external relations of their dependent overseas territories: Opinion 1/78, para 62; cf Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267, paras 17–18. Opinion 1/78 prompted the ‘PROBA 20’ arrangement, which was the first important institutional compromise on mixity. It was adopted by the Council in 1981, and intended to ‘improve the Community’s external image and to strengthen its internal cohesion and solidarity’: ELM Völker and J Steenbergen, Leading Cases and Materials on the External Relations Law of the E.C. (1985) 48–51 (no official publication record); see also P Koutrakos, EU International Relations Law (2006) 161–164; J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001) 82–84; P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 195. ²² cf S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 132–133; K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 893–894, para 21-017. ²³ See already CD Ehlermann, ‘Mixed Agreements. A List of Problems’ in D O’Keeffe and HG Schermers (eds), Mixed Agreements (1983) 4–9. ²⁴ Ibid, 6. ²⁵ eg General Agreement on Trade in Services, 15 April 1994, 1869 UNTS 183; 33 ILM 1167 (1994) within the WTO framework; cf P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 199. ²⁶ cf A Rosas, ‘The European Union and Mixed Agreements’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 202, who points out that the requirement

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lack of clarity as to the precise vertical division of competences makes mixed agreements suitable for enabling the Community to act internationally while keeping the competence situation sufficiently vague so as not to affect openly the Member States external competences. Moreover, too accurate a determination of the respective competences of the Community and the Member States might ‘freeze’ the Community’s competences and hinder its evolving constitutional order.²⁷ Disputes between the Community and the Member States with regard to the vertical division of competences are therefore mostly much more amenable to settlement through a procedural solution than through an attempt to solve the substantive competence question.²⁸ Practice suggests mixity is seen as de rigueur with regard to association agreements under Article 310 EC.²⁹ The Court in the Demirel judgment determined that the latter Article necessarily implies that the Community is competent to enter into commitments with non-Member States in all the fields covered by the EC Treaty.³⁰ It should thus arguably be possible to conclude association agreements as pure Community agreements. Yet, despite this, many association agreements are concluded as mixed agreements without a strict legal need, often on the argument that the agreement in question needs to provide for political dialogue, which would be beyond the Community’s competence. However, such a dialogue could as easily be organized in a framework parallel to the actual association of unanimity does not follow from the mixed character of the external agreement itself, at least from a pure Community law perspective. However, a practice has developed according to which the Community will only adhere to international agreements, especially bilateral ones, after all Member States have become party. ²⁷ cf PJ Kuijper, ‘The Conclusion and Implementation of the Uruguay Round Results by the European Community’ (1995) 6 Eur J Intl L 235; J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001) 73 and 95–100. ²⁸ cf J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001) 157–208, who refers in this context to a ‘mediating strategy’. With regard to the latter concept: M Koskenniemi, ‘Theory: Implications for the Practitioner’ in P Allott et al, Theory and International Law: An Introduction (1991) 27–35, and on the strategy of ‘proceduralization’, quite widespread in modern international law: M Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2005) 148–157. ²⁹ J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001) 3. For an analysis of association agreements as an instrument of external relations: MA Gaudissart, L’association: un mode de coopération privilégié entre la Communauté et les Etats Tiers? Une analyse juridique des accords conclus sur base de l’article 238 du traité C(E)E (le nouvel article 310 CE), PhD Dissertation (2000). For a typology of association agreements: S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 129–132. Not all association agreements have, however, been concluded as mixed agreements: eg the Agreement establishing an Association between the European Economic Community and the Republic of Cyprus—Protocol concerning the definition of the concept of ‘originating products’ and methods of administrative cooperation—Final Act—Joint Declarations—Unilateral Declarations [1973] OJ L133/2, and the Agreement establishing an association between the European Economic Community and Malta—Protocol concerning the definition of the concept of ‘originating products’ and methods of administrative cooperation—Final Act—Joint Declarations—Declarations by the Delegation of Malta [ 1971] OJ L 61/2. ³⁰ Case 12/86 Meryem Demirel v Stadt Schwäbisch Gmünd [1987] ECR 3719, para 9.

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agreement.³¹ Member States could adopt a joint declaration to establish political dialogues with the partners concerned outside the framework of the mixed agreement, as has been done on several occasions in the pre-Maastricht period. Externalizing the political dialogue in this way would possibly imply avoiding recourse to mixed agreements in this situation.³² It has been argued that it is rather anomalous to prefer collective Member State action to Community action with regard to matters over which the Community actually has competence.³³ The Court could have shed light on this by answering the Commission’s first question in its submission for Opinion 1/94, which concerned not the exclusivity of the Community’s competence, but the question whether the Community was as such competent to conclude the WTO Agreement³⁴ in all its aspects.³⁵ The Court, however, declined the opportunity.³⁶ The agreements negotiated with the Southern Common Market (Mercado Común del Sur or MERCOSUR) and its Party States (Mercosur Cooperation Agreement),³⁷ and with South Korea,³⁸ were considered as mixed agreements by the Council. The Commission, however, did not accept the grounds for mixity as put forward by the Council. Surprisingly perhaps, the Commission did accept as a ground for mixity the insertion in the agreements of a clause on political dialogue,³⁹ which could be considered a CFSP measure.⁴⁰ This illustrates that mixed agreements are often used to relieve both vertical and horizontal competence quarrels.⁴¹ However, a more positive interpretation of the reasons to resort to mixed agreements in these quasi cross-pillar cases is possible. The Member States’ decision to ³¹ P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 197. ³² C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 91. ³³ CWA Timmermans, ‘Organising Joint Participation of EC and Member States’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 240. ³⁴ Agreement Establishing the World Trade Organization, 1867 UNTS 154; 33 ILM 1144 (1994). ³⁵ Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267, para 6. ³⁶ See further CWA Timmermans, ‘Organising Joint Participation of EC and Member States’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 240, fn 6. ³⁷ Interregional Framework Cooperation Agreement between the European Community and its Member States, of the one part, and the Southern Common Market and its Party States, of the other part [1999] OJ L112/66. ³⁸ Framework Agreement for Trade and Cooperation between the European Community and its Member States, on the one hand, and the Republic of Korea, on the other hand [2001] OJ L90/46. On the EU’s policy towards Korea: S Anderson, ‘The Changing Nature of Diplomacy: The European Union, the CFSP and Korea’ (2001) 6 Eur Foreign Affairs Rev 465–482. ³⁹ eg Art 3 Mercosur Cooperation Agreement. ⁴⁰ A Rosas, ‘Mixed Union—Mixed Agreements’ in M Koskenniemi (ed.), International Law Aspects of the European Union (1998) 145. ⁴¹ cf CD Ehlermann, ‘Mixed Agreements. A List of Problems’ in D O’Keeffe and HG Schermers (eds), Mixed Agreements (1983) 9.

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include a political dialogue in the framework of mixed agreements could be interpreted as an illustration of the will to integrate the various elements of the relationship with a particular country in one single and multi-faceted framework. Political dialogues could thus be seen as instruments of EU foreign policy,⁴² to the extent that they correspond to the CFSP objectives.⁴³ Rosas notes a trend beginning during the late 1990s towards more international agreements concluded with the Community as sole contracting partner on the EU side.⁴⁴ This evolution, pushed forward by the Commission, has been stimulated by the Portugal v Council judgment,⁴⁵ which concerned Portugal’s challenge to the Community’s competence to conclude a Cooperation Agreement with India.⁴⁶ Portugal argued that all Member States should have participated in the conclusion of the agreement, and that the Community was thus not competent to conclude the agreement by itself. Portugal had a problem with the fact that the agreement touched on such matters as human rights, energy, tourism and culture, the fight against drugs, and intellectual property rights, and argued that it thus could not be considered as an agreement falling purely within the Community’s competence in development cooperation. The Court disagreed. It pointed out that in order to qualify as a development cooperation agreement for the purposes of Article 181 EC, an agreement must pursue the objectives referred to in Article 177 EC. These objectives are broad enough to enable the measures required for their pursuit to concern a variety of specific matters.⁴⁷ The Court rightly observed that to require a development cooperation agreement concluded between the Community and a non-Member State to be based on another provision as well as on Article 181 EC and, possibly, also to be concluded by the Member States whenever it touches on a specific matter would in practice amount to rendering devoid of substance the competence and procedure prescribed in Article 181 EC.⁴⁸ The fact that a development cooperation agreement contains clauses concerning various specific matters cannot alter the characterization of the agreement. The latter must be determined having regard to its essential object and not in terms of individual clauses, provided that those clauses do not impose such extensive obligations concerning the specific matters referred to that those obligations in fact constitute objectives distinct from those of development ⁴² Similarly: M Fouwels, ‘The European Union’s Common Foreign and Security Policy and Human Rights’ (1997) 15 Netherlands Q of Human Rights 301. ⁴³ C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 91–92. ⁴⁴ A Rosas, ‘The European Union and Mixed Agreements’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 218. ⁴⁵ Case C-268/94 Portugal v Council [1996] ECR I-6177. ⁴⁶ Council Decision 94/578/EC of 18 July 1994 concerning the conclusion of the Co-operation Agreement between the European Community and the Republic of India on Partnership and Development [1994] OJ L223/23. ⁴⁷ Case C-268/94 Portugal v Council [1996] ECR I-6177, para 37. ⁴⁸ Ibid, para 38.

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cooperation.⁴⁹ The Court also held, however, that the mere inclusion of provisions for cooperation in a specific field does not necessarily imply ‘a general power such as to lay down the basis of a competence to undertake any kind of cooperation action in that field’, and hence does not predetermine the vertical allocation of competences or the legal basis of Community acts for implementing cooperation in such a field.⁵⁰ In other words, it is not because a specific measure based on Article 181 EC may contain actions that fall within the scope of other legal bases in the EC Treaty or the EU Treaty, that the latter actions can only be taken under EC development cooperation competence.

7.2.2.1 Negotiation From the perspective of non-Community negotiating partners, mixed Community-Member State negotiations are a cumbersome affair.⁵¹ The Community and the Member States have to invest a substantial amount of time and energy in agreeing on the negotiating position, and Member States often view mixed agreements as the ideal opportunity to force the others into particular concessions, given that all have to agree with the draft agreement.⁵² Moreover, the division of foreign policy competences between the Community and the Member States is—it hardly needs pointing out—highly complex, and often requires some clarification and explanation to third countries.⁵³ Once the internal position reaches the stage of actual negotiations with third countries, there is often little room for manoeuvre, and the third countries concerned are faced with an inflexible position. Amendments are therefore improbable and the only option for the negotiating partners is often either to accept or reject the entire draft agreement as proposed by the Community and its Member ⁴⁹ Ibid, para 39; see also Opinion 1/78 International Agreement on Natural Rubber [1979] ECR 2871, para 56. ⁵⁰ Case C-268/94 Portugal v Council [1996] ECR I-6177, paras 47 and 67. ⁵¹ In general on the position of non-Community contracting partners with regard to mixed agreements: J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001) 121–155. On difficulties third countries face (from the perspective of Norway) in negotiating agreements with the Community: CNK Franklin, ‘Norway’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 165–195. On the relationship between mixed agreements and the international law of treaties: D Verwey, The European Community, the European Union and the International Law of Treaties (2004) 155–207. ⁵² Th is is certainly the case with the final agreement. It is also clear that the Community itself should defend a unified position throughout the negotiations. Slightly less evident is the question whether this is also the case for the Member States, but the duty of cooperation would seem to indicate that this is indeed the case: see P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 216. ⁵³ eg regarding the United Nations Convention on the Law of the Sea (UNCLOS): A Rosas, ‘The European Union and Mixed Agreements’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 204. Further J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001) 15–21 and 75 et passim.

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States. This situation is reinforced when the negotiations are bilateral—viz Community and Member States on one side, third country on the other side— and the negotiating partner has no one to strengthen its hand.⁵⁴ Similar problems may arise with regard to pure EC agreements, if the internal Community decision-making process preceding the international negotiations has resulted in a delicately balanced compromise position. The complexity of mixed agreement negotiations is not helped by the absence of a specific procedure. One solution would be to split the negotiations into a Community part and a Member State part, each equipped with their own negotiation teams. A practice has none the less developed by which the majority of mixed agreements are negotiated under the Community method of Article 300 EC,⁵⁵ in combination with a more pronounced presence of the Member States’ representatives, as well as coordination meetings during which the line to be followed by the Commission during the negotiations is decided.⁵⁶ For example, notwithstanding the acrimonious battles over the vertical division of competences during the Uruguay Round, the Member States let the Commission act as the sole negotiator.⁵⁷ This practice seems to continue under the current Doha Agenda negotiations, with regard to which the Member States agree that the Commission should act as sole negotiator even though there would be scope for independent Member State action, in particular in the field of services.⁵⁸

7.2.2.2 Signature and ratification The Community and the Member States should determine among themselves who will have the right to sign the agreement.⁵⁹ However, the decision as to whom shall be granted the right to sign a mixed agreement is an ‘act’ within the meaning of Article 230 EC and is therefore subject to judicial review by the Court of Justice.⁶⁰ ⁵⁴ P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 216. ⁵⁵ ch 3.3. ⁵⁶ cf I MacLeod, ID Hendry, and S Hyett, The External Relations of the European Communities: A Manual of Law and Practice (1996) 87–88 and 151–153; J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001) 78–86. ⁵⁷ cf M Hilf, ‘The ECJ’s Opinion 1/94 on the WTO—No Surprise, but Wise? –’ (1995) 6 Eur J Intl L 247; PJ Kuijper, ‘The Conclusion and Implementation of the Uruguay Round Results by the European Community’ (1995) 6 Eur J Intl L 228; P Van den Bossche, ‘The European Community and the Uruguay Round Agreements’ in JH Jackson and AO Sykes (eds), Implementing the Uruguay Round (1997) 53–59. ⁵⁸ P Eeckhout, ‘General Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 285. Further on the role of the EU in the Doha negotiations: R Hofmann and G Tondl (eds), The European Union and the WTO Doha Round (Baden-Baden: Nomos, 2007). ⁵⁹ K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 885, para 21-006. ⁶⁰ Case C-25/94 Commission v Council [1996] ECR I-1469, paras 29–37.

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Signing the agreement can be,⁶¹ but is quite often not, enough to express consent to be bound by an international agreement. Treaty partners will on many occasions not wish to be bound merely by signature, because they have to go through their internal constitutional procedures before they can ratify.⁶² In fact, this has been the case in the overwhelming majority of mixed agreements concluded by the Community and its Member States.⁶³ Nothing is simple when mixed agreements are concerned, and ratification is no exception. A mixed agreement will have to be ratified by both the Community—which requires going through the normal Article 300 EC procedure and, in a clear majority of the cases, includes the formal involvement of the European Parliament—and by every single Member State through its own constitutional procedures, most often also including scrutiny and approval by the Member State parliaments.⁶⁴ It does not require much imagination to see that this is liable to be a cumbersome process, which is not made any easier by certain Member States’ federal or otherwise decentralized constitutional structures.⁶⁵ The Community has thus had to develop a strategy to tackle the problems engendered by the potentially long time-span between signing and entry into force of a mixed agreement. The Council has adopted the practice of only concluding a mixed agreement after all Member States have ratified, in order to avoid so-called ‘partial mixity’.⁶⁶ Apart from this, the Community can also enter into an interim agreement on the Community aspects of the mixed agreement, which ⁶¹ See Art 12(1) Vienna Convention on the Law of Treaties of 23 May 1969, UN Doc. A/ Conf.39/27; 1155 UNTS 331; 8 ILM 679 (1969); 63 AJIL 875 (1969) (cf Art 12(1) Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, 25 ILM 543 (1986)). Cf ch 3.3.3. ⁶² Art 2(1)(a) Vienna Convention on the Law of Treaties defines ratification as ‘the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty’. Cf M Bossuyt and J Wouters, Grondlijnen van internationaal recht (2005) 54–55; A Aust, Modern Treaty Law and Practice (2007) 103–109. ⁶³ J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001) 86. ⁶⁴ See ibid, 87–92. ⁶⁵ eg Belgium, where mixed international agreements (touching on the competences of the federation, the communities and/or the regions) can only be ratified by the King after approval by the parliamentary assemblies of every single level of government on whose competences the agreement touches (Art 12 Samenwerkingsakkoord van 8 maart 1994 tussen de Federale Overheid, de Gemeenschappen en de Gewesten en het Verenigd College van de Gemeenschappelijke Gemeenschapscommissie over de nadere regelen voor het sluiten van de gemengde verdragen, Belgian State Gazette 17 December 1996); see M Bossuyt and J Wouters, Grondlijnen van internationaal recht (2005) 57. For a blatant example of delayed ratification of a mixed agreement, see the Agreement on Cooperation and Customs Union between the European Economic Community and the Republic of San Marino [2002] OJ L84/43, signed in December 1991, published in the OJ in March 2002, and entered into force in May 2002: cf A Rosas, ‘The European Union and Mixed Agreements’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 208. ⁶⁶ cf A Rosas, ‘The European Union and Mixed Agreements’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 207–208. Such a practice did not have to be developed with regard to EURATOM, because Art 102 EURATOM expressly provides for this approach. For instances where the Community did not follow this practice: J Heliskoski, Mixed

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can be concluded by a Council decision,⁶⁷ or can have the agreement provisionally applied from the time of signature, as provided for by Article 300(2) EC, and by Article 25 Vienna Convention on the Law of Treaties.⁶⁸

7.2.2.3 Implementation and international responsibility The Court determined in Ruling 1/78 Draft Convention of the International Atomic Energy Agency on the Physical Protection of Nuclear Materials, Facilities and Transports⁶⁹ that the question of implementation should be resolved by the same principles as govern the vertical division of competences regarding the negotiation and conclusion. The application of the agreement has to entail close cooperation between the institutions of the Community and the Member States. From the Court’s analysis of the respective obligations of the Community and the Member States, it can be deduced that the Community institutions only have the competence to implement those provisions of the agreement falling within their areas of competence, and that the other provisions of the agreement have to be implemented by the Member States.⁷⁰ The Court also emphasized the necessity for harmony between the international action of the Community and the division of competences and of jurisdiction within the Community.⁷¹ In that regard, the Court has held, for example in its judgment in the Merck case, concerning the possible direct effect of Article 33 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement),⁷² that the WTO Agreement, of which the TRIPs Agreement forms part, had been properly concluded by the Community and that therefore, according to settled case-law, its provisions now form an integral part of the Community legal order.⁷³ Moreover, the Court confirmed its jurisdiction, within the framework of the Community legal order, to give preliminary rulings concerning the Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001) 93–94. ⁶⁷ cf S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 134, who regards the possibility of interim agreements as one of the reasons for the relative success of mixed agreements; see also I MacLeod, ID Hendry, and S Hyett, The External Relations of the European Communities: A Manual of Law and Practice (1996) 285. ⁶⁸ cf P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 219. ⁶⁹ [1978] ECR 2151. ⁷⁰ For a fairly recent application of this doctrine by the Court: Case C-13/00 Commission v Ireland [2001] ECR I-2943, paras 16–20. ⁷¹ Ruling 1/78 Draft Convention of the International Atomic Energy Agency on the Physical Protection of Nuclear Materials, Facilities and Transports [1978] ECR 2151, para 36; cf Case 22/70 Commission v Council [1971] ECR 263. ⁷² The Court concluded that as Community legislation in the sphere of patents now stands, it is not contrary to Community law for Article 33 of the TRIPs Agreement to be directly applied by a national court subject to the conditions provided for by national law. ⁷³ Case C-431/05 Merck Genéricos Produtos Farmacêuticos [2006] OJ C36/22, para 31. See also eg Case C-344/04 IATA and ELFAA [2006] ECR I-403, para 36; cf Case C-459/03 Commission v Ireland ECR I-4635, para 82.

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interpretation of the WTO Agreement.⁷⁴ However, the Court emphasized that the WTO Agreement was concluded by the Community and all its Member States on the basis of joint competence and this without any allocation between them of their respective obligations towards the other contracting parties.⁷⁵ Consequently, because the TRIPs Agreement was concluded by the Community and its Member States ‘by virtue of joint competence’, the Court confirmed that it had jurisdiction to define the obligations which the Community has thereby assumed and, for that purpose, to interpret the provisions of the TRIPs Agreement.⁷⁶ The Court held that, in order to answer the question whether the matter at issue (patents) fell within Community or Member State competence, it was necessary to examine the sharing of competence between them. The Court concluded that that question ‘calls for a uniform reply at Community level that the Court alone is capable of supplying’.⁷⁷ As argued by Eeckhout, the WTO Agreement, covering areas where Community and Member State competence are particularly entangled, illustrates the difficulties with adopting the Community’s competence as the criterion for the Court’s jurisdiction: ‘If competence is the criterion for jurisdiction, the latter will be the hostage of the complexity of the former’.⁷⁸ This remark was quoted⁷⁹ and taken on board by Advocate General Ruiz-Jarabo Colomer in his Opinion in the case. Referring to the problems ‘in which the Court of Justice has itself become embroiled’ and to the ‘deficiencies in its caselaw’, the Advocate General urged the Court ‘to assume its responsibility, in order both to reformulate its case-law and adapt it to the fundamental principles of international law, and to invest it with the legal certainty required by institutions at intra-Community level’, and accordingly to declare that it has jurisdiction to interpret the TRIPs Agreement.⁸⁰ The suggestion to revisit its case-law was, however, not taken up by the Court. The Court has further held that mixed agreements concluded by the Community, its Member States and non-Member States have the same status in ⁷⁴ Case C-431/05 Merck Genéricos Produtos Farmacêuticos [2006] OJ C36/22, para 31. See also Case 181/73 Haegeman v Belgium [1974] ECR 449, paras 4 to 6, and Case 12/86 Demirel [1987] ECR 3719, para 7. Further on the Court of Justice’s preliminary rulings competence pursuant to Art 234 EC regarding mixed agreements: J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001) 52–61. ⁷⁵ Case C-431/05 Merck Genéricos Produtos Farmacêuticos [2006] OJ C36/22, para 32. See also Case C-53/96 Hermès International v FHT Marketing Choice [1998] ECR I-3603, para 24. ⁷⁶ Case C-431/05 Merck Genéricos Produtos Farmacêuticos [2006] OJ C36/22, para 33. See also Joined Cases C-300/98 and C-392/98 Parfums Christian Dior SA v Tuk Consultancy BV (C-300/98) and Assco Gerüste GmbH, Rob van Dijk, trading as Assco Holland Steigers Plettac Nederland v Wilhelm Layher GmbH & Co KG, Layher BV (C-392/98) [2000] ECR I-11307, para 33. ⁷⁷ Case C-431/05 Merck Genéricos Produtos Farmacêuticos [2006] OJ C36/22, paras 34–37. ⁷⁸ P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 237. ⁷⁹ Opinion in Case C-431/05 Merck Genéricos Produtos Farmacêuticos [2006] OJ C36/22, point 52. ⁸⁰ Points 53–61 of his Opinion.

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the Community legal order as purely Community agreements, to the extent that they contain provisions coming within the scope of Community competence.⁸¹ In ensuring respect for commitments arising from an agreement concluded by the Community institutions, the Member States fulfil, within the Community system, an obligation in relation to the Community, which has assumed responsibility for the due performance of the agreement.⁸² The Court has also held that where a provision of a mixed agreement can apply both to situations falling within the scope of national law and to situations falling within the scope of Community law, that provision should, in the interest of the Community, be interpreted uniformly and hence be subject to the Court’s preliminary reference jurisdiction under Article 234 EC in order to forestall future differences of interpretation. This is so even when, in the case in question, the relevant provision does not fall within the Community’s competence.⁸³ In the Étang de Berre judgment,⁸⁴ the Court held that since the mixed agreement concerned created rights and obligations in a field covered in large measure by Community legislation (environmental protection), there was a Community interest in compliance by both the Community and its Member States with the commitments entered into under the mixed agreement. The fact that the specific provisions of the mixed agreement that were at issue in the case had not yet been the subject of Community legislation was not capable of calling that finding into question. The provisions concerned fell within the Community framework since they were contained in mixed agreements concluded by the Community and its Member States and concerned a field in large measure covered by Community law. The Court therefore held that it had jurisdiction to assess a Member State’s compliance with those provisions in proceedings brought before it under Article 226 EC.⁸⁵ The Court has emphasized that the Member States and the Community institutions have an obligation of close cooperation in fulfilling the commitments undertaken by them under joint competence when they conclude a mixed agreement.⁸⁶ In the Mox Plant case, the Court held that this is so particularly when a ⁸¹ See Case 12/86 Meryem Demirel v Stadt Schwäbisch Gmünd [1987] ECR 3719, para 9; Case C-13/00 Commission v Ireland [2001] ECR I-2943, para 14; Case C-239/03 Commission v France [2004] ECR I-9325, para 25; Case C-459/03 Commission v Ireland [2006] ECR I-4635, para 84. ⁸² See Case 12/86 Meryem Demirel v Stadt Schwäbisch Gmünd [1987] ECR 3719, para 11; Case C-13/00 Commission v Ireland [2001] ECR I-2943, para 15; Case C-239/03 Commission v France [2004] ECR I-9325, para 26; Case C-459/03 Commission v Ireland [2006] ECR I-4635, para 85. ⁸³ Case C-53/96 Hermès International v FHT Marketing Choice [1998] ECR I-3603, paras 32–33; Joined Cases C-300/98 and C-392/98 Parfums Christian Dior SA v Tuk Consultancy BV (C-300/98) and Assco Gerüste GmbH, Rob van Dijk, trading as Assco Holland Steigers Plettac Nederland v Wilhelm Layher GmbH & Co KG, Layher BV (C-392/98) [2000] ECR I-11307, para 35; cf Case C-28/95 A. Leur-Bloem v Inspecteur der Belastingdienst/Ondernemingen Amsterdam 2 [1997] ECR I-4161, para 34; Case C-130/95 Bernd Giloy v Hauptzollamt Frankfurt am Main-Ost [1997] ECR I-4291, para 28. ⁸⁴ Case C-239/03 Commission v France [2004] ECR I-9325. ⁸⁵ Case C-239/03 Commission v France [2004] ECR I-9325, paras 27–31. ⁸⁶ Joined Cases C-300/98 and C-392/98 Parfums Christian Dior SA v Tuk Consultancy BV (C-300/98) and Assco Gerüste GmbH, Rob van Dijk, trading as Assco Holland Steigers Plettac

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Member State submits to an arbitral tribunal outside the Community framework a dispute essentially on undertakings resulting from a mixed agreement which relates to an area, in which the respective areas of competence of the Community and the Member States are liable to be closely interrelated.⁸⁷ In those circumstances, the obligation of close cooperation within the framework of a mixed agreement involves a duty to inform and consult the competent Community institutions prior to instituting dispute-settlement proceedings concerning the MOX plant within the framework of United Nations Convention on the Law of the Sea (UNCLOS).⁸⁸ By bringing proceedings under the UNCLOS disputesettlement system, without having first informed and consulted the competent Community institutions, Ireland had therefore failed to comply with its duty of cooperation under Articles 10 EC and 192 EURATOM.⁸⁹ The unwillingness of the Community to provide any clear division of competences makes it difficult, particularly for the third party to a mixed agreement, to know who could be held responsible for potential non-compliance.⁹⁰ It has been argued that if the Community and its Member States wilfully refrain from formally publicizing the demarcation line between their respective areas of jurisdiction, their partners cannot be expected to make the necessary inquiries themselves.⁹¹ A solution to this might be to accept that, as suggested by Advocate General Jacobs, under a mixed agreement the Community and the Member States are jointly liable unless the provisions of the agreement point to the opposite conclusion.⁹² Heliskoski, however, puts forward the interesting suggestion Nederland v Wilhelm Layher GmbH & Co KG, Layher BV (C-392/98) [2000] ECR I-11307, para 36; Case C-459/03 Commission v Ireland [2006] ECR I-4635, para 175. ⁸⁷ Case C-459/03 Commission v Ireland [2006] ECR I-4635, para 176. ⁸⁸ 10 December 1982, 1833 UNTS 3; 21 ILM 1261 (1982); Ibid, para 179. ⁸⁹ Ibid, para 182 and see also the Opinion of Poiares Maduro AG, points 57–58; cf M Cremona, ‘Community Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 340–341, who already argued that even if Ireland was right in claiming that the Community had not concluded the parts of the agreement at issue, Art 10 EC also applies to the Member States exercising their own competences. See further ch 7.3. Further on the questions raised (or left untouched) by the Mox Plant judgment regarding the international responsibility of the Community and its Member States: P Eeckhout, ‘General Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 291–294. ⁹⁰ C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 123. ⁹¹ C Tomuschat, ‘Liability for Mixed Agreements’ in D O’Keeffe and HG Schermers (eds), Mixed Agreements (1983) 130; cf P Eeckhout, ‘General Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 293 and 299. ⁹² Opinion in Case C-316/91 European Parliament v Council [1994] ECR I-625, point 69, and see also the judgment at para 29; Case C-53/96 Hermès International v FHT Marketing Choice [1998] ECR I-3603, para 24. Compare Art 47 of the International Law Commission’s Articles on State Responsibility, UN General Assembly Resolution A/56/83, the first paragraph of which provides: ‘Where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act’, on which see J Crawford, The

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of a ‘normative procedural framework’ within which the Community and the Member States may themselves determine which of them is the correct party to a particular relationship under a mixed agreement. Decisions on whether the Community or the Member States should act could be taken on a case-bycase basis without in abstracto determining the vertical division of competences. Ambiguity or delay on the part of the Community or the Member States would be sanctioned by time-limits and a default rule of joint, or joint and several responsibility that would, however, not be the a priori rule, and would hence avoid blurring the competences and obligations of the Community and the Member States.⁹³ Notwithstanding the Court’s pronouncements on the matter, some form of arrangement in the EC Treaty would be desirable with regard to the practicalities of exercising non-exclusive Community competence, and in particular on the implementation of mixed agreements.⁹⁴

7.2.2.4 Partially mixed agreements When considering mixed agreements, it is important to keep in mind that the Member States very much regard themselves as independent sovereign entities, with an independent will and competence to decide whether to enter into an agreement or not. Predictably, this can lead to agreements that are mixed, in International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002) 272–275. For further suggestions: P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 222–223; I MacLeod, ID Hendry, and S Hyett, The External Relations of the European Communities: A Manual of Law and Practice (1996) 158–160. For an analysis of the issues surrounding countermeasures such as suspension and termination of treaty obligations with regard to mixed agreements: A Rosas, ‘The European Union and Mixed Agreements’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 209–210; J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001) 209–239; and specifically with regard to the suspension of Partnership and Cooperation Agreements with Russia and the Ukraine: C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 74–76. On countermeasures according to the International Law Commission’s Articles on State Responsibility: J Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002) 168– 169 and 281–305. ⁹³ J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001) 244–247; further: P Eeckhout, ‘General Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 297–303, who discusses the impact of the International Law Commission’s work on the responsibility of international organizations. Further on international responsibility in the context of mixed agreements: M Cremona, ‘Community Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 341–348. ⁹⁴ cf AA Dashwood, ‘External Relations Provisions of the Amsterdam Treaty’ (1998) 35 CML Rev 1043; J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001) 111–118 and 247–248; P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 214–215.

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the sense that the Community and the Member States are treaty partners alongside each other, but only partially so, because one or more of the Member States has decided that it does not wish to enter into the agreement. In such circumstances, the issues surrounding mixed agreements will necessarily gain in complexity. An all-important issue with regard to such partially mixed agreements is who is bound by the agreement. While the answer might seem obvious—the Community and the Member States that have acceded to the agreement are bound, and the other Member States are not—Article 300(7) EC complicates matters by stipulating that agreements concluded by the Community are binding on the institutions and on the Member States. The Community’s contracting parties have often demanded that in case of a partially mixed agreement, no rights or benefits should accrue to the non-participating Community Member States. From the perspective of Community law, however, this solution is unworkable because of its apparent infringement of the prohibition of discrimination.⁹⁵ It has also been required that the participation of the Community—and indeed of any international organization—is subject to the participation of the majority or all of its Member States, and that the Community and the Member States specify the precise division of competences before signing the agreement.⁹⁶ However, this would limit the Community’s autonomy of action and hamper its development as an evolving system. It has been suggested that the only satisfactory solution would seem to be that the Community and the Member States become parties simultaneously. This is, unsurprisingly, often difficult to attain in practice.⁹⁷

7.2.3 Mixed representation in international organizations As pointed out by the Court in Opinion 1/76, the Community in principle has the power to cooperate with third countries in establishing an international organization. This includes the power for the Community to give the organs of such an international organization the appropriate powers of decision and to define the ‘nature, elaboration, implementation and effects’ of the decisions to be adopted within the framework of the international organization concerned.⁹⁸ ⁹⁵ Art 12 EC. ⁹⁶ eg UNCLOS, Annex IX, Arts 2 and 3(1). ⁹⁷ J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001) 128–134 and 153–154. ⁹⁸ Opinion 1/76 Draft Agreement establishing a European laying-up fund for inland waterway vessels [1977] ECR 741, para 5; see also implicitly Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267. See in general on the EU’s status in international organizations: F Hoffmeister, ‘Outsider or Frontrunner? Recent Developments under International and European Law on the Status of the European Union in International Organizations and Treaty Bodies’ (2007) 44 CML Rev 41–68, who notes that the Union qua Union (viz not just the Community) has for the first time been accepted as an observer of an international organization, namely the South Asian Association for Regional Development (SAARC): ibid, 53–54. Compare J Sack, ‘The European Community’s

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These matters are only sparsely regulated in the Treaty. The Commission is entrusted with the maintenance of all appropriate relations with the organs of the UN and of its specialized agencies, and as appropriate with all international organizations.⁹⁹ It also has to maintain all appropriate forms of cooperation with the Council of Europe,¹⁰⁰ and to establish close cooperation with the OECD.¹⁰¹ These are all the clauses on the Community’s membership of international organizations to be found in the EC Treaty, apart from a few Treaty provisions mentioning cooperation with international organizations in a number of specific areas.¹⁰² Until the Treaty of Maastricht, the EEC Treaty contained an Article 116 EEC, which required the Member States, in respect of all matters of particular interest to the common market, to proceed within the framework of international organizations of an economic character only by common action. The motivation behind the deletion of this Article is not readily apparent,¹⁰³ especially because there is no Article in either the EC Treaty or the EU Treaty that covers the exact same ground.¹⁰⁴ From an international legal perspective, there is no problem with the Community becoming a founding member of an international organization. This was famously the case with regard to the WTO. The Community had also been a de facto member of the WTO’s predecessor, the General Agreement on Tariffs and Trade (1947).¹⁰⁵ Specific voting rules have been agreed with regard to the Community’s participation in the WTO.¹⁰⁶ However, as was the case under the GATT (1947), the WTO’s principal way of decision-making is by consensus.¹⁰⁷ This guarantees that decisions are only taken when they receive broad approval by the members, and will therefore be relatively easily enforceable, which is an important consideration for any international organization without ‘hard’ means of forcing its members to comply.¹⁰⁸ Voting is therefore rarely an issue, and this is reflected in the fact that Membership of International Organizations’ (1995) 32 CML Rev 1238–1252, who draws a distinction between accession to international organizations that have an independent existence and membership structure on the one hand, and becoming a party to an international agreement that establishes some kind of institutional structures. This distinction is relevant from the perspective of Art 300(3), subpara 2 EC, which provides that the European Parliament’s assent is required for agreements ‘establishing a specific institutional framework by organising co-operation procedures’: see ch 3.3.4. ⁹⁹ Art 302 EC. ¹⁰⁰ Art 303 EC. ¹⁰¹ ‘the details of which shall be determined by common accord’: Art 304 EC. ¹⁰² eg Art 174(4) EC (environment). ¹⁰³ Further, arguing that the deletion was a mistake: C Kaddous, Le droit des relations extérieures dans la jurisprudence de la Cour de justice des Communautés européennes (1998) 187–188; cf M Smith, Europe’s Foreign and Security Policy: The Institutionalization of Cooperation (2004) 215. ¹⁰⁴ Art 19(1) EU requires the Member States to coordinate their action in international organizations and at international conferences, but this provision—contained within Title V of the EU Treaty—cannot apply to external action under the EC Treaty, because of Art 47 EU. See, however, with regard to monetary policy: Art 111(4) EC. ¹⁰⁵ 55 UNTS 194; 61 Stat. pt. 5; TIAS 1700; see Art XIV(1) WTO Agreement. ¹⁰⁶ Art IX(1), fn 2 WTO Agreement. ¹⁰⁷ As Art IX(1) WTO Agreement itself indicates. ¹⁰⁸ M Bossuyt and J Wouters, Grondlijnen van internationaal recht (2005) 673.

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the Community has not deemed it necessary to conclude a clear agreement with its Member States on the exercise of membership rights within the WTO. In general, the Member States are happy to leave negotiations and even dispute settlement within the WTO to the Community institutions, in particular the Commission, which possesses extensive experience and expertise in external trade matters.¹⁰⁹ Things are different regarding pre-existing international organizations. Many international organizations dating from before the establishment of the Communities have no provision in their constitutions to accommodate other international organizations wishing to become members. The example that probably first comes to mind is the United Nations.¹¹⁰ Though the Community cannot become a member of the UN, the UN General Assembly already on 11 October 1974 requested the Secretary-General ‘to invite the European Economic Community to participate in the sessions and work of the General Assembly in the capacity of observer’.¹¹¹ The only way for the Community/Union to join such an international organization would be to persuade the existing members to amend the constitution of the organization in order to enable other international organizations to become members. Should that be successful, the Community and the Member States become members of the relevant international organizations alongside each other. A well-known example of such a construction is the Food and Agricultural Organisation of the United Nations (FAO).¹¹² The FAO ¹⁰⁹ J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001) 178–193. On mixity within the WTO: P Koutrakos, EU International Relations Law (2006) 175–180, and on the effect of GATT and WTO rules in the Community legal order: ibid, 251–299. Further: P Eeckhout, ‘General Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 285–286 and 294– 296; E Steinberger, ‘The WTO Treaty as a Mixed Agreement: Problems With the EC’s and the EC Member States’ Membership of the WTO’ (2006) 17 Eur J Intl L 837–862. In general on the relationship between the EU and the WTO: G de Búrca and J Scott (eds), The EU and the WTO: Legal and Constitutional Issues (2001). ¹¹⁰ In general: K Lenaerts and E De Smijter, ‘The United Nations and the European Union: Living Apart Together’ in K Wellens (ed.), International Law: Theory and Practice: Essays in honour of Eric Suy (1998) 439–458. ¹¹¹ Status of the European Economic Community in the General Assembly, A/RES/3208 (XXIX). Cf Reply of 30 November 2000 to Written Question E-2810/00 of 6 September 2000 by Jeff rey Titford (EDD) to the Council [2001] OJ C113E/181, para 1 and paras 2–4: ‘[T]he fifteen Member States of the European Union are full members of the United Nations. The European Union as such has no legal status within the United Nations. The European Community, for its part, has observer status at the United Nations General Assembly. It thus has a permanent invitation from the organisation to take part as an observer in the sessions and proceedings of the General Assembly and has a permanent office at the Organisation’s Headquarters. It is represented there by the Presidency and the Commission.’ Cf Art 12(2) Constitution of the International Labour Organisation: ‘The International Labour Organization may make appropriate arrangements for the representatives of public international organizations to participate without vote in its deliberations.’ Further on the Community’s position regarding the ILO: P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 201–203. ¹¹² The FAO admitted the EEC as a member, alongside its Member States, by decision of 26 November 1991, taken under Art II(3) and (5) FAO Constitution: Case C-25/94 Commission v Council [1996] ECR I-1469, para 2. On EC membership of the FAO: J Sack, ‘The European

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constitutional provisions, in combination with the Community’s complex vertical and horizontal division of competences, were almost destined to create prohibitive difficulties, the discussion of which exceeds the scope of this book.¹¹³ As with the FAO, any international organization to which both the Community and the Member States are parties will have to determine whether both the Community and the Member States get voting rights and, if so, how these are to be exercised. Community membership of international organizations, and hence mixed Community-Member State membership, is very rare indeed, especially in comparison with its accession to international agreements, mixed or other. Apart from the legal difficulties with acceding to existing international organizations, there are also internal obstacles that are political, rather than legal in nature to the Community’s membership of international organizations: the Member States fear that allowing the Community to accede to an international organization will encroach upon their sovereignty.¹¹⁴ As pointed out by Heliskoski, this is rooted in the classical conception of sovereign States as the members par excellence of the international community, and in Statehood as its key organizing concept. Membership of international organizations and participation in diplomatic conferences has been vested with an intrinsic value capable of transcending any immediate policy objectives: ‘The fact of being present has become a thing in itself, a recognised sign of status and privilege—something one is only supposed to give up with great reluctance.’¹¹⁵ As often, external sovereignty seems to be regarded as rather more sacred than internal sovereignty:¹¹⁶ the Member States Community’s Membership of International Organizations’ (1995) 32 CML Rev 1243–1247. On the exercise of voting rights within the FAO: J Heliskoski, ‘Internal Struggle for International Presence: The Exercise of Voting Rights Within the FAO’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 79–99; see Art II(5) FAO Constitution; Case C-25/94 Commission v Council [1996] ECR I-1469, para 3; XLI(2)–(3) FAO General Rules of the Organization. Further on the participation of the Community and the Member States in the FAO: P Koutrakos, EU International Relations Law (2006) 168–172. Cf also the Community’s relations with certain ‘commodity organisations’: R Barents, ‘The European Communities and the Commodity Organisations’ [1984] Legal Issues of Eur Integration 77–91. ¹¹³ See J Sack, ‘The European Community’s Membership of International Organizations’ (1995) 32 CML Rev 1243–1247; cf J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001) 105–110, who argues that the exercise of the right to vote by either the Community or the Member States is also bound to have implications on the vertical division of competences in abstracto, or in other words in other cases relating to the same subject-matter; see ch 7.3 on the Arrangement of the Commission and the Council regarding the exercise of membership rights of the FAO. ¹¹⁴ J Sack, ‘The European Community’s Membership of International Organizations’ (1995) 32 CML Rev 1232–1233. ¹¹⁵ J Heliskoski ‘Internal Struggle for International Presence: The Exercise of Voting Rights Within the FAO’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 79. ¹¹⁶ The tendency to regard external sovereignty as absolute explains the cleft between States and international organizations: only States can have inherent competences rooted in the constitution, while international organizations acquire their competences through the treaty to which the Member States are party. Th is turns the question of external sovereignty into the question of the autonomy of a legal order: A Verhoeven, The European Union in Search of a Democratic and

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are quite happy to accept Community-imposed restrictions on their regulatory competences with regard to internal policy areas, while refusing to accept parallel restrictions for the external aspects of the same areas. This leads to situations where the Community is internally competent to regulate certain matters, but is unable to defend its position in international organizations.¹¹⁷ Defending effectively the Community’s position in international organizations should not, however, be equated with there being a single negotiator. In fact, Member States acting individually or collectively along with the institutions of the Community can in certain circumstances be more effective, provided they show due regard for the duty of cooperation.¹¹⁸

7.3 Vertical Consistency through Loyal Cooperation 7.3.1 Introduction Any federal-type structure will be characterized by a constant balancing act between the principles of subsidiarity and consistency.¹¹⁹ This is exemplified by Article 1 EU, which on the one hand provides that decisions should be taken ‘as closely as possible to the citizen’ and on the other hand that the EU’s task is to organize relations between the Member States and their peoples ‘in a manner demonstrating consistency and solidarity’.¹²⁰ How is a federal-type structure to ensure that its policies, while respecting the possibilities for differentiation within and across the several levels of government, remain broadly consistent and Constitutional Theory (2002) 32; cf N MacCormick, Questioning Sovereignty: Law, State, and Practical Reason (1999) 132–133, who argues that the Member States are not fully sovereign anymore, neither internally nor externally; also P Allott, ‘Adherence To and Withdrawal From Mixed Agreements’ in D O’Keeffe and HG Schermers (eds), Mixed Agreements (1983) 116. Cf O O’Neill, Bounds of Justice (2000) 184, who questions external sovereignty, as it is commonly understood. See also FG Jacobs, The Sovereignty of Law: The European Way (2007) 4–5, who argues that both internal and external sovereignty are defunct as concepts; and K Schiemann, ‘Europe and the Loss of Sovereignty’ (2007) 56 ICLQ 475–490, who holds that the concept of sovereignty plays too large a part in contemporary discussion. On sovereignty in general, see further eg N Walker (ed.), Sovereignty in Transition (2003); M Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2005) 224–302. ¹¹⁷ See F Dehousse and K Ghemar, ‘Le traité de Maastricht et les relations extérieures de la Communauté européenne’ (1994) 5 Eur J Intl L 164–168. ¹¹⁸ S Hyett, ‘The Duty of Co-operation: A Flexible Concept’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 252–253. ¹¹⁹ eg regarding the USA: R Dworkin, Law’s Empire (1986) 184–186. ¹²⁰ The concept of consistency predates the EU Treaty, and was first introduced by the Single European Act (SEA), whose Preamble, referred to the ‘responsibility incumbent upon Europe to aim at speaking ever increasingly with one voice and to act with consistency and solidarity in order more effectively to defend its common interests and independence’. Art 30(5) SEA provided that ‘the external policies of the European Community and the policies adopted by the European Political Cooperation must be consistent’. Cf C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 147.

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coherent, both internally and, which is often considered as at least as important, towards the outside world? Because of its internally differentiated constitutional structure, the EU has to strive for consistency on two fronts: horizontally between its different institutions, structures and policies, and vertically, between the EU as a whole and its Member States.¹²¹ The different language versions of the EU Treaty are not entirely consistent in their use of the terms ‘consistency’ and ‘coherence’.¹²² Some languages refer to the former concept, others to the latter. It has been argued that there is a difference in meaning between the two concepts, in that consistency in law is the absence of contradictions, whereas coherence refers to positive connections. Moreover, so the argument goes, coherence in law is a matter of degree, whereas consistency is a static concept. Concepts of law can be more or less coherent, but they cannot be more or less consistent—they are either consistent or not.¹²³ Understood in this way, the Union’s policies should be both consistent and coherent. Moreover, the principle set out in Article 3 EU would seem to be deprived of any raison d’être if it were intended merely to prevent legal contradictions between measures taken by institutions and Member States, since other devices, such as Article 47 EU, are available for the purpose.¹²⁴ However ‘consistency’ being the term used in the English language version, it is used throughout this book. Moreover, Denza points out that ‘coherence’ has in the English language the primary meaning of ‘making sense’ as opposed to ‘incoherence’, and that ‘consistency’ can indeed be used to refer to degrees of positive connections.¹²⁵ This section examines the vertical aspect of consistency, while horizontal consistency forms the subject of Chapter 8. The vertical aspect of consistency is clearly connected with the principle of subsidiarity and with the respective identities of the Union and the Member States. Article 6 EU tries to create an identity for the Union by formulating certain principles upon which the Union is said to be based: liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law. These principles are said to be common to the Member States. In addition, the Union is under an obligation to respect fundamental rights as guaranteed by the European Convention on Human Rights and as they result from the ‘constitutional traditions common ¹²¹ cf S Nuttall, ‘Coherence and Consistency’ in C Hill and M Smith (eds), International Relations and the European Union (2005) 92, who distinguishes between three categories of consistency: horizontal, institutional, and vertical. ¹²² RA Wessel, ‘The Inside Looking Out: Consistency and Delimitation in EU External Relations’ (2000) 37 CML Rev 1150; see also P Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law (2001) 39–40; cf M Trybus, European Union Law and Defence Integration (2005) 87–90. ¹²³ C Tietje, ‘The Concept of Coherence in the Treaty on European Union and the Common Foreign and Security Policy’ (1997) 2 Eur Foreign Affairs Rev 212–213; further: RA Wessel, ‘The Inside Looking Out: Consistency and Delimitation in EU External Relations’ (2000) 37 CML Rev 1150; P Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law (2001) 40. ¹²⁴ C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 150. ¹²⁵ E Denza, The Intergovernmental Pillars of the European Union (2002) 290, fn 2.

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to the Member States, as general principles of Community law’.¹²⁶ However, any statement about the identity of the Union implies one about the identities of the Member States. After putting forward the principles on which the EU is based, Article 6 EU therefore affirms that the Union has to respect the national identities of its Member States.¹²⁷ The Treaty of Maastricht introduced this principle to emphasize the continuing importance of the Member States in the EU constitutional order.¹²⁸ Notwithstanding the fact that it is non-justiciable,¹²⁹ the Court of Justice has used this as an interpretive aid on a number of occasions.¹³⁰ The Treaty of Lisbon reaffirms and elaborates the principle, providing that the Union is to respect ‘the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government’.¹³¹ Moreover, the close link between security and identity¹³² can be seen in the Union’s commitment, as formulated by the Treaty of Lisbon, to respecting the Member States’ essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, the Treaty of Lisbon specifies that national security remains the sole responsibility of each Member State.¹³³ A specific analysis of the application of the principle of subsidiarity to the Union’s foreign policy falls outside the scope of this book. This section looks at the key principle in the balance between subsidiarity and consistency: loyal cooperation.

7.3.2 Loyalty in the Community The principle of loyalty, as laid down in Article 10 EC, is of great importance for the Union’s external relations and for its entire constitutional structure.¹³⁴ It ¹²⁶ Art 6(1)–(2) EU. ¹²⁷ Art 6(3) EU. ¹²⁸ AA Dashwood, ‘States in the European Union’ (1998) 23 ELR 202. ¹²⁹ Art 46 EU. ¹³⁰ See eg Case C-473/93 Commission v Luxemburg [1996] ECR I-3207, para 35: ‘ . . . the preservation of the Member States’ national identities is a legitimate aim respected by the Community legal order (as is indeed acknowledged in Article F(1) of the Treaty on European Union) [now Art 6(3) EU] . . . .’ Further: A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (2002) 324. ¹³¹ New Art 4(2) EU (cf Art I-5(1) TC). See, however, for an example of some potentially problematic aspects of the decentralized structure of Member States for the EU legal order: the Opinion of Sharpston AG in Case C-212/06 Gouvernement de la Communauté française and Gouvernement wallon [2006] OJ C178/18, especially points 116–120. ¹³² cf O Wæver, ‘European Security Identities’ (1996) 34 J of Common Market Studies 103– 132. On the elastic concept of ‘national security’: O Gross and F Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (2006) 214–220. On the role of law in collective security: M Koskenniemi, ‘The Place of Law in Collective Security’ (1996) 17 Michigan J Intl L 455–490, who argues that security requires a prior redefenition of the community, viz the subjects of security: ibid, 472. ¹³³ New Art 4(2) EU (cf Art I-5(1) TC). ¹³⁴ cf eg P Koutrakos, EU International Relations Law (2006) 105–106 and 116.

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reflects a more general federal principle according to which ‘each level and unit of government must always act to ensure the proper functioning of the system of governance as a whole’.¹³⁵ The Court held in Ruling 1/78 that it lies at the basis of the duty of cooperation in external matters.¹³⁶ This Ruling pertained to Article 192 EURATOM, which is, however, identical to Article 10 EC. The Court in later judgments seems to make little of the fact that Ruling 1/78 concerned EURATOM, and has regularly referred to it in cases concerning the EC Treaty.¹³⁷ In Opinion 2/91, it explicitly confirmed that the duty of cooperation must also apply in the context of the EC Treaty ‘since it results from the requirement of unity in the international representation of the Community’.¹³⁸ In other words, the Court confirmed the duty of cooperation but this time did not consider the principle of loyal cooperation as laid down in Article 10 EC to be its source, but rather the ‘requirement of unity in the international representation of the Community’. However, as has been remarked, the Court in Opinion 2/91 imported the duty of cooperation into the context of the EEC Treaty, and there is no reason to suppose that this changed either its nature or its ultimate legal foundation.¹³⁹ The duty of cooperation in external matters can thus be seen as a particular incarnation of the principle of loyal cooperation¹⁴⁰ and both these principles are expressions of Community solidarity, ‘which is at the basis of . . . the whole of the Community system in accordance with the undertaking provided for in Article 5 of the Treaty [now Article 10 EC]’.¹⁴¹ ¹³⁵ D Halberstam, ‘Of Power and Responsibility: The Political Morality of Federal Systems’ (2004) 90 Virginia LR 734, who calls this the ‘fidelity approach’, and argues that it is more prevalent in the EU and Germany than in the USA; cf A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (2002) 306, who notes that the principle of loyalty is akin, but not identical to the principle of federal loyalty enshrined in many federal systems, such as Austria, Belgium, Germany, and Spain. ¹³⁶ Ruling 1/78 Draft Convention of the International Atomic Energy Agency on the Physical Protection of Nuclear Materials, Facilities and Transports [1978] ECR 2151, paras 33–34. ¹³⁷ cf P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 210–211. ¹³⁸ Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work [1993] ECR I-1061, para 36. ¹³⁹ C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 104. ¹⁴⁰ Similarly: I MacLeod, ID Hendry, and S Hyett, The External Relations of the European Communities: A Manual of Law and Practice (1996) 145; M Cremona, ‘External Relations and External Competence: The Emergence of an Integrated Policy’ in P Craig and G de Búrca (eds), The Evolution of EU Law (1999) 170; CWA Timmermans, ‘Organising Joint Participation of EC and Member States’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 241; J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001) 64. Cf P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 215, who considers the principle of loyalty and the requirement of unity in the international representation of the Community to be the twin foundations of the duty of cooperation. For an overview: C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 102–106. ¹⁴¹ Joined Cases 6/69 and 11/69 Commission v France [1969] ECR 523, para 16. See further C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 105–106.

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As can be deduced from the ERTA judgment¹⁴² and Opinion 2/91,¹⁴³ the duty of cooperation implies that, even when the Member States are still entitled to take autonomous measures with regard to areas of non-exclusive Community competence, they are precluded from taking any internal or external measure that would affect the rules already adopted within the Community framework, whether internal or through an international agreement.¹⁴⁴ The unity in the international representation of the Community requires that the Community and the Member States cooperate fully in any area of external relations in which they both exercise competence.¹⁴⁵ The duty of cooperation is mutual, as is clear, for example, from Luxembourg v European Parliament, where the Court mentioned the ‘rule imposing on Member States and the Community institutions mutual duties of sincere cooperation, as embodied in particular in Article 5 of the EEC Treaty [now Article 10 EC]’,¹⁴⁶ and extends to the cooperation between Member State courts and the Court of Justice.¹⁴⁷ Moreover, the ‘inter-institutional dialogue’ within the Community is ¹⁴² Case 22/70 Commission v Council [1971] ECR 263, para 22; see also Joined Cases 3, 4, and 6/76, Cornelis Kramer and others [1976] ECR 1279, paras 44–45. ¹⁴³ Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work [1993] ECR I-1061, paras 11–12. However, the Court’s overall conclusion in Opinion 2/91 was that the competence to conclude ILO Convention No 170 was shared between the Community and the Member States, mostly because ‘the substantive scope of the Convention lies outside the scope of the association scheme for overseas countries and territories and consequently . . . it is for the Member States, which are responsible for the international relations of those territories and which represent them in that regard, to conclude the Convention in question’. ¹⁴⁴ D O’Keeffe, ‘Exclusive, Concurrent and Shared Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 197–198. ¹⁴⁵ Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267, para 108; cf Ruling 1/78 Draft Convention of the International Atomic Energy Agency on the Physical Protection of Nuclear Materials, Facilities and Transports [1978] ECR 2151, paras 34–36; Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work [1993] ECR I-1061, para 36; Opinion 2/00 [Cartagena Protocol] [2001] ECR I-9713, para 18. ¹⁴⁶ Case 230/81 Luxembourg v European Parliament [1983] ECR 255, para 37; see also Case C-339/00 Ireland v Commission [2003] ECR I-11757, paras 71 and 72, and the case-law cited there. And see Case T-47/03 Sison v Council [2003] OJ C101/41, paras 170–171, in which the Court of First Instance held that in a case of application of certain Community law provisions which introduce a specific form of cooperation between the Council and the Member States in the context of combating terrorism, the duty to cooperate entails, for the Council, ‘the obligation to defer as far as possible to the assessment conducted by the competent national authority, at least where it is a judicial authority, both in respect of the issue of whether there are “serious and credible evidence or clues” on which its decision is based and also in respect of recognition of potential restrictions on access to that evidence or those clues, legally justified under national law for overriding reasons of public policy, public security or the maintenance of international relations’. Further, in general: PJG Kapteyn and P VerLoren van Themaat, Introduction to the Law of the European Communities: From Maastricht to Amsterdam (1998) 158–162. ¹⁴⁷ Joined Cases C-300/98 and C-392/98 Parfums Christian Dior SA v Tuk Consultancy BV (C-300/98) and Assco Gerüste GmbH, Rob van Dijk, trading as Assco Holland Steigers Plettac Nederland v Wilhelm Layher GmbH & Co KG, Layher BV (C-392/98) [2000] ECR I-11307, paras 36–38.

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subject to the same mutual duties of sincere cooperation as those that govern relations between Member States and the Community institutions.¹⁴⁸ It is of vital importance for the harmonious further development of Community external relations. However, it has not always proven to be up to the task, as the negotiations regarding the FAO have shown.¹⁴⁹ The Community’s position in the FAO gave the Court the opportunity to give its clearest outline of the duty of cooperation to date.¹⁵⁰ The most crucial affirmation for the purposes of this study is that the Court considered Section 2.3 of an Arrangement the Commission and the Council had made regarding the exercise of membership rights in the FAO¹⁵¹ to be a fulfilment of the duty of cooperation between the Community and the Member States. The terms of the Arrangement also made it clear that the two institutions intended to enter into a binding agreement with each other. The Court concluded that by giving the Member States the right to vote, the Council acted in breach of Section 2.3 of the Arrangement, which it was required to observe.¹⁵² The Court thus sanctioned a form of inter-institutional agreement that had the appearance of pertaining to the horizontal division of competences—it had been concluded between the Council and the Commission—but in fact concerned the vertical division of competences. It thus seemed to regard the Council as the lawful representative of the Member States, instead of a Community institution. It none the less remains a question whether such an agreement is binding on the Member States, and hence whether it would be enforceable.¹⁵³ Nevertheless, important in the Court’s reasoning is that the Arrangement was given normative content through the duty of cooperation. However, while being its most enlightening outline of the duty of cooperation, the Court still left many aspects of it in a rather obscure state.¹⁵⁴ ¹⁴⁸ Case 204/86 Greece v Council [1988] ECR 5323, para 16; Case C-65/93 European Parliament v Council [1995] ECR I-643, para 23; see also the Opinion of Léger AG in Joined Cases C-317/04 and C-318/04 European Parliament v Council and Commission [2006] ECR I-4721, point 272. ¹⁴⁹ D O’Keeffe, ‘Exclusive, Concurrent and Shared Competence’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 199. ¹⁵⁰ Case C-25/94 Commission v Council [1996] ECR I-1469. ¹⁵¹ For the text of the Arrangement: Opinion of Jacobs AG in Case C-25/94 Commission v Council [1996] ECR I-1469, points 12–13. ¹⁵² Case C-25/94 Commission v Council [1996] ECR I-1469, paras 49–50. ¹⁵³ cf P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 214, who also lists a number of other questions remaining after the judgment. The Court had referred to Section 2.3 of the Arrangement between the Council and the Commission as the ‘fulfi lment of that duty of cooperation between the Community and its Member States within the FAO’ (emphasis added): Case C-25/94 Commission v Council [1996] ECR I-1469, para 49. C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 108 suggests that it would not be a fulfi lment of that duty had the Arrangement not bound the Member States as well. ¹⁵⁴ cf J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001) 65–66.

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The duty of cooperation can also enter into the process of ratification of a mixed agreement. One could argue that if a Member State has signed an agreement and then holds back ratification, it is in fact breaching the duty of cooperation. The reply from a Member State perspective would be that internal constitutional procedures need to be respected before it can proceed to ratification. Eeckhout rightly suggests that one should look at the reasons behind the delay. If the delay is caused by the fact that the Member State is respecting its own constitutional procedure, for example with regard to the involvement of federated entities in the ratification process, it should not be seen as an infringement of the duty of cooperation. If, however, the delay is wholly caused by, for example, the fact that it is attempting to extract some last-minute concessions, this would show a lack of respect for the duty of cooperation, and would probably constitutes an infringement of that duty.¹⁵⁵ Article 10 EC also imposes certain procedural requirements.¹⁵⁶ Th is follows, for example, from the judgments in two infringement proceedings brought against Luxembourg and Germany. The Council had authorized the Commission to negotiate a multilateral agreement on the rules applicable to the transport of passengers and goods by inland waterway between the Community and a number of third countries. Notwithstanding this, Luxembourg and Germany decided to negotiate their own bilateral agreements with the third countries concerned on the same subject-matter.¹⁵⁷ The Commission brought an action against them and the Court held that Luxembourg, by having negotiated, concluded, ratified and arranged for the entry into force of the contested bilateral agreements, and Germany, by ratifying and implementing the contested agreements, neither Member State having cooperated or consulted with the Commission, had infringed Article 10 EC.¹⁵⁸ The situation thus bore a certain similarity to the one in Opinion 1/76, where no legal instrument had yet been adopted, but a proposal for a regulation was to be submitted to the Council by the Commission.¹⁵⁹ However, in these infringement proceedings against Luxembourg and Germany, the Court held that the Commission’s claim that the Community had acquired exclusive external competence, as defined by the ERTA judgment, in the area governed by the contested bilateral agreements ¹⁵⁵ P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 216, fn 98 cites the example of Italy and Greece, who in the negotiations on trade with South Africa attempted to extract concessions, respectively with regard to grappa and ouzo. ¹⁵⁶ cf M Cremona, ‘Community Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 326–328. ¹⁵⁷ Case C-266/03 Commission v Luxembourg [2005] ECR I-4805, paras 16–24 and Case C-433/03 Commission v Germany [2005] ECR I-6985, paras 16–24. ¹⁵⁸ Case C-266/03 Commission v Luxembourg [2005] ECR I-4805, para 66 and Case C-433/03 Commission v Germany [2005] ECR I-6985, para 73. ¹⁵⁹ Opinion 1/76 Draft Agreement establishing a European laying-up fund for inland waterway vessels [1977] ECR 741, para 4.

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was unfounded.¹⁶⁰ The Court was also clearly not adopting the Commission’s argument in Opinion 1/94 that implied external competences should automatically be regarded as exclusive. Instead, the Court directly applied Article 10 EC. The Court also held that the ‘duty of genuine cooperation’ is of general application and depends neither on whether the Community competence concerned is exclusive, nor on any right of the Member States to enter into obligations towards non-Member States.¹⁶¹ Similarly, as mentioned above, the Court held in the Mox Plant judgment that by bringing proceedings under the UNCLOS dispute-settlement system, without having first informed and consulted the competent Community institutions, Ireland had failed to comply with its duty of cooperation under Articles 10 EC and 192 EURATOM.¹⁶² As argued by Hillion and Wessel, this logic could be transposed to the CFSP and could thus oblige the Member States to inform and consult the EU institutions as soon as an EU concerted action at international level emerges.¹⁶³ It could be argued that by emphasizing the duty of cooperation, the principle of loyalty, and the requirement of unity in the international representation of the Community, the Court embraces a conception of non-exclusive competence, and hence of mixity, which is not confined to external competences of the Member States and the Community in juxtaposition, but rather of a truly ‘shared’ competence, with regard to which the Community and the Member States need to cooperate and coordinate.¹⁶⁴ One should, however, be wary of drawing any conclusions from this for the vertical division of competences. As La Pergola AG remarked in his Opinion in Portugal v Council: ‘Coordination in fact requires that the bodies providing it should enjoy equal standing.’¹⁶⁵ A mixed agreement will still involve matters that fall within the Community’s exclusive or non-exclusive competence and others that fall within the Member States’ competences, with each retaining the final say in their respective fields.¹⁶⁶ The legal obligations for the Member States and the Community flowing from the duty of cooperation are potentially quite far-reaching and have a wide ¹⁶⁰ Case C-266/03 Commission v Luxembourg [2005] ECR I-4805, para 51 and Case C-433/03 Commission v Germany [2005] ECR I-6985, para 53. ¹⁶¹ Case C-266/03 Commission v Luxembourg [2005] ECR I-4805, para 58 and Case C-433/03 Commission v Germany [2005] ECR I-6985, para 64. ¹⁶² Case C-459/03 Commission v Ireland [2006] ECR I-4635, para 182. ¹⁶³ C Hillion and RA Wessel, ‘Restraining External Competences of EU Member States under CFSP’ in M. Cremona and B. De Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (forthcoming (2008)). Further on loyalty within the CFSP: ch 7.3.3. ¹⁶⁴ Similarly: P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 215, who also describes the duty of cooperation as the ‘overarching legal principle governing mixity’: ibid, 209; cf M Cremona, ‘External Relations and External Competence: The Emergence of an Integrated Policy’ in P Craig and G de Búrca (eds), The Evolution of EU Law (1999) 158 and 170. ¹⁶⁵ Opinion in Case C-268/94 Portugal v Council [1996] ECR I-6177, point 19. ¹⁶⁶ J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001) 46–48 and 67.

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scope.¹⁶⁷ They apply both when Community and Member State competences are inextricably linked, and when each is exercising its own competence with regard to a certain agreement. The duty of cooperation will apply in any situation in which ‘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’.¹⁶⁸ The Member States’ choice to include, in a mixed agreement, provisions relating to their own powers carries with it a responsibility, if not a commitment, vis-à-vis the Community to comply with obligations derived from these provisions. Even when acting in a field outside the scope of Community law, Member State actions affecting the Community could be considered contrary to the obligation to abstain from any measure which would jeopardize the attainment of the objectives of the EC Treaty and to take appropriate measures to ‘facilitate the achievement of the Community’s tasks’.¹⁶⁹ Moreover, ensuring compliance with obligations set out in mixed agreements contributes to ensuring consistency in the external activities of the Union.¹⁷⁰ As pointed out by Dashwood, discovering the limits of Community competences is not the same as discovering the limits of the EC Treaty’s scope of application: ‘duties or disabilities for the Member States do not necessarily imply correlative powers for the Community’.¹⁷¹ The duty of cooperation makes this quite clear. Member States and the Community institutions are within their respective spheres of competence, under a mutual obligation to cooperate, derived from the EC Treaty. For example, in the Étang de Berre judgment, the Court assumed jurisdiction to assess France’s compliance with provisions of mixed agreements not covered by internal Community legislation on the basis that the agreements in question created ‘rights and obligations in a field covered in large measure by Community legislation’. Hence, the Court held, there is a Community interest in compliance by both the Community and its Member States with the commitments entered into under those instruments.¹⁷² ¹⁶⁷ C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 109–114. ¹⁶⁸ eg Ruling 1/78 Draft Convention of the International Atomic Energy Agency on the Physical Protection of Nuclear Materials, Facilities and Transports [1978] ECR 2151, paras 34–36; Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work [1993] ECR I-1061, para 36; Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property [1994] ECR I-5267, para 108; Opinion 2/00 [Cartagena Protocol] [2001] ECR I-9713, para 18. ¹⁶⁹ Art 10 EC; see eg 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, para 119. ¹⁷⁰ C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 127–129. ¹⁷¹ AA Dashwood, ‘The Limits of European Community Powers’ (1996) 21 ELR 114, referring to WN Hohfeld’s analysis of the notion of legal rights in Fundamental Legal Conceptions as Applied in Judicial Reasoning (1919), but pointing out that this analysis is only partially applicable to relations in public law. ¹⁷² Case C-239/03 Commission v France [2004] ECR I-9325, paras 27–31; cf M Cremona, ‘Community Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States:

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7.3.3 Loyalty in the Union As noted with respect to the implications of the Pupino judgment for the application of a general duty of loyal cooperation throughout the entire EU legal order, Article 11(2) EU introduces a similar obligation with regard to the CFSP.¹⁷³ It urges the Member States to support the Union’s external and security policy ‘actively and unreservedly in a spirit of loyalty and mutual solidarity’. The Member States also have to work together ‘to enhance and develop their mutual political solidarity’, and are told to ‘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’. The first part of this prohibition can only be meaningful if the Union’s interests have been sufficiently clearly determined in any specific situation. It is difficult to see how the second part of the prohibition can be an enforceable legal obligation, unless it means that, whenever the Union has managed to take cohesive action on the international stage, the Member States are prohibited from adopting any measure liable to impair such action.¹⁷⁴ The Council is given the task of ensuring that these principles are complied with, a task somewhat facilitated by the fact that national civil servants are involved in CFSP decision-making (through COREPER and the Political and Security Committee (PSC)) and that Council decisions have to be adopted by unanimity.¹⁷⁵ Van Gerven notes that the principle of loyal cooperation functions well in daily practice, mainly because of COREPER and the Council’s General Secretariat.¹⁷⁶ Nuttall, however, argues that the Council is not very interested in actively ensuring that the principles of Article 11(2) EU are complied with, and suggests that the drafters of the EU Treaty were ‘more concerned with providing the member states with ways of avoiding their obligations’.¹⁷⁷ Owing to the lack of jurisdiction of the Court of Justice over Title V of the EU Treaty,¹⁷⁸ no judicial review is possible within the EU legal order of Member States’ compliance with the principle of loyal cooperation in Article 11(2) EU. However, in light of the Pupino judgment,¹⁷⁹ it is strongly arguable that the principle of loyal cooperation applies over EU law in its entirety¹⁸⁰ and can give rise to Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 338–339. ¹⁷³ cf ch 6.2. See the Opinion of Mazák AG in Case C-203/07 P Greece v Commission [2007] OJ C155/10, fn 33, who argues that Art 11(2) EU reflects the existence of a strengthened obligation to act in good faith which, as regards the Community, is reflected in the obligation of loyal cooperation contained in Art 10 EC. ¹⁷⁴ cf P Koutrakos, EU International Relations Law (2006) 388–389, who criticizes Art 11(2) EU for being ‘as meaningless as it is puzzling’. ¹⁷⁵ cf K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 905, para 22-009; see ch 4.3.3.3. ¹⁷⁶ W van Gerven, The European Union: A Polity of States and Peoples (2005) 364. ¹⁷⁷ S Nuttall, ‘Coherence and Consistency’ in C Hill and M Smith (eds), International Relations and the European Union (2005) 107. ¹⁷⁸ Art 46 EU. ¹⁷⁹ Case C-105/03 Criminal proceedings against Maria Pupino [2005] ECR I-5285. ¹⁸⁰ In that sense also eg D Chalmers, C Hadjiemmanuil, G Monti, and A Tomkins, European Union Law: Text and Materials (2006) 194.

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the application of the duty of consistent interpretation in the CFSP. Individuals may invoke the duty of consistent interpretation before their national courts, in order to have Member States’ measures reviewed for compliance with CFSP measures. What is to be done should a situation arise in which the Member States’ obligation to cooperate with the Community clashes with the principle of loyalty within the sphere of the CFSP? As argued by Hillion, while a conflict should, under the current constitutional structure, be resolved to the advantage of the Community, CFSP rules may nevertheless affect Community rules, without necessarily violating Community law.¹⁸¹ If a CFSP measure involves negative consequences for the Community, the duty of cooperation under Community law would probably be violated. Member States are, however, equally bound by CFSP objectives and measures, which also contribute to the fulfilment of the general objective of asserting the Union’s identity on the international scene.¹⁸² Moreover, the duty of cooperation also binds the Community institutions vis-àvis the Member States.¹⁸³ The principle of loyal cooperation is given further substance by the so-called ‘information and consultation principle’ as laid down in Article 16 EU. The latter can be regarded as a concretization of Article 12 EU’s determination that the Union will pursue the CFSP objectives by strengthening systematic cooperation between Member States in the conduct of policy.¹⁸⁴ In its current form, this provides that the Member States have to inform and consult one another within the Council ‘on any matter of foreign and security policy of general interest in order to ensure that the Union’s influence is exerted as effectively as possible by means of concerted and convergent action’,¹⁸⁵ an obligation more honoured in the breach than the observance. When sensitive foreign policy issues are at stake, the Member States tend to act without any consultation; or if they do feel the need to consult, often set up ad hoc ‘contact groups’ on the issues at hand.¹⁸⁶ ¹⁸¹ C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 131. ¹⁸² Ibid, 133. ¹⁸³ Case 230/81 Luxembourg v European Parliament [1983] ECR 255, para 37. ¹⁸⁴ Systematic cooperation in itself is a codification of a practice that existed already under the EPC; further: S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 182–187; RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 101. Further on the advantages and disadvantages of systematic cooperation: S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 227–235. ¹⁸⁵ Further on the information and consultation principle as it operates under the EU Treaty: RA Wessel, ‘The multilevel constitution of European foreign relations’ in N. Tsagourias (ed.), Transnational Constitutionalism: International and European Perspectives (2007) 179–181. On the importance of information-sharing for the prospects of international cooperation and further institutionalization: M Smith, Europe’s Foreign and Security Policy: The Institutionalization of Cooperation (2004) 42–43 and 90–116. ¹⁸⁶ cf eg C Hill, ‘Renationalizing or Regrouping? EU Foreign Policy Since 11 September 2001’ (2004) 42 J of Common Market Studies 143–163, who mentions, for example that Blair, Chirac, and Schroeder held their own meeting before the Ghent European Council on 20 October 2001,

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However, Dashwood’s remark that ‘discovering the limits of Community competences is not the same as discovering the limits of the EC Treaty’s scope of application’¹⁸⁷ could mutatis mutandis also be applied to CFSP competences: the scope of application of CFSP provisions is not coextensive with Union competences under Title V EU Treaty. The Member States are equally required to cooperate and consult each other in areas of foreign policy falling within their own competences.¹⁸⁸ A particular aspect of loyal cooperation is the obligation for the Member States to coordinate their action in international organizations and at international conferences, and to uphold the common positions in such forums,¹⁸⁹ including in those where not all the Member States take part.¹⁹⁰ In the latter case, the participating Member States have to keep the others informed of any matter of common interest.¹⁹¹ Member States that are also members of the UN Security Council will ‘concert’ and keep the other Member States fully informed, and permanent members (viz the UK and France) are under an obligation to ensure the defence of the positions and the interests of the Union in the execution of their functions, without prejudice to their responsibilities under the provisions of the United Nations Charter.¹⁹² The EU Treaty also requires the Member States to coordinate their diplomatic activities. The diplomatic and consular missions of the Member States and the Commission delegations in third countries and international conferences, and their representations to international organizations, are under an obligation to cooperate in ensuring that the common positions and joint actions adopted by the Council are complied with and implemented.¹⁹³ Moreover, the diplomatic missions have to ‘step up cooperation’ by exchanging information, carrying out joint assessments and contributing to the implementation of the right of every EU citizen to protection by the diplomatic or consular authorities of any Member State in the territory of a third country in which the Member State of which he/she is a national is not represented on the same conditions as the nationals of that State. The Member States are required to establish the necessary rules among themselves and start the international negotiations required to secure this protection.¹⁹⁴ The Member States have shown willingness to organize diplomatic cooperation beyond these Treaty obligations. For example, when a Member State and tried to repeat the exercise, despite the previous protests from those excluded, in London on 4 November 2001. Cf RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 102–104. ¹⁸⁷ AA Dashwood, ‘The Limits of European Community Powers’ (1996) 21 ELR 114. ¹⁸⁸ Similarly: R Torrent, ‘The “Fourth Pillar” of the European Union After The Amsterdam Treaty’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 223, fn 4. ¹⁸⁹ Further: E Denza, The Intergovernmental Pillars of the European Union (2002) 160–163. ¹⁹⁰ Art 19(1) EU. ¹⁹¹ Without prejudice to Arts 19(1) and 14(3) EU. ¹⁹² Charter of the United Nations, 26 June 1945, 59 Stat. 1031; TS 993; 3 Bevans 1153; Art 19(2) EU. ¹⁹³ Art 20, para 1 EU. ¹⁹⁴ Arts 20, para 2 EU and 20 EC.

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breaks off diplomatic relations with a third country, it will usually ask another Member State to protect its interests under Article 45 of the Vienna Convention on Diplomatic Relations.¹⁹⁵ Member States have also started using ‘co location of embassies’, which implies Member States sharing embassy premises, but not normally the diplomatic personnel.¹⁹⁶

7.3.4 Loyalty under the Treaty of Lisbon Under the Treaty of Lisbon, solidarity would become a more prominent feature of the Union’s foreign policy¹⁹⁷ and of the Union in general.¹⁹⁸ Indeed, the entire basis of the conduct of the CFSP would be the development of mutual political solidarity among the Member States, the identification of questions of general interest, and the achievement of an ever-increasing degree of convergence of Member States’ actions.¹⁹⁹ The principle of loyal cooperation, repackaged as ‘sincere cooperation’,²⁰⁰ would require the Union and the Member States to, ‘in full mutual respect, assist each other in carrying out tasks which flow from the Treaties’. Moreover, ‘[t]he Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.’ The principle of sincere cooperation would be applicable over the entire spectrum of the Union’s competences. Notwithstanding that, New Article 24(2) EU²⁰¹ still contains a slightly amended version of the current loyalty principle in Article 11(2) EU. Given that the principle of sincere cooperation would also operate within the CFSP, the specific loyalty principle applicable to the CFSP is probably an unnecessary duplication.²⁰² The CFSP information and consultation principle as formulated in New Article 32 EU²⁰³ would be a significant reinforcement of the obligation as it exists ¹⁹⁵ 18 April 1961, 500 UNTS 95; 23 UST 3227; 55 AJIL 1064 (1961); see E Denza, Diplomatic Law: A Commentary on the Vienna Convention on Diplomatic Relations (1998) 400–401. ¹⁹⁶ E Denza, The Intergovernmental Pillars of the European Union (2002) 166. ¹⁹⁷ See New Arts 3(5), 21(1), 24(2) and (3), 31(1), para 2, and 32 EU and Art 222 TFEU (cf Arts I-3(4), I-16(2), I-40(1) and (5), I-43, III-292(1), III-294(2), III-300(1), para 2, and III-329 TC). ¹⁹⁸ See New Arts 2 and 3(3), paras 2 and 3 EU, Arts 67(2) and 80 TFEU, and Title IV of the Charter of Fundamental Rights of the European Union (cf the second recital to the TC-preamble; Arts I-2 and I-3(3), paras 2–3 TC; Part II, Title IV TC; Arts III-257(2) and III-268 TC). ¹⁹⁹ New Art 24(2) EU (cf Art I-40(1) TC). ²⁰⁰ New Art 4(3) EU (cf Art I-5(2) TC). ²⁰¹ cf Art I-16(2) TC. ²⁰² Similarly: C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 234. ²⁰³ cf Art I-40(5) TC.

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under the current Article 16 EU. In particular, the explicit prohibition for the Member States to undertake any action that could affect the Union’s interests without prior consultation, in the European Council or the Council, would seem to give extra ‘teeth’ to the information and consultation principle.²⁰⁴ It is not surprising that this strengthening of the information and consultation principle attracted some criticism. The UK’s representative in the Convention proposed simply to delete it.²⁰⁵ Denza goes as far as arguing that ‘this undertaking in article I-39(5)[DTC] cannot be reconciled with independent nation status which implies the inherent right to defend the State and to take external actions provided that these are not in conflict with binding international obligations’.²⁰⁶ The development of the CFSP clearly challenges the traditional concept of sovereignty as for example defended by the Bundesverfassungsgericht in its ‘Maastricht’ judgment.²⁰⁷ It certainly challenges the latter court’s conception of the Union as a whole, which it did not regard as an independent legal subject, but as ‘the designation for the member-States acting jointly’;²⁰⁸ that was already a misconception at the time the judgment was rendered. However, the Treaty of Lisbon would not mean the end of the Member States as independent nation States. A requirement ²⁰⁴ cf AA Dashwood, ‘The Relationship Between the Member States and the European Union/ European Community’ (2004) 41 CML Rev 380, who wondered (regarding the information and consultation principle as laid down in Article I-40(5) TC) what would have happened if, ‘purely hypothetically’, the government of a Member State were to have joined a third country in military action overseas without having first formally consulted its European partners, and specifically whether the application of the primacy principle to the CFSP (as per Art I-6 TC) could have implied that it could have been argued in a domestic court of one of the Member States that the action was illegal. Such an argument could indeed have been made under certain conditions. Article I-40(5) TC would not have stood in the way of judicial review of the action of the Member State concerned: it appeared to be self-sufficient, in that it imposed a clear and unconditional obligation. Similarly: DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 277, who noted that ‘the scope for embarrassment to Member State governments is indeed wide’. Further on self-sufficiency: M Bossuyt and J Wouters, Grondlijnen van internationaal recht (2005) 157–163. ²⁰⁵ Suggestion for Amendment of Article I-39 [DTC], by Mr Hain, available online at . ²⁰⁶ E Denza, ‘Lines in the Sand: Between Common Foreign Policy and Single Foreign Policy’ in T Tridimas and P Nebbia (eds), European Union Law for the Twenty-First Century: Rethinking the New Legal Order. Vol. 1: Constitutional and Public Law. External Relations (2004) 269. ²⁰⁷ 2 BvR 2134/92 & 2159/92 of 12 October 1993, Manfred Brunner and others v The European Union Treaty [1994] 1 CMLR 57, paras 16–18 and 52–57. Similarly: A Albi and P Van Elsuwege, ‘The EU Constitution, National Constitutions and Sovereignty: An Assessment of a “European Constitutional Order”’ (2004) 29 ELR 752. The judgment appeared to be rooted in the idea that democracy cannot be conceived outside the Nation State (A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (2002) 21), and hence that ‘the political and national unit should be congruent’ (definition of nationalism in E Gellner, Nations and Nationalism (2006) 1): see eg 2 BvR 2134/92 & 2159/92 of 12 October 1993, Manfred Brunner and others v The European Union Treaty [1994] 1 CMLR 57, para 44. The Bundesverfassungsgericht has abandoned its position in Brunner: see 2 BvL 1/97 of 7 June 2000 (on which see CJ Tams, ‘German Constitutional Court Bows To Europe’ (2001) 60 CLJ 256–259) and 1 BvR 1036/99 of 3 January 2001. Further: A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (2002) 87–89. ²⁰⁸ 2 BvR 2134/92 & 2159/92 of 12 October 1993, Manfred Brunner and others v The European Union Treaty [1994] 1 CMLR 57, para 67.

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to consult before foreign policy action is taken, and to endeavour to come to a common approach, seems perfectly compatible with independent nation status. What legal effects would the solidarity principle have? Once the European Council or the Council have defined a common Union approach within the meaning of New Article 32 EU, the HRUFASP and the Member States’ Ministers for Foreign Affairs would have to coordinate their activities within the Council.²⁰⁹ Moreover, the Member States’ diplomatic missions and the Union delegations in third countries and at international organizations would have to cooperate and to contribute to formulating and implementing the common approach.²¹⁰ Those are significant requirements. While no specific sanctions have been provided for disregarding a common approach, the Member State concerned would probably be subjected to significant peer-pressure; indeed, any Member State would surely think twice before departing from a common approach agreed within the Union in violation of New Article 32 EU.²¹¹

7.4 Conclusions The Union manages the vertical division of external relations competences through a combination of pragmatism, exemplified by the technique of mixity, and of principle, most importantly the principle of loyal cooperation. Mixed agreements remain a fundamental characteristic of the Community’s external relations; and, notwithstanding the criticisms formulated above, they are to be regarded as a pragmatically justified way of solving the problem of international representation in a multi-layered constitutional order such as the Community/Union.²¹² Indeed, Koutrakos suggests that it could be deduced ²⁰⁹ New Art 32, para 2 EU (cf Art III-301(1) TC). ²¹⁰ New Art 32, para 3 EU (cf Art III-301(2) TC). ²¹¹ cf DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 257–258 (referring to the Constitution). The solidarity principle differs from the duty of sincere cooperation in New Art 4(3) EU (cf Art I-5(2) TC). While the latter obliges the Member States to assist each other in carrying out tasks flowing from the Treaties, the former operates independently of the exercise of Union competences. An important new feature of solidarity between the Member States can be found in the solidarity clause of New Art 222 EU (cf Art I-43 TC), which provides for the Union and its Member States to ‘act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or manmade disaster’. The Union is to ‘mobilise all the instruments at its disposal, including the military resources made available by the Member States’. Moreover, should a ‘Member State be the object of a terrorist attack or the victim of a natural or man-made disaster’, the other Member States are to assist it at the request of its political authorities. ‘To that end, the Member States shall coordinate between themselves in the Council.’ For further analysis of the equivalent clause in Art I-43 TC: ibid, 254–255. ²¹² cf AA Dashwood, ‘Opinion 2/00, Cartagena Protocol on Biosafety’ (2002) 39 CML Rev 367–368; cf the Opinion of Ruiz-Jarabo Colomer AG in Case C-431/05 Merck Genéricos Produtos Farmacêuticos [2006] OJ C36/22, point 1, citing AA Dashwood, ‘Why Continue to Have Mixed Agreements at All?’ in JHJ Bourgeois, JL Dewost, and MA Gaiffe (eds), La Communauté européenne et les accords mixtes: Quelles perspectives? (1997) 98.

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from the fact that the Court’s reasoning in Opinion 2/91²¹³ starts from the rebuttable presumption that Member States can participate in the conclusion of an international agreement, that mixity is the rule in Community treatymaking.²¹⁴ Member States are free to enter into an international agreement next to the Community, as long as the latter’s competence is not exclusive, and their motivation for wanting to participate is not artificial. It would not be permissible for Member States to enter into an international agreement alongside the Community if the essential objective of the agreement falls within a nonexclusive competence that the Community had decided to exercise in practice. The only way for the Member States to get round this would be if it could be shown that there would be no possibility of common rules being affected in the sense of the ERTA principle.²¹⁵ Mixity is a clear expression of the position the Community occupies somewhere on the spectrum between a traditional international organization and a federal state.²¹⁶ The Community and the Member States together conclude mixed agreements, which does not necessarily imply a weakening of the strength inherent in united action: ‘Mixity offers instead a different way in the search for unity and the respect for state interests and autonomy.’²¹⁷ It also has the advantage of combining the knowledge and expertise, as well as the diplomatic and intelligence resources, of all the Member States with those of the Community.²¹⁸ Indeed, it might not be too far-fetched to describe it as the ‘first authentic expression of a veritable federal foreign policy’.²¹⁹

²¹³ Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work [1993] ECR I-1061. ²¹⁴ P Koutrakos, EU International Relations Law (2006) 105. ²¹⁵ cf J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001) 68. See chs 1.3.5 and 2.3.2.2. ²¹⁶ cf JHH Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ and Other Essays on European Integration (1999) 131–132, who refers to the Community as occupying an intermediate position between an international organization and a state; cf ibid, 159: ‘. . . [T]he non-unitary actor is an irritating nuisance from the point of view of international law and the international legal order, dominated as they are by unitary states.’ Cf J Crawford, The Creation of States in International Law (2006) 495, who refers to the EU as going ‘well beyond the model of an international organisation coordinating areas of State policy’, and as having ‘marked confederal features’. For a thought-provoking comparative study, see L Friedman Goldstein, Constituting Federal Sovereignty (2001), who compares the EU to the Dutch Union of the 17th century, the USA from the 1787 Constitution to the Civil War, and the first half-century of the modern Swiss federation, beginning in 1848. ²¹⁷ JHH Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ and Other Essays on European Integration (1999) 185. ²¹⁸ M Smith, ‘Implementation: Making the EU’s International Relations Work’ in C Hill and M Smith (eds), International Relations and the European Union (2005) 159–160. ²¹⁹ JHH Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ and Other Essays on European Integration (1999) 134; cf R Torrent, ‘The “Fourth Pillar” of the European Union After The Amsterdam Treaty’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 235; and A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (2002) xii, who describes the Union as ‘a radicalisation of the federal ideal’.

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The principle of loyalty is of great significance, both for the constitutional structure of the Union as a whole and for the Union’s external relations. The principle ensures the autonomous operation of EU law, underscores primacy, and ensures the effective functioning of EU law outside situations of direct conflict between EU and Member State law.²²⁰ The Community, and by extension the Union, thus guarantees the maintenance of the realities of States and individual interests of all kinds, while also seeking to achieve a ‘unified modus operandi’. It does so through an obligation of solidarity.²²¹ The Treaty of Lisbon would further emphasize the importance of loyal cooperation and solidarity. However, there should be no misunderstanding as to the reason why the word solidarity is so lavishly strewn across the Treaty of Lisbon’s provisions regarding foreign policy in general and the CFSP in particular. ‘Solidarity’, as Scannell remarked regarding the Constitution, ‘is the approach taken . . . in precisely those areas in which a “top-down”, supranational approach is recognized to be inappropriate . . . The essence of solidarity is that it is not so much aimed at Member States which are willing to act as it is to those which are not.’²²²

²²⁰ cf A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (2002) 305. Further: K Lenaerts, ‘Le devoir de loyauté Communautaire’ in J Verhoeven (ed.), La Loyauté: mélanges off erts à Etienne Cerexhe (1997) 229–247. Cf C Hillion and RA Wessel, ‘Restraining External Competences of EU Member States under CFSP’ in M. Cremona and B. De Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (forthcoming (2008)), who argue that the loyalty principle in Art 11(2) EU ‘appears to underpin the whole development of CFSP’. ²²¹ Opinion of Tesauro AG in Case C-53/96 Hermès International v FHT Marketing Choice [1998] ECR I-3603, point 21. On the role of the Court in this balancing act, specifically with regard to mixed agreements: P Koutrakos, EU International Relations Law (2006) 183–215. ²²² DL Scannell, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (2005) 256.

8 Managing the Horizontal Axis 8.1 Introduction The problem of horizontal consistency arises because of ‘the original sin of overall EU external action’:¹ the separation of ‘high politics’ from the other aspects of foreign policy, most notably the entire area of external economic policy. How does the separation between the different aspects of foreign policy work legally, and is it tenable from a constitutional perspective? After a general examination of the horizontal aspect of the principle of consistency, the shifting border between Community external relations and the CFSP will be illustrated by the analysis of two case-studies, followed by a short section on the possibility of cross-pillar mixity.

8.2 Horizontal Consistency or Divide et Impera? The Relationship Between Community External Relations and the CFSP The Union is founded on the Community, ‘supplemented by the policies and forms of cooperation’ established by the EU Treaty.² Article 2 EU specifies that one of the objectives of the Union is to maintain in full the acquis communautaire and build on it with a view to considering to what extent the policies and forms of cooperation introduced by the EU Treaty may need to be revised with the aim of ensuring the effectiveness of the mechanisms and the institutions of the Community. Article 47 EU governs the relationship between the first pillar on the one hand, and the second and third pillars on the other. It is designed to preserve the integrity of the Community order and provides that nothing in the EU Treaty can affect ‘the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying or supplementing them’. However, Article 47 EU ¹ P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 145, who also refers to the emphasis on consistency as ‘something of a subterfuge, an attempt to cover up inter-institutional strife, to throw a constitutional blanket on the struggles between the Council and the Commission, not to mention the Parliament.’: ibid, 153. ² Art 1, para 3 EU.

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needs to be regarded in its context,³ and heed should be paid to other EU Treaty provisions,⁴ especially Article 2 EU’s aim of asserting the Union’s ‘identity on the international scene’ and Article 3 EU: consistency and continuity in the EU’s policies are to be ensured through the operation of the single institutional framework, which respects and builds upon the acquis communautaire.⁵ This obligation to preserve the acquis communautaire, like the duty of cooperation, stems from the requirement of Member States and institutions’ loyalty visà-vis the Community.⁶ As the Court held in the Airport Transit Visas,⁷ Environmental Penalties,⁸ and Ship-Source Pollution⁹ cases, this implies that third pillar measures may not encroach upon the powers conferred by the EC Treaty on the Community. While they concerned the relationship between the first pillar and the third pillar, the Court’s reasoning in those cases also applies to the relationship between the first pillar and the second pillar.¹⁰ The Court removed all doubt in that respect in its judgment in the Small Arms and Light Weapons case, where it simply held that under Article 47 EU, ‘none of the provisions of the EC Treaty is to be affected by a provision of the Treaty on European Union’ and that ‘therefore, the task of the Court [is] to ensure that acts which, according to the Council, fall within the scope of Title V of the [EU Treaty] and which, by their nature, are capable of having legal effects, do not encroach upon the powers conferred by the EC Treaty on the Community’.¹¹ The Court’s principled decision to review the joint action¹² in the Airport Transit Visas case, confirmed in the Environmental Penalties and Ship-Source Pollution cases as regards the third pillar, and in the Small Arms and Light Weapons case as ³ Art 31(1) Vienna Convention on the Law of Treaties. ⁴ cf also what was said on Art 11(1) EU in ch 4.2.2. ⁵ cf Advocate General Mengozzi who, in his Opinion in Case C-91/05 Commission v Council [2005] OJ C115/10, at point 121, held that although ‘the reference to the concept of acquis communautaire remains imprecise, it undoubtedly encompasses all the competences conferred upon the Community’. Further on the acquis communautaire: eg P Pescatore, ‘Aspects judiciaires de l’ “acquis communautaire”’ (1981) 17 Revue trimestrielle de droit européen 617–651; C Delcourt, ‘The Acquis Communautaire: Has the Concept had Its Day?’ (2001) 38 CML Rev 829–870; A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (2002) 144–149. ⁶ cf C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 142. ⁷ Case C-170/96 Commission v Council [1998] ECR I-2763, para 16. ⁸ Case C-176/03 Commission v Council [2005] ECR I-7879, para 39. ⁹ Case C-440/05 Commission v Council [2006] OJ C22/10, para 53. ¹⁰ See the Opinion of Mengozzi AG in Case C-91/05 Commission v Council [2005] OJ C115/10, points 31 and 56–60. Cf MG Garbagnati Ketvel, ‘The Jurisdiction of the European Court of Justice in Respect of the Common Foreign and Security Policy’ (2006) 55 ICLQ 88, who points out that an opportunity to verify this was missed in Case T-349/99 Miscovic v Council [removed from the register] and Case T-350/99 Karic and others v Council [removed from the register], which were both discontinued and removed from the register on 6 March 2001 after the Council amended the contested legal instrument. ¹¹ Case C-91/05 Commission v Council [2005] OJ C115/10, paras 32–33. ¹² Joint Action 96/197/JHA of 4 March 1996 adopted by the Council on the basis of Article K.3 of the Treaty on European Union on airport transit arrangements [1996] OJ L63/8.

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regards the second pillar, implies a different conception of the nature of the horizontal from the vertical division of competences.¹³ Nowhere in the judgment in the Airport Transit Visas case did the Court indicate that visa competences belong exclusively to the Community, and no other legally relevant circumstance points in that direction. Community competence for visas can thus be considered to be non-exclusive.¹⁴ Vertically, this signifies that Member States would be able to legislate on visas until the Community/Union has exercised its competence on the matter concerned. Not so, however, on the horizontal axis, where the position seems to be that no second or third pillar act may be adopted on matters within the scope of the EC Treaty, even if the Community competence in question is non-exclusive on the vertical axis. The Court confirmed this explicitly in the Small Arms and Light Weapons case.¹⁵ This would suggest that the rather sweeping attribution of competence in Article 11(1) EU, that the CFSP covers ‘all areas of foreign and security policy’, should be restricted to policy areas not covered by Community competences, such as the CCP or development cooperation.¹⁶ In that sense, Community external relations competences are lex specialis.¹⁷ For example, as the Court made clear in its judgment in the Small Arms and Light Weapons case, this means that even though development cooperation is an area where the Member State and Community competences are parallel, Article 47 EU would seem to prohibit action from being taken within the CFSP if the same action could be taken under Community development policy.¹⁸ That issue will be further examined below.¹⁹ Would it be possible for a CFSP measure to lay down binding directives for Community external action? For example, in 1994, the Council decided to adopt common positions on the situation in Rwanda and the Ukraine. In both cases, the Council had in mind a comprehensive measure, covering areas belonging to both the first and the second pillar. The Commission objected to the idea that it be required to act under Community competences integrated into a CFSP measure; while the Legal Service of the Council argued that the Commission’s ¹³ See, to that effect, the Opinions of Mazák AG in Case C-440/05 Commission v Council [2006] OJ C22/10, point 58 and of Mengozzi AG in Case C-91/05 Commission v Council [2005] OJ C115/10, points 99–100, 110, and 115. Cf P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 150. ¹⁴ cf the Opinion of Jacobs AG in Case C-316/91 European Parliament v Council [1994] ECR I-625, point 40; Art 4(2)(j) TFEU (cf Art I-14(2)(j) TC) puts the Community’s competences in the area of freedom, security, and justice in the category of shared competences. ¹⁵ Case C-91/05 Commission v Council [2005] OJ C115/10, para 61. ¹⁶ Case C-91/05 Commission v Council [2005] OJ C115/10, paras 58–63 and the Opinion of Mengozzi AG, point 122. The CFSP objectives in Art 11(1) EU seem already to hint at this, though not making it unequivocally clear: ch 4.2.2. ¹⁷ P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 151. ¹⁸ Case C-91/05 Commission v Council [2005] OJ C115/10, paras 58–63 and the Opinion of Mengozzi AG, point 116; see also to that effect, the Opinion of Mazák AG in Case C-440/05 Commission v Council [2006] OJ C22/10, point 53. ¹⁹ See ch 8.3.2.

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independence would not be impaired. To put an end to this domestic quarrel, the Council adopted a mode d’emploi for common positions.²⁰ This provided that common positions could indeed refer to the Union’s foreign policy as a whole, but in doing so must respect Article 3 EU, as well as the horizontal division of competences.²¹ The mode d’emploi has not, however, prevented the Council from adopting CFSP legal instruments that include obligations for the Community. An example is Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism,²² which puts an obligation on the Community ‘acting within the limits of the powers conferred on it by the Treaty establishing the European Community’.²³ Hillion notes that the provisional outcome of the battle, expressed in the mode d’emploi, suggests that common positions may cover all aspects of the external policy of the Union, and this in the name of consistency. However, they may not impose detailed obligations on Community institutions that could have the effect of limiting the discretionary power of the Commission, and would thus infringe Articles 2 and 47 EU.²⁴ Nevertheless, the Commission is under a legal obligation to ensure consistency in the Union’s external relations and to cooperate with the Council to that effect.²⁵ For its part, the Council avoids mandatory language. It ‘notes’ that the Commission intends to submit proposals for Community measures in support of CFSP acts, or invites the Commission to do so. For example, Article 8 of 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

²⁰ Doc. 5194/95 of 6 March 1995 (mode d’emploi for common positions), unpublished (content described in RA Wessel, ‘The Inside Looking Out: Consistency and Delimitation in EU External Relations’ (2000) 37 CML Rev 1154–1155 and in P Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law (2001) 45–46). ²¹ See CWA Timmermans, ‘The Uneasy Relationship Between the Communities and the Second Union Pillar: Back to the “Plan Fouchet”?’ (1996) Legal Issues of Eur Integration 63–64; P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 153. ²² [2001] OJ L344/93. ²³ Council Common Position 2001/931/CFSP, Arts 2–3; Other examples are Council Decision 93/729/CFSP of 20 December 1993 supplementing the joint action on support for the convoying of humanitarian aid in Bosnia-Herzegovina [1993] OJ L339/3; Council Decision 94/366/CFSP of 13 June 1994 on the Common Position defined by the Council on the basis of Article J.2 of the Treaty on European Union concerning prohibition of the satisfaction of the claims referred to in paragraph 9 of United Nations Security Council Resolution No 757 (1992) [1994] OJ L165/1; Common Position 95/413/CFSP of 2 October 1995 defined by the Council on the basis of Article J.2 of the Treaty on European Union on Angola [1995] OJ L245/1; Common Position 96/635/CFSP of 28 October 1996 defined by the Council on the basis of Article J.2 of the Treaty on European Union, on Burma/Myanmar [1996] OJ L287/1; Joint Action 96/669/CFSP of 22 November 1996 adopted by the Council on the basis of Article J.3 of the Treaty on European Union on the Great Lakes Region [1996] OJ L312/1; See RA Wessel, ‘The Inside Looking Out: Consistency and Delimitation in EU External Relations’ (2000) 37 CML Rev 1155–1156. ²⁴ C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 168. ²⁵ Art 3, para 2 EU.

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arms and light weapons and repealing Joint Action 1999/34/CFSP,²⁶ provides that the ‘Council notes that the Commission intends to direct its action towards achieving the objectives and the priorities of this Joint Action, where appropriate by pertinent Community measures.’ Another example is the joint action in support of the Bosnian Peace Process, which explicitly provides that ‘European Community additional measures in support of the new [Bosnian] Government should also be considered in the near future’ and this ‘in order to ensure the consistency of the Union’s external activities’.²⁷ In the same joint action, the Council notes that the Commission intends to come forward with proposals in support of the objectives of the joint action.²⁸ This also shows that the fact that Community aspects of foreign policy are not subordinate to the CFSP aspects does not preclude Community acts being adopted in implementation or further elaboration of CFSP instruments.²⁹ A famous example of this practice³⁰ is the economic sanctions regime.³¹ Strong interaction between first and second pillar external relations can also be seen in the Union’s action regarding the ‘Kimberley process’,³² which brings together the main diamond exporting, processing, and importing countries with representatives of the diamond industry and civil society in order to discuss and introduce measures to eliminate the market in ²⁶ [2002] OJ L191/1, at issue in Case C-91/05 Commission v Council [2005] OJ C115/10. ²⁷ Final Recital to Joint Action 98/117/CFSP of 2 February 1998 adopted by the Council on the basis of Article J.3 of the Treaty on European Union in support of the Bosnian Peace Process [1998] OJ L35/1. ²⁸ Ibid, Art 4. Other examples of the Council noting the Commission’s intention to submit proposals include Common Position 94/779/CFSP of 28 November 1994 defined by the Council on the basis of Article J.2 of the Treaty on European Union on the objectives and priorities of the European Union towards Ukraine [1994] OJ L313/1; Joint Action 96/656/CFSP of 11 November 1996 adopted by the Council on the basis of Article J.3 of the Treaty on European Union in support of the democratic transition process in Zaire [1996] OJ L300/1. ²⁹ cf S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 223–227, who argues that, at least during the first couple of years of their existence, joint actions where to a large extent dependent on Community external measures. This could range from a situation where joint actions were a mere political façade for predominantly Community measures, through joint actions that contained full-blown political measures but needed to be completed and supported by Community measures, to joint actions that needed to be implemented by Community measures (as is still the case with regard to a number of matters). ³⁰ For another example: Joint Action 96/668/CFSP of 22 November 1996 adopted by the Council on the basis of Articles J.3 and K.3 of the Treaty on European Union concerning measures protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom [1996] OJ L309/7 and Council Regulation (EC) 2271/96 of 22 November 1996 protecting against the effects of the extraterritorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom [1996] OJ L309/1. ³¹ See, however, Advocate General Mengozzi who, in his Opinion in Case C-91/05 Commission v Council [2005] OJ C115/10, at point 123, holds that the economic sanctions regime renders ‘Community action subordinate to that decided on in the framework of the CFSP’. On this regime and on the ‘dual-use goods’ regime, which used to be an example of this practice: P Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law (2001) 67–163; P Koutrakos, EU International Relations Law (2006) 419–448. ³² Named after the place in South Africa where the process was set in motion on 11–12 May 2000.

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conflict diamonds. The Council adopted Common Position 2001/758/CFSP of 29 October 2001 on combating the illicit traffic in conflict diamonds, as a contribution to prevention and settlement of conflicts,³³ and the Kimberley process was then further implemented in Council Regulation (EC) 2368/2002 of 20 December 2002 implementing the Kimberley Process certification scheme for the international trade in rough diamonds³⁴ without, however, referring to the common position. Common strategies illustrate the interaction between first and second pillar external relations, in that the common strategies to date (with regard to Russia, the Ukraine, and the Mediterranean, respectively) have been adopted alongside an EC-framework of international agreements with the same countries/regions.³⁵ Hillion has rightly argued that these common strategies have signalled a shift in the legal connection between first and second pillar external relations. Especially because of the overarching role of the European Council, Community external relations are increasingly subject to the objectives and instruments of the CFSP. By adopting a common strategy, the European Council, so to speak, mobilizes all existing and future EU instruments to help achieve the objectives set by the common strategy, thereby aiming to enhance the consistency of the Union’s external relations and enabling the EU to emerge as an international actor.³⁶ The common ³³ [2001] OJ L286/2. ³⁴ [2002] OJ L358/28, as most recently amended by Commission Regulation (EC) No 1226/2007 of 17 October 2007 amending Council Regulation (EC) No 2368/2002 implementing the Kimberley Process certification scheme for the international trade in rough diamonds [2007] OJ L277/7–9. ³⁵ Agreement on partnership and cooperation establishing a partnership between the European Communities and their Member States, of one part, and the Russian Federation, of the other part [1997] OJ L327/3; Partnership and co-operation agreement between the European Communities and their Member States, and Ukraine [1998] OJ L49/3; Accord créant une association entre la Communauté économique européenne et la Turquie—Protocole no 1: protocole provisoire— Protocole no 2: protocole fi nancier—Acte fi nal—Déclarations [1964] OJ 217 ; Euro-Mediterranean Agreements establishing an association between the European Communities and their Member States, of the one part, and, of the other part, the Republic of Tunisia [1998] OJ L97/2; the Kingdom of Morocco [2000] OJ L70/2; the State of Israel [2000] OJ L147/3; the Hashemite Kingdom of Jordan [2002] OJ L129/3; the Arab Republic of Egypt [2004] L304/39; the People’s Democratic Republic of Algeria [2005] OJ L265/2; see also the Euro-Mediterranean Interim Association Agreement on trade and cooperation between the European Community, of the one part, and the Palestine Liberation Organization (PLO) for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip, of the other part— Protocol 1 on the arrangements applying to imports into the Community of agricultural products originating in the West Bank and the Gaza Strip—Protocol 2 on the arrangements applying to imports into the West Bank and the Gaza Strip of agricultural products originating in the Community—Protocol 3 concerning the defi nition of the concept of “originating products” and methods of administrative cooperation—Final Act—Joint Declarations—Declaration by the European Community [1997] OJ L187/3; and the Interim Agreement on trade and Trade-related matters between the European Community, of the one part, and the Republic of Lebanon, of the other [2002] OJ L262/2. ³⁶ C Hillion, ‘Common Strategies and the Interface Between E.C. External Relations and the CFSP: Lessons of the Partnership Between the E.U. and Russia’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 287 and 296–297.

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strategies in that sense can be said to have a cross-pillar character.³⁷ It is, however, questionable whether the common strategies have attained their goal.³⁸ The authors of the Treaty were clearly aware that consistency would be both especially problematic and especially important in the external relations of the Union. Article 3, paragraph 2 EU therefore puts an obligation on the Union particularly to ensure the consistency ‘of its external activities as a whole in the context of its external relations, security, economic and development policies’. The Council and the Commission must cooperate to ensure this consistency, for the achievement of which they bear a special responsibility.³⁹ Under the Treaty of Lisbon, they would be assisted by the High Representative of the Union for Foreign Affairs and Security Policy (HRUFASP) in the fulfilment of this task.⁴⁰ The Court of Justice’s role in ensuring that the consistency-requirement is complied with is indirect. Given that Article 3 EU is not subject to the Court’s jurisdiction, the opportunity for the Court to take it into account is limited to its role in policing the borders, pursuant to Article 47 EU.⁴¹ Although it is not spelled out in the EU Treaty, the phrase ‘single institutional framework’ is commonly taken to refer to all the Community institutions (the European Parliament, the Council, the Commission, the Court of Justice, and the Court of Auditors)⁴² plus the European Council. The assertion that this single institutional framework performs the role of guarantor of the consistency of the Union’s policies could be interpreted as meaning that each of the institutions plays a significant role over the entire spectrum of the Union’s policies, including those of the second and the third pillar. This is hardly the case.⁴³ Curtin does not hesitate to label the concept of a single institutional framework as a fiction or as ‘mere lip-service to an ideal’.⁴⁴ The least one could say is that the roles of the institutions differ greatly between the pillars.⁴⁵ The institutions ³⁷ C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 187. ³⁸ See ibid, 182–193; see also ch 4.3.2.2 above. ³⁹ Art 3, para 2 EU then adds a sentence that has nothing really to do with the problem of consistency and merely points out that the Council and the Commission are responsible for the implementation of ‘these policies’ (presumably the ‘external relations, security, economic and development policies’), each in their sphere of competence. Regarding consistency in relation to enhanced cooperation: Art 45 EU; cf F Fink-Hooijer, ‘The Common Foreign and Security Policy of the European Union’ (1994) 5 Eur J Intl L 190, who opines that ensuring consistency in the external activities of the Union is the most important general task of the Commission under the EU Treaty. ⁴⁰ New Art 21(3), para 2 EU (cf Art III-292(3), para 2 TC). ⁴¹ cf RA Wessel, ‘The Inside Looking Out: Consistency and Delimitation in EU External Relations’ (2000) 37 CML Rev 1152. ⁴² cf Art 7(1) EC and Part V EC Treaty. ⁴³ See chs 5 and 6. ⁴⁴ DM Curtin, ‘The Constitutional Structure of the Union: A Europe of Bits and Pieces’ (1993) 30 CML Rev 27–30; cf S Vanhoonacker, ‘The Institutional Framework’ in C Hill and M Smith (eds), International Relations and the European Union (2005) 68. ⁴⁵ Although in essence the role of the Council remains the same, as it is the most important decision-making actor over the entire spectrum of Union competences: C Hillion, ‘The Evolving

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exercise their powers under the conditions and for the purposes provided for, on the one hand, by the provisions of the EC Treaty and, on the other hand, by the provisions of the EU Treaty.⁴⁶ They operate in accordance with the procedural rules provided by the legal basis under which they are acting.⁴⁷ The differentiated roles and powers of the institutions have provoked numerous turf-battles and have contributed to increased fragmentation of EU external relations, rather than to consistency and coherence. However, a nuance is in order. The Union institutions often have very different roles and competences within a sub-order as well, such as within the Community or between the ESDP and the CFSP.⁴⁸ Moreover, the single institutional framework is in practice given substance by the interactions between the administrations and civil servants of the several institutions, and the entry into force of the EU Treaty in fact generated widespread restructuring within each institution in order to make the single institutional framework work.⁴⁹ The Treaty of Lisbon attempts to enhance the substance of the single institutional framework, for example by introducing the HRUFASP as a bridge between the Commission and the Council, and, more broadly, between the Community method and the CFSP method,⁵⁰ and by expanding the role of the European Council in providing overarching guidance to the Union in general and in particular to its entire foreign policy.⁵¹

8.3 Two Border Quarrels In the following discussion, the interaction between first and second pillar aspects of foreign policy will be analysed in relation to two judgments of the Court of First Instance, and one of the Court of Justice. The judgments of the Court of First Instance concern the practice of the Union with regard to economic sanctions: a particularly clear example of the artificiality of the dichotomy between System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 154. ⁴⁶ Art 5 EU. ⁴⁷ cf K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2005) 56, para 3-016. ⁴⁸ cf JHH Weiler, ‘Neither Unity nor Three Pillars—The Trinity Structure of the Treaty on European Union’ in J Monar, W Ungerer, and W Wessels (eds), The Maastricht Treaty on European Union: Legal Complexity and Political Dynamic (1993) 58–61; C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 156. ⁴⁹ C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 156. Further: I Pernice and I Thym, ‘A New Institutional Balance for European Foreign Policy?’ (2002) 7 Eur Foreign Affairs Rev 386–391. ⁵⁰ ch 6.3.2. ⁵¹ ch 4.3.3.2.

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‘high politics’ external relations and external trade policy:⁵² it is about the use of certain trade instruments for objectives within the sphere of ‘high politics’, and therefore cuts through the horizontal-vertical distinction, touching on exclusive Community competences, CFSP competences, and Member States’ own foreign policy competences. More particularly, the tendency will be examined vertically to move away from autonomous Member State regulation, and horizontally to move away from CFSP regulation towards the Community framework. The judgment of the Court of Justice will be used further to illustrate that point; it exemplifies the constitutional dynamic within the Union that leads the Commission to pleas for more communitarization. However, the picture is nuanced: while there is clearly pressure for more communitarization, it is certainly not always succeeding. Moreover, there have been cases where the original fear of encroachment of the CFSP on the Community has proven to be justified. Thus, there exists ‘contamination’ or ‘spill-over’ between the first and the second pillar in both directions.⁵³

8.3.1 The Yusuf and Kadi Cases The Treaty of Lisbon would provide a unified procedure for economic and financial sanctions, now falling under Articles 301 and 60 EC. A decision within the sphere of the CFSP providing for the ‘interruption or reduction, in part or completely, of economic and financial relations with one or more third countries’, could be implemented by the adoption by the Council (by QMV) of the necessary measures or decisions, on a joint proposal from the HRUFASP and the Commission. The European Parliament would have to be informed under this new procedure.⁵⁴ This is presumably an attempt to remedy the marked lack of publicity and democratic debate at Union or Member State level before sanctions are adopted under the present constitutional structure.⁵⁵ The Council would be able, through the same procedure, to adopt restrictive measures against natural or legal persons and groups or non-State entities.⁵⁶ The latter is a welcome addition by the Treaty of Lisbon, as it is the subject of debate whether the current EC Treaty provides a sufficient legal basis for such measures against natural or legal persons and groups or non-State entities. This was the subject of the Yusuf ⁵⁷ and Kadi⁵⁸ cases before the Court of First Instance, ⁵² cf P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 422. ⁵³ Similarly: RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (1999) 321. ⁵⁴ Art 215(1) TFEU (cf Art III-322(1) TC). ⁵⁵ See E Denza, The Intergovernmental Pillars of the European Union (2002) 115. ⁵⁶ Art 215(2) TFEU (cf Art III-322(2) TC). ⁵⁷ Case T-306/01 Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-3533. ⁵⁸ Case T-315/01 Yassin Abdullah Kadi v Council and Commission [2005] ECR II-3649.

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which are of great significance for the vertical and horizontal division of competences, the role of human rights, and the relationship between EU law and international law. Only the judgments’ relevance for division of competences will be discussed here.⁵⁹ Both cases concern a challenge by individuals of Council Regulations taken in implementation of common positions, which in turn had been taken to implement UN Security Council Resolutions. Ahmed Ali Yusuf and Al Barakaat International Foundation had originally lodged an application for annulment of Council Regulation (EC) 467/2001 of 6 March 2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, and repealing Regulation (EC) 337/2000⁶⁰ and of Commission Regulation (EC) 2199/2001 of 12 November 2001 amending, for the fourth time, Regulation 467/2001,⁶¹ while Yassin Abdullah Kadi had equally lodged an application for annulment of the former of the two regulations, as well as of Commission Regulation (EC) 2062/2001 of 19 October 2001 amending, for the third time, Regulation 467/2001.⁶² Due to the repeal of Council Regulation 467/2001, the applicants in both cases had to lodge subsequently an application for annulment of the new Council Regulation (EC) 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the ⁵⁹ On the other issues, see the Opinions of Poiares Maduro AG in Case C-402/05 P Kadi v Council and Commission [2006] OJ C36/19, points 17 to 55, and Case C-415/05 P Al Barakaat International Foundation v Council and Commission [2006] OJ C48/11, points 17 to 55. See further eg MG Garbagnati Ketvel, ‘The Jurisdiction of the European Court of Justice in Respect of the Common Foreign and Security Policy’ (2006) 55 ICLQ 109–112; C Tomuschat, ‘Case T-306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council and Commission, judgment of the Court of First Instance of 21 September 2005; Case T-315/01, Yassin Abdullah Kadi v. Council and Commission, judgment of the Court of First Instance of 21 September 2005, nyr’ (2006) 43 CML Rev 537–551; P Eeckhout, Does Europe’s Constitution Stop at the Water’s Edge? Law and Policy in the EU’s External Relations (2005) 22–27, who argues that the Court of First Instance’s deferential attitude towards the decisions of political institutions at EU and UN level constitutes ‘judicial abdication wholly inconsistent with the precepts of European constitutionalism’; further: P Eeckhout, ‘General Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 307–312. On the Court’s pronouncements on ius cogens eg A Orakhelashvili, Peremptory Norms in International Law (2006) 581–584; C Tomuschat, ‘Case T-306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council and Commission, judgment of the Court of First Instance of 21 September 2005; Case T-315/01, Yassin Abdullah Kadi v. Council and Commission, judgment of the Court of First Instance of 21 September 2005, nyr’ (2006) 43 CML Rev 545–551. The Court of First Instance reaffirmed (and in places elaborated upon) its main findings in Yusuf and Kadi in Case T-253/02 Chafiq Ayadi v Council [2002] OJ C289/25 and Case T-49/04 Faraj Hassan v Council and Commission [2006] ECR II-52. ⁶⁰ [2001] OJ L67/1. This was taken pursuant to Common Position 2001/154/CFSP concerning additional restrictive measures against the Taliban and amending Common Position 96/746/ CFSP [2001] OJ L57/1, which in turn was an implementation of UN Security Council Resolution 1333 (2000) adopted by the Security Council at its 4251st meeting, on 19 December 2000, S/RES/1333 (2000). ⁶¹ [2001] OJ L295/16. ⁶² [2001] OJ L277/25.

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Taliban, and repealing Regulation 467/2001.⁶³ When replacing the former regulation by the latter, the Council decided to change the legal basis from Articles 60 and 301 EC in the case of Council Regulation 467/2001 to Articles 60, 301, and 308 EC for Council Regulation 881/2002. Notwithstanding the fact that the regulation was not at issue in the case, because it had ceased to exist, the Court of First Instance thought it necessary to analyse the acceptability of the legal basis of Council Regulation 467/2001.⁶⁴ The Court considered that the measures provided for by Council Regulation 467/2001 were among what are conventionally known as ‘smart sanctions’, which appeared in UN practice during the 1990s. Unlike classic general trade embargos aimed at a country, those sanctions provide more targeted and selective measures, so as to reduce the suffering endured by the civilian population of the country concerned,⁶⁵ while none the less imposing genuine sanctions on the targeted regime and those in charge of it. The Council took the view that Articles 60 and 301 EC allowed it to take restrictive measures against entities or persons physically controlling part of the territory of a third country and against entities or persons effectively in control of the government apparatus of a third country and also against persons and entities associated with them providing them with financial support.⁶⁶ Targeted in casu were the Taliban ⁶³ [2002] OJ L139/9. Th is was taken pursuant to Common Position 2002/402/CFSP, which in turn was an implementation of UN Security Council Resolution 1390 (2002) adopted by the Security Council at its 4452nd meeting, on 16 January 2002, S/RES/1390 (2002). See also Case C-117/06 Möllendorf and Möllendorf-Niehuus [2006] OJ C108/6, in which the Court held that in a situation where both the contract for the sale of immovable property and the agreement on transfer of ownership of that property have been concluded before the date on which the buyer is included in the list in Annex I (containing the list of persons, groups and entities designated by the UN Sanctions Committee) to Council Reg 881/2002 (as amended by Council Regulation (EC) No 561/2003 of 27 March 2003 amending, as regards exceptions to the freezing of funds and economic resources, Regulation (EC) No 881/2002 [2003] OJ L82/1), and where the sale price has also been paid before that date, Art 2(3) of that regulation must be interpreted as prohibiting the final registration, in performance of that contract, of the transfer of ownership in the German Land Register subsequent to that date. ⁶⁴ It did so at length in Case T-306/01 Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-3533, paras 107–124. ⁶⁵ On the negative impact of economic sanctions on human rights, with a particularly critical appraisal of the sanctions regime vis-à-vis Iraq: M Bossuyt, The adverse consequences of economic sanctions on the enjoyment of human rights (Geneva: E/CN.4/Sub.2/2000/33, 2000); cf R Geiss, ‘Humanitarian Safeguards in Economic Sanctions Regimes: A Call for Automatic Suspension Clauses, Periodic Monitoring, and Follow-Up Assessment of Long-Term Effects’ (2005) 18 Harvard Human Rights J 167–199. ⁶⁶ Indeed, the Community has been taking such sanctions for quite a while. See eg Council Regulation (EC) 1705/98 of 28 July 1998 concerning the interruption of certain economic relations with Angola in order to induce the ‘União Nacional para a Independência Total de Angola’ (UNITA) to fulfi l its obligations in the peace process, and repealing Council Regulation (EC) 2229/97 [1998] OJ L215/1; Council Regulation (EC) 1294/1999 of 15 June 1999 concerning a freeze of funds and a ban on investment in relation to the Federal Republic of Yugoslavia (FRY) and repealing Regulations (EC) 1295/98 and (EC) No 1607/98 [1999] OJ L153/63; Council Regulation (EC) 2488/2000 of 10 November 2000 maintaining a freeze of funds in relation to Mr Milosevic and those persons associated with him and repealing Regulations (EC) 1294/1999 and 607/2000 and Article 2 of Regulation (EC) 926/98 [2000] OJ L287/19.

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regime, which at the time controlled the greater part of Afghan territory and offered refuge and assistance to Usama bin Laden and his associates. The Court of First Instance accepted that there was thus a sufficient link with the territory and governing regime of a third country for Articles 60 and 301 EC to serve as legal basis for Council Regulation 467/2001. However, the new Council Regulation 881/2002, like the common position and the UN Security Council Resolution on which it was based, was not aimed at the already-fallen Taliban regime, but directly at Usama bin Laden, the Al-Qaeda network and persons and entities associated with them.⁶⁷ Articles 60 and 301 EC could serve as a legal basis for so-called ‘smart sanctions’ against the rulers of a third country and individuals and entities associated with the regime; they would not be a sufficient legal basis for targeting such individuals and entities once the regime had lost control of the third country concerned.⁶⁸ This part of the Court’s analysis is sound and appears to be confirmed by the fact that the drafters of the Constitution and the Treaty of Lisbon thought it necessary to mention explicitly that the Union would also be competent to adopt restrictive measures against natural or legal persons and groups or non-State entities.⁶⁹ The Court also took the view that Article 308 EC on its own—a solution suggested by the Commission—was not a sufficient legal basis for the regulation. In order for that to be the case, it must be possible to connect the campaign against international terrorism and, more particularly, the imposition of economic and financial sanctions, such as the freezing of funds, in respect of individuals and entities suspected of contributing to the funding of terrorism to one ⁶⁷ Similar cases include Case T-318/01 Omar Mohamed Othman v Council and Commission [2002] OJ C68/13; Case T-253/02 Chafiq Ayadi v Council [2006] ECR II-2139; Case T-49/04 Faraj Hassan v Council and Commission [2006] ECR II-52; Case T-299/04 Abdelghani Selmani v Council and Commission, Order of 18 November 2005 [2005] ECR II-20; Case T-362/04 Leonid Minin v Commission [2007] ECR II-2003. ⁶⁸ See, however, Advocate General Poiares Maduro who, in his Opinions in Case C-402/05 P Kadi v Council and Commission [2006] OJ C36/19, at points 12 to 14, and Case C-415/05 P Al Barakaat International Foundation v Council and Commission [2006] OJ C48/11, at points 12 to 14, holds that Arts 60 and 301 alone would have provided a sufficient legal basis. See also Case T-362/04 Leonid Minin v Commission [2007] ECR II-2003, paras 70–74. There, the Court of First Instance held that the sanctions imposed by the UN Security Council Resolutions, CFSP common positions, and Community measures in question (freezing of funds of persons associated with Charles Taylor) had a sufficient link with the territory or the rulers of Liberia, even though Charles Taylor had been removed from presidential power in August 2003. The Court found that ‘to the extent that the body to which the international community has entrusted the principal role of maintaining international peace and security considers that Charles Taylor and his associates continue to be able to undermine peace in Liberia and in neighbouring countries, the restrictive measures adopted against them have a sufficient link with the territory or the rulers of that country to be regarded as ‘[seeking] to interrupt or to reduce, in part or completely, economic relations with [a] . . . third countr[y]’, for the purpose of Arts 60 EC and 301 EC. Therefore, the Community has the power to adopt the measures in question on the basis of those provisions’. ⁶⁹ Art 215(2) TFEU (cf Art III-322(2) TC). The Convention Praesidium’s Draft Articles explicitly mentioned that the new provisions on economic sanctions widened the scope of the existing provisions by providing for measures not only against States but also against physical and legal persons: Draft Articles on external action in the Constitutional Treaty, CONV 685/03, para 21.

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of the objectives that Articles 2 and 3 EC expressly entrust to the Community. The Court decided that no such connection could be made.⁷⁰ The Commission had argued that there existed, in addition to those mentioned in Articles 2 and 3 EC, a more general objective of the Community, to ensure international peace and security; this, the Commission thought, could be inferred from the EC Treaty preamble. The Court looked in vain for such a general objective in the preamble.⁷¹ It noted that even though it is doubtless a principal aim of the EC Treaty to put an end to the conflicts of the past between the peoples of Europe by creating ‘an ever closer union’ among them, this is without any reference whatsoever to the implementation of a CFSP. The latter falls exclusively within the objects of the EU Treaty, which, as emphasized in the preamble thereto, seeks to ‘mark a new stage in the process of European integration undertaken with the establishment of the European Communities’. The Court of First Instance acknowledged that that objective of the Union could inspire action by the Community in the sphere of its own competence, such as the CCP, but emphasized that this is not a sufficient basis for the adoption of measures under Article 308 EC, above all in spheres in which Community competence is marginal and exhaustively defined in the Treaty. Article 308 EC cannot be used as a ‘blank cheque’ legal basis to attain one of the objectives of the EU Treaty. The coexistence of Union and Community as integrated but separate legal orders, and the constitutional architecture of the pillars authorize neither the institutions nor the Member States to rely on Article 308 EC in order to mitigate the fact that the Community lacks the competence necessary for achievement of one of the Union’s objectives. To decide otherwise would amount, the Court argued, to making that provision applicable to all measures falling within the CFSP and within PJCCM, so that the Community could always take action to attain the objectives of those policies. Such an outcome would deprive many provisions of the EU Treaty of their due ambit and would be inconsistent with the introduction of instruments specific to the CFSP and to the PJCCM. The Court therefore rightly concluded that neither Articles 60 and 301 EC, nor Article 308 EC, are in se sufficient as a legal basis.⁷² ⁷⁰ Case T-306/01 Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-3533, paras 134–152; Case T-315/01 Yassin Abdullah Kadi v Council and Commission [2005] ECR II-3649, paras 98–116. The use of Art 308 EC should, however, not necessarily be restricted to the general objectives listed in Arts 2 and 3 EC, but can equally serve the furtherance of specific objectives contained in various EC Treaty provisions: PJG Kapteyn and P VerLoren van Themaat, Introduction to the Law of the European Communities: From Maastricht to Amsterdam (1998) 236. ⁷¹ While the preamble can serve as an interpretation aid to determine the scope of the objectives of the Community, as indeed it did in Case 26/62 NV Algemene Transport-en Expeditie Onderneming Van Gend & Loos v Nederlandse Administratie der Belastingen [1963] ECR 1, it cannot by itself be a source of those objectives; cf D Verwey, The European Community, the European Union and the International Law of Treaties (2004) 42. ⁷² Case T-306/01 Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-3533, paras 153–157; Case T-315/01 Yassin Abdullah Kadi v Council and Commission [2005] ECR II-3649, paras 117–121.

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The Court then considered whether Articles 60, 301, and 308 EC taken together could provide the necessary legal basis. The Court of First Instance drew attention to what it described as ‘the bridge explicitly established at the time of the Maastricht revision’ between Community economic sanctions under Articles 60 and 301 EC on the one hand and the external relations objectives of the EU Treaty on the other hand. The Court pointed out that Articles 60 and 301 EC are ‘wholly special provisions’⁷³ in that they enable the Community to take action not in order to achieve one of the EC Treaty’s objectives, but the implementation of the CFSP, which is an objective specifically assigned to the Union in Article 2 EU. Actions pursuant to Articles 60 and 301 EC are therefore actions of the Union, rather than simply actions by the Community.⁷⁴ The Court drew a parallel between the fact that EC Treaty competences may be insufficient for the institutions to attain one of the objectives of the Community on the one hand, and the potential insufficiency of Articles 60 and 301 EC in attaining the objectives of the CFSP on the other hand. It also emphasized that the latter provisions were specifically introduced into the EC Treaty in order to attain those CFSP objectives. The Court decided that recourse to Article 308 EC as an additional legal basis next to Articles 60 and 301 EC was justified when the latter provisions proved to be insufficient in se in order to attain CFSP objectives, and this because of the requirement of consistency contained in Article 3 EU. The Court pointed out that the fight against international terrorism and its funding is undoubtedly one of the CFSP objectives, as defined in Article 11 EU, even where it does not apply specifically to third countries or their rulers.⁷⁵ However, the fight against terrorism is in fact not explicitly included in Article 11 EU, and neither is it included as an objective of the Union’s external relations in the Treaty of Lisbon.⁷⁶ None the less, one could argue that the fight against terrorism could be subsumed under the Article 11 EU objectives of strengthening ‘the security of the Union in all ways’ and of preserving ‘peace and international security’.⁷⁷ Even if we assume that the fight against terrorism is indeed an objective of the EU, the Court’s reasoning here is still not convincing. Articles 60 and 301 EC are indeed ‘bridges’ between the CFSP and the Community, and they were specifically inserted in the EC Treaty in order to contribute to ⁷³ Case T-315/01 Yassin Abdullah Kadi v Council and Commission [2005] ECR II-3649, para 124. ⁷⁴ Case T-306/01 Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-3533, paras 159–161; Case T-315/01 Yassin Abdullah Kadi v Council and Commission [2005] ECR II-3649, paras 123–125. ⁷⁵ Case T-306/01 Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-3533, paras 162–167; Case T-315/01 Yassin Abdullah Kadi v Council and Commission [2005] ECR II-3649, paras 126–131. ⁷⁶ It is, however, mentioned in the new Art 43(1) EU regarding the CSDP (cf Art III-309(1) TC), as well as in Art 75 TFEU (cf Art III-160 TC), regarding the area of freedom, security, and justice, Art 83(1) TFEU (cf Art III-271 TC) on judicial cooperation in criminal matters, and Art 88(1) TFEU (Art III-276 TC) on police cooperation. ⁷⁷ Art 11(1), second and third indent EU.

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the attainment of CFSP objectives, but only of certain very specific CFSP objectives. Articles 60 and 301 EC provide for the implementation of economic sanctions against third countries that have already been provided for in CFSP common positions or joint actions. Article 308 EC can only provide a legal basis if action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community, and the EC Treaty has not provided the necessary powers. The Court itself had pointed out earlier that the fight against international terrorism, more particularly the imposition of economic and financial sanctions, such as the freezing of funds, in respect of individuals and entities suspected of contributing to the funding of terrorism, cannot be made to refer to one of the objects that Articles 2 and 3 EC expressly entrust to the Community.⁷⁸ Neither can it be made to refer to any other object that could be deduced from the substantive provisions of the EC Treaty. What then can Article 308 add to Articles 60 and 301 EC? The Court’s view seems to be that, through the ‘bridge’ of Articles 60 and 301 EC, Article 308 EC can be made to serve objectives of the EU Treaty. However, as mentioned above, Articles 60 and 301 EC only form a bridge insofar as they allow the Community to implement specified CFSP measures, and these do not include sanctions against persons not directly connected with the government of a third country. Articles 60 and 301 EC do not contain any broader Community objectives, nor do they incorporate in a general manner the CFSP objectives. It is therefore hard to see how Article 308 EC could be of any help in allowing the Community to take measures such as the ones at issue on the basis of Articles 60 and 301 EC.⁷⁹ The Court also refers to the requirement of consistency as contained in Article 3 EU. While consistency is indeed of pre-eminent importance for the Union’s external relations, how it could grant the Community the competence to take the measures at issue is not made clear.⁸⁰ ⁷⁸ Case T-306/01 Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-3533, para 152; Case T-315/01 Yassin Abdullah Kadi v Council and Commission [2005] ECR II-3649, para 116. ⁷⁹ Compare the Opinions of Poiares Maduro AG in Case C-402/05 P Kadi v Council and Commission [2006] OJ C36/19, point 15, and Case C-415/05 P Al Barakaat International Foundation v Council and Commission [2006] OJ C48/11, point 15. Cf A Garde, ‘Is it Really for the European Community to Implement Anti-Terrorism UN Security Council Resolutions?’ (2006) 65 CLJ 283, who calls the Court of First Instance’s reasoning ‘disappointing, if not contradictory’. Contra: C Tomuschat, ‘Case T-306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council and Commission, judgment of the Court of First Instance of 21 September 2005; Case T-315/01, Yassin Abdullah Kadi v. Council and Commission, judgment of the Court of First Instance of 21 September 2005, nyr’ (2006) 43 CML Rev 540, who refers to the Court of First Instance’s ‘intelligent answer’ and who calls the reasoning ‘entirely persuasive’. Note that, after the entry into force of the Treaty of Lisbon, the fourth paragraph of Article 352 TFEU, the successor to Article 308 EC, would prevent that Article from serving as a basis for attaining objectives pertaining to the common foreign and security policy. ⁸⁰ Similarly: P Eeckhout, ‘General Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 289.

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The Court of First Instance further pointed out that Common Position 2002/402/CFSP concerning restrictive measures against Usama bin Laden, members of the Al-Qaeda organization and the Taliban and other individuals, groups, undertakings and entities associated with them and repealing Common Positions 96/746, 1999/727, 2001/154, and 2001/771/CFSP,⁸¹ on which Council Regulation 881/2002 is based, was adopted by the Council acting unanimously. One wonders what this would add to the argument, given that CFSP decisions are, as a rule, adopted by unanimity, and that Article 308 EC always requires unanimity in the Council. The Court is surely not implying that the fact that a measure may have been adopted by unanimity confirms the choice of legal basis. The Court concluded that as the world now stands, states can no longer be regarded as the only source of threats to international peace and security. Like the international community, the Union and its Community pillar are not to be prevented from adapting to those new threats by imposing economic and financial sanctions not only on third countries, but also on associated persons, groups, undertakings or entities engaged in international terrorist activity or in any other way constituting a threat to international peace and security.

In adopting Council Regulation 881/2002 on the joint legal basis of Articles 60, 301, and 308 EC, the Council therefore had remained within the scope of the competences attributed to the Community by the EC Treaty.⁸² The Court’s argument with regard to States no longer being the sole sources of threat is compelling from a political perspective, and is a strong argument in favour of Treaty-amendment allowing the Community to take the necessary measures, or of action under the CFSP under the current constitutional structure. It is, however, not a legal argument for allowing the Community to take those measures de lege lata. Moreover, while it is true that non-State actors have become increasingly important on the international scene, they have been playing a role for longer than the last couple of years. As a matter of fact, in 1993 the UN Security Council already adopted sanctions against a non-State actor, namely against the rebels of UNITA.⁸³ However, urgent action was no doubt needed. The Union could have implemented the UN Security Council Resolutions with common positions and joint actions,⁸⁴ if necessary containing quite detailed provisions. It could then have ⁸¹ [2002] OJ L139/4. ⁸² Case T-306/01 Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-3533, paras 158–170; Case T-315/01 Yassin Abdullah Kadi v Council and Commission [2005] ECR II-3649, paras 122–135. The Court of First Instance has confirmed this assessment, for example in Case T-253/02 Chafiq Ayadi v Council [2006] ECR II-2139, paras 87–89 and 111 and Case T-47/03 Sison v Council [2003] OJ C101/41, paras 98–102. ⁸³ See UN Security Council Resolution 864 (1993) adopted by the Security Council at its 3277th meeting, on 15 September 1993, S/RES/864 (1993). ⁸⁴ Similarly P Eeckhout, ‘General Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 289–290, who also points out that the Member States are in any event

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left further detailed implementation to the Member States. Joint actions commit the Member States to the positions they adopt and to the conduct of their activity,⁸⁵ and Member States have to ensure that their national policies conform to the common positions.⁸⁶ It should, however, be borne in mind that, as argued above, CFSP acts that have an impact on individuals and which do not need implementation on Community or national level run the distinct danger of leaving the individuals affected without a legal remedy.⁸⁷ While CFSP or Union objectives can certainly be pursued within the Community framework, as is evident from the Court’s case-law,⁸⁸ this can only be so if there exists an independent legal basis within the EC Treaty, thus providing a Community objective to go pari passu with the Union objective.

8.3.2 The Small Arms and Light Weapons Case On 21 February 2005, the Commission brought an action pursuant to Article 230, paragraph 2 EC, seeking the annulment, for lack of competence, 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.⁸⁹ In addition, the Commission sought a declaration of illegality, pursuant to Article 241 EC, of 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/CFSP⁹⁰ as the ‘act of a general legislative nature’⁹¹ on which the disputed Decision was based. Both pleas were based on the same grounds. The Commission’s quarrel was with the fact that the Council had adopted the disputed Decision under Title V of the EU Treaty, whereas the spread of small under an obligation to abide by the UN Security Council Resoluions, regardless of whether they have been implemented by an EC or a CFSP act. ⁸⁵ Art 14(3) EU. ⁸⁶ Art 15 EU. ⁸⁷ See Case T-333/02 Gestoras Pro-Amnistía and Others v Council, Order of 7 June 2004 [2004] OJ C228/40 and Case T-338/02 Segi, Araitz Zubimendi Izaga, and Aritza Galarraga v Council, Order of 7 June 2004 [2004] ECR II-1647, and the appeals before the Court of Justice Case C-354/04 P Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti v Council [2007] ECR I-1579 and Case C-355/04 SEGI, A. Zubimendi Izaga, A. Galarraga v the Council [2007] ECR I-1657. See the Opinion of Mengozzi AG in these cases. Similarly: M Cremona, ‘Community Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 332. ⁸⁸ eg Case C-70/94 Fritz Werner Industrie-Ausrüstungen GmbH v Germany [1995] ECR I-3189, para 10. ⁸⁹ [2004] OJ L359/65. ⁹⁰ [2002] OJ L191/1. ⁹¹ Is this a ‘Freudian slip’ or perhaps merely an argument ‘pour les besoins de la cause’? On the possible legislative nature of joint actions, see, for example, the discussion in section 4.3.2.3 above.

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arms and light weapons is covered by Article 11 of the Partnership Agreement between the members of the African, Caribbean, and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou (Cotonou Agreement).⁹² It should perhaps be emphasized that the battle against small arms and light weapons is by no means trivial. In the words of UN Secretary-General Kofi Annan, ‘The death toll from small arms dwarfs that of all other weapons systems—and in most years greatly exceeds the toll of the atomic bombs that devastated Hiroshima and Nagasaki. In terms of the carnage they cause, small arms, indeed, could well be described as “weapons of mass destruction”.’⁹³ The struggle against further proliferation of small arms is therefore eminently important.⁹⁴ The Commission pointed out that it had concluded, pursuant to Article 10(2) of Annex IV to the Cotonou Agreement, a Regional Indicative Programme for West Africa with ECOWAS and the West African Economic and Monetary Union (WAEMU), which supports a regional policy of conflict prevention and good governance, and announces support in particular for the Moratorium on the Import, Export and Production of Light Weapons in West Africa. The Commission’s conclusion was that ‘the impugned CFSP decision is in infringement of Article 47 EU, since it affects Community powers in the field of development aid’. It should be noted that Community policy in the sphere of development cooperation is ‘complementary to the policies pursued by the Member States’ and pursues the following objectives:⁹⁵ • the sustainable economic and social development of the developing countries, and more particularly the most disadvantaged among them; • the smooth and gradual integration of the developing countries into the world economy; • the campaign against poverty in the developing countries. Those objectives seem to be completely geared towards the economic and social aspects of development cooperation. In pursuing those specific objectives, Community development policy has to contribute to the general objective ⁹² Partnership Agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000 [2000] OJ L317/3. ⁹³ Quoted in Amnesty International and Oxfam International, Shattered Lives: the case for tough international arms control (2003) 8. See also the definition of small arms in S Marks and A Clapham, International Human Rights Lexicon (2005) 1, fn 1: ‘By “small arms” are meant weapons designed for personal use, e.g. revolvers and self-loading pistols, rifles, sub-machine guns, assault rifles, and light machine guns.’ ⁹⁴ Further, see S Marks and A Clapham, International Human Rights Lexicon (2005), 1–17 and the EU Strategy to combat illicit accumulation and trafficking of SALW and their ammunition, Doc. No 5319/06 CFSP 31. ⁹⁵ Art 177(1) EC.

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of developing and consolidating democracy and the rule of law, and to that of respecting human rights and fundamental freedoms.⁹⁶ The CFSP objective relevant here is to ‘preserve peace and strengthen international security, in accordance with the principles of the United Nations Charter, as well as the principles of the Helsinki Final Act and the objectives of the Paris Charter, including those on external borders’.⁹⁷ In its judgment, the Court started its analysis of the operation of Article 47 EU by spelling out clearly how to interpret the test it had developed in the Airport Transit Visas,⁹⁸ Environmental Penalties,⁹⁹ and Ship-Source Pollution¹⁰⁰ cases. It held that, 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, Article 47 EU aims, in accordance with the fifth indent of Article 2 EU and the first paragraph of Article 3 EU, to maintain and build on the acquis communautaire’ and that a measure having legal effects adopted under Title V of the EU Treaty affects the provisions of the EC Treaty ‘whenever it could have been adopted on the basis of the EC Treaty’.¹⁰¹ This is in line with Advocate General Mengozzi’s suggestion in his Opinion that Article 47 EU should be read as providing that ‘if an action could be undertaken on the basis of the EC Treaty, it must be undertaken by virtue of that Treaty’.¹⁰² The Court added that it was unnecessary in this respect to examine whether the measure prevents or limits the exercise by the Community of its competences. The only consideration that matters is that if the provisions of a measure adopted under Titles V or VI of the EU Treaty, on account of both their aim and their content, have as their main purpose the implementation of a Community policy, and if they could properly have been adopted on the basis of the EC Treaty, those provisions infringe Article 47 EU.¹⁰³ In other words, in order to determine under which pillar a provision should have been adopted, it is necessary to identify its main purpose, which can be gleaned both from its aim and its content. If that main purpose in fact amounts to the implementation of a Community policy, and if the provision could have been adopted within the first pillar, it should have been so adopted. The Court also added that it is equally irrelevant whether the area of Community law ‘affected’ within the meaning of Article 47 EU falls within the Community’s exclusive competences. If the Member States could have adopted a measure in exercise of their own competences in an area, such as development cooperation, where they are not precluded from exercising their competences ⁹⁶ ⁹⁷ ⁹⁸ ⁹⁹ ¹⁰⁰ ¹⁰¹ ¹⁰² ¹⁰³

Art 177(2) EC; see also Art 177(3) EC. Art 11(1), fifth indent EU. Case C-170/96 Commission v Council [1998] ECR I-2763. Case C-176/03 Commission v Council [2005] ECR I-7879. Case C-440/05 Commission v Council [2006] OJ C22/10. Case C-91/05 Commission v Council [2005] OJ C115/10, paras 58–60. Opinion at point 116. Para 60.

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individually or collectively, that has no bearing on whether that measure should be adopted under the first or the second pillar.¹⁰⁴ The vertical division of competences therefore does not predetermine the horizontal. The Court then proceeded to demarcate the areas of development cooperation policy and the CFSP by first recalling its case-law on the objectives of the former. As found in Articles 177 and 181 EC, these are broad enough to enable measures required for their pursuit to concern various specific matters, and they not only pertain to socio-economic goals, but equally to the development and consolidation of democracy and the rule of law, as well as to respect for human rights and fundamental freedoms, in compliance with commitments in the context of the UN and other international organizations.¹⁰⁵ Following the same lines as those suggested by Advocate General Mengozzi,¹⁰⁶ the Court then pointed out that no sustainable socio-economic development is possible without peace and security and that the pursuit of the objectives of the Community’s new development policy necessarily proceeds via the promotion of democracy and respect for human rights.¹⁰⁷ It referred to ‘The European Consensus [on Development]’¹⁰⁸ and a resolution on small arms and light weapons adopted by the ‘development’ Council on 21 May 1999¹⁰⁹ to underline the importance of the fight against the proliferation of small arms and light weapons in this respect.¹¹⁰ This argument only goes so far. It would be impossible to define the scope of the Community’s development cooperation policy by including all measures that could potentially contribute to the developmental goals mentioned in Article 177(2) EC. Surely any measure contributing to peace and stability in a certain region will, even if only indirectly, contribute to developmental goals. Such measures provide the necessary background circumstances for even the most minimal socio-economic goals to have a chance at succeeding. Sending troops to a wartorn region in order to stop the warring parties from wreaking havoc among the civilian population would clearly benefit all the developmental goals mentioned in Article 177(2) EC. It would, however, equally clearly fall within the CFSP. However, the Court emphasized that a concrete measure aiming to combat the proliferation of small arms and light weapons may be adopted by the Community under its development cooperation policy only if that measure, by virtue both of its aim and its content, falls within the scope of the Community’s competences in ¹⁰⁴ Paras 61–62. ¹⁰⁵ Paras 64–65, referring to Case C-268/94 Portugal v Council [1996] ECR I-6177, para 37 and Case C-403/05 Parliament v Commission [2006] OJ C10/14, para 56, respectively. ¹⁰⁶ Points 169–172 of his Opinion. ¹⁰⁷ Para 66, referring to Case C-403/05 Parliament v Commission [2006] OJ C10/14, para 57; see also the Opinion of Kokott AG in the latter case, point 69. ¹⁰⁸ Joint statement by the Council and the representatives of the governments of the Member States meeting within the Council, the European Parliament and the Commission on European Union Development Policy: ‘The European Consensus’ [2006] OJ C46/1. ¹⁰⁹ EU Strategy to combat illicit accumulation and trafficking of SALW and their ammunition, Doc. No 5319/06 CFSP 31. ¹¹⁰ Paras 66–70.

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that field. ‘That is not the case if such a measure, even if it contributes to the economic and social development of the developing country, has as its main purpose the implementation of the CFSP.’¹¹¹ The Court then recalled that if examination of a measure reveals that it pursues a twofold aim or that it has a twofold component and if one of those is identifiable as the main one, whereas the other is merely incidental, the measure must be based on a single legal basis, namely that required by the main aim or component. It deduced from that that measures combating the proliferation of small arms and light weapons do not fall within Community development cooperation policy if, on account of their main aim or component, they are part of the pursuit of the CFSP. The Court equally recalled that, with regard to a measure which simultaneously pursues a number of objectives or which has several components, without one being incidental to the other and where various legal bases of the EC Treaty are therefore applicable, such a measure will have to be founded, exceptionally, on the various corresponding legal bases.¹¹² Crucially, however, the Court added that under Article 47 EU, such a solution is impossible with regard to a measure which pursues a number of objectives or which has several components falling, respectively, within Community development cooperation policy and within the CFSP, and where neither one of those components is incidental to the other. To back this up, the Court somewhat surprisingly did not refer to the legally compelling argument of the incompatible procedures of measures adopted under a combined first-second pillar legal basis, but instead added, rather circularly, that ‘since Article 47 EU precludes the Union from adopting, on the basis of the EU Treaty, a measure which could properly be adopted on the basis of the EC Treaty, the Union cannot have recourse to a legal basis falling within the CFSP in order to adopt provisions which also fall within a competence conferred by the EC Treaty on the Community’.¹¹³ The Court’s reasoning, therefore, appears to be based on the idea that a legal instrument that finds its legal basis both in the first and the second pillar is impermissible in principle, rather than impossible on (more pragmatic) procedural grounds. What this means for the possibility of cross-pillar mixity will be examined in the next section. The Court then proceeded to examine whether the contested decision fell, by virtue both of its aim and its content, within Community development cooperation policy. As regards its aim, the Court noted that the contested decision aimed to implement the contested CFSP joint action, but that this fact did not necessarily imply that implementing measures would necessarily take the form of measures pursuing CFSP objectives and that it did not exclude the possibility that the objectives of the contested decision could be achieved by Community development ¹¹¹ Paras 71–72 (emphasis added). ¹¹² Paras 73–75. ¹¹³ Paras 76–77.

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cooperation measures. The Court therefore examined whether the contested decision pursued objectives falling within Community development cooperation policy. It found that the contested decision, to the extent that it aimed to prevent further accumulation of small arms and light weapons in West Africa capable of destabilizing that region, formed part of a general perspective of preserving peace and strengthening international security, but that it could not be inferred from the contested decision that its concern to eliminate or reduce obstacles to the development of the countries concerned was purely incidental. The Court concluded that the contested decision had the specific goal of strengthening the capacities of a group of African developing countries to combat a phenomenon which, according to recital 1 in the preamble to the contested decision, constitutes an obstacle to the sustainable development of those countries and that it followed that the contested decision pursued a number of objectives, falling within the CFSP and development cooperation policy respectively, without one of those objectives being incidental to the other.¹¹⁴ With respect to its content, the Court noted that Article 1(2) of the contested decision provided for a financial contribution and technical assistance to set up a Light Weapons Unit within the ECOWAS Technical Secretariat and to convert into a convention the existing moratorium between the Member States of that organization concerning small arms and light weapons. Explicitly following the Opinion of Advocate General Mengozzi,¹¹⁵ the Court held that it is only in the light of the aims that they pursue that a financial contribution or technical assistance can be regarded as falling within the scope of the CFSP or of Community development cooperation policy, thus returning its focus to objectives and somewhat blurring the analyses of the aim and content of the contested decision. It noted that while ‘there may be some measures’, such as the grant of political support for a moratorium or the collection and destruction of weapons, which fall rather within the CFSP objectives of preserving peace and strengthening international security or of promoting international cooperation, the decision to make funds available and to give technical assistance to a group of developing countries in order to draft a convention is capable of falling both under development cooperation policy and the CFSP.¹¹⁶ The Court concluded that taking account of its aim and its content, the contested decision contained two components, neither of which can be considered to be incidental to the other, one falling within Community development cooperation policy and the other within the CFSP and that the Council had therefore infringed Article 47 EU by adopting the contested decision on the basis of Title V of the EU Treaty, even though it also falls within development cooperation policy. The Court accordingly annulled the contested decision, without it having ¹¹⁴ Paras 79–99. ¹¹⁵ Point 211 of the Opinion. ¹¹⁶ Paras 100–107.

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been necessary to examine the plea as to the alleged illegality of the contested joint action.¹¹⁷ The Airport Transit Visas,¹¹⁸ Environmental Penalties,¹¹⁹ and Ship-Source Pollution¹²⁰ cases had already established that, whenever the Council judges a matter to fall within the second or third pillar, this may not encroach upon the powers conferred by the EC Treaty on the Community. After the judgment in the Small Arms and Light Weapons case, it is clear that this means that no second or third pillar act may be adopted on any matter falling within the scope of the EC Treaty, regardless of the non-exclusive character of the Community competence concerned.¹²¹ Article 47 EU prohibits action from being taken within the CFSP if the same action could be taken under Community development policy.¹²² This line of cases clearly establishes Article 47 EU as quite a formidable bulwark of the acquis communautaire and the first pillar against any invasion by the second and third pillars. By consequence, however, it equally highlights the fact that this bulwark may also prove a potential obstacle to integrated and consistent external relations, as well as to the effectiveness of the very Community policies it is trying to protect. It should be recalled that the Community’s competence with regard to development cooperation is the example par excellence of a parallel competence, whereby the Community and the Member States can both act without the one pre-empting the other. That such is the case can be gathered from the text of the EC Treaty Articles on development cooperation. Community policy in the sphere of development cooperation is specifically said to be ‘complementary to the policies pursued by the Member States’,¹²³ and Article 181 EC on international development agreements contains 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’. The Court also confirmed the parallel character of the Community’s development cooperation competence in the Bangladesh¹²⁴ and EDF ¹²⁵ cases, ¹¹⁷ Paras 108–110. ¹¹⁸ Case C-170/96 Commission v Council [1998] ECR I-2763, para 16. ¹¹⁹ Case C-176/03 Commission v Council [2005] ECR I-7879, para 39. ¹²⁰ Case C-440/05 Commission v Council [2006] OJ C22/10, para 53. ¹²¹ See, also to that effect, the Opinion of Mengozzi AG, points 99–100, 110, and 115, and see also the Opinion of Mazák AG in Case C-440/05 Commission v Council [2006] OJ C22/10, point 58. Cf P Eeckhout, ‘General Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 287–288. ¹²² See the Opinion of Mengozzi AG, point 116 and, to that effect, the Opinion of Mazák AG in Case C-440/05 Commission v Council [2006] OJ C22/10, point 53. ¹²³ Art 177(1) EC. ¹²⁴ Joined Cases C-181/91 and C-249/91 European Parliament v Council and Commission [1993] ECR I-3685, para 16. ¹²⁵ Case C-316/91 European Parliament v Council [1994] ECR I-625. On these two cases: A Ward, ‘Community Development Aid and the Evolution of the Interinstitutional Law of the European Union’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 42–47.

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both pre-dating the Treaty of Maastricht. In the EDF judgment, the Court concluded that the Community’s competence in the field of development aid is not exclusive and that the Member States are therefore entitled ‘to enter into commitments themselves vis-à-vis non-member States, either collectively or individually, or even jointly with the Community’.¹²⁶ The Court cited Article 180 EC, newly added by the Treaty of Maastricht, in support of this conclusion. The latter provides for the Community and the Member States to coordinate their policies on development cooperation and to consult each other on their aid programmes and for the possibility of joint action.¹²⁷ The Treaty on the Functioning of the European Union lists development cooperation and humanitarian aid among the shared competences: the Union has the competence to carry out activities and conduct a common policy in those areas.¹²⁸ However, contrary to the normal rule with regard to shared competences under the Treaty of Lisbon,¹²⁹ preemption is explicitly excluded in these two policies.¹³⁰ What could be the policy consideration that allows both the Community and the Member States to pursue a development cooperation policy alongside each other? Development cooperation and humanitarian aid are policy areas in which the simultaneous existence of actions and initiatives on several levels of government would not necessarily seem to jeopardize overall effectiveness. The Member States should therefore not be prevented from taking their own development initiatives, even if the Community has already acted on the same issue, as long as they abide by Article 10 EC, which prevents them from pursuing policies that would prejudice the attainment of the Community’s development policy objectives, and Article 180(1) EC, which obliges the Community and the Member States to coordinate their policies on development cooperation.¹³¹ If this is the ratio legis of the parallel character of the Community’s development cooperation and humanitarian aid competences, it is not obvious to what extent Community development cooperation can really in practice be encroached upon by a measure such as the one at issue in the Small Arms and Light Weapons case.¹³² What distinguishes the situation in that case from those in the Airport Transit Visas,¹³³ Environmental Penalties,¹³⁴ ¹²⁶ Case C-316/91 European Parliament v Council [1994] ECR I-625, para 26. ¹²⁷ Ibid, para 27. Cf S Nuttall, ‘Coherence and Consistency’ in C Hill and M Smith (eds), International Relations and the European Union (2005) 107, who notes that Art 180 EC has been ‘more honoured in the breach than the observance’. ¹²⁸ Art 4(4) TFEU (cf Art I-14(4) TC). ¹²⁹ Art 2(2) TFEU (cf Art I-12(2) TC). ¹³⁰ Art 4(4) in fine TFEU (cf Art I-14(4) in fine TC). ¹³¹ See in that sense also the Opinion of Mengozzi AG, point 107. ¹³² However, at point 124 of his Opinion, Mengozzi AG rightly doubted whether an action under the CFSP could really never (the English translation reads ‘ever’, while the French original is ‘ jamais’) encroach on the Community’s competence in relation to development cooperation, contrary to the submission of the UK Government. ¹³³ Case C-170/96 Commission v Council [1998] ECR I-2763. ¹³⁴ Case C-176/03 Commission v Council [2005] ECR I-7879.

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and Ship-Source Pollution¹³⁵ cases is that the measures at issue in the Small Arms and Light Weapons case appeared to be genuinely pursuing a CFSP objective. Indeed, Advocate General Mengozzi took the view that the contested decision in fact principally pursued the objectives set out in Article 11(1) EU, in particular those of preserving peace and strengthening international security, which do not correspond to any of the aims assigned to the Community.¹³⁶ Moreover, it would seem that the contested measures would not in practice have hindered the parallel exercise of Community competence in development cooperation. The Court, however, made it quite clear that the question whether the measure in fact prevented or limited the exercise by the Community of its competences was irrelevant.¹³⁷ It is now clear that a measure that genuinely and mainly pursues a development cooperation objective and could be taken under the Community’s competences under Title XX of the EC Treaty should be taken on that legal basis. As regards international agreements, the Court’s judgment in Portugal v Council ¹³⁸ had already emphasized that the fact that a development cooperation agreement contains clauses concerning various specific matters cannot alter the characterization of the agreement. The latter must be determined having regard to its essential object and not in terms of individual clauses, provided that those clauses do not impose such extensive obligations concerning specific matters that they in fact constitute objectives distinct from those of development cooperation.¹³⁹ The Court also pointed out that the mere inclusion in an international agreement on development cooperation of provisions for cooperation in a specific field does not predetermine the vertical allocation of competences or the legal basis of Community acts for implementing cooperation in such a field.¹⁴⁰ This implies that an international agreement on development cooperation can provide for cooperation activities that would have to be based, not on Article 181 EC, but on another EC Treaty article, or on a provision of the EU Treaty with regard to the second or third pillar, should it have been taken outside the cooperation framework concerned. In Portugal v Council, the ‘provisions for cooperation in a specific field’ concerned a third pillar matter: the control of drug abuse. Through an international agreement on development cooperation based on Article 181 EC, the Community may thus enter into obligations that require for their

¹³⁵ Case C-440/05 Commission v Council [2006] OJ C22/10. ¹³⁶ Points 213 and 221 of the Opinion. ¹³⁷ Para 60. ¹³⁸ Case C-268/94 Portugal v Council [1996] ECR I-6177. Further: S Peers, ‘Fragmentation or Evasion in the Community’s Development Policy? The Impact of Portugal v. Council’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (2000) 100–112. ¹³⁹ Case C-268/94 Portugal v Council [1996] ECR I-6177, para 39; see also Opinion 1/78 International Agreement on Natural Rubber [1979] ECR 2871, para 56. ¹⁴⁰ Case C-268/94 Portugal v Council [1996] ECR I-6177, para 39; see also Opinion 1/78 International Agreement on Natural Rubber [1979] ECR 2871, para 47.

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implementation the exercise of competences belonging to the second or third pillar, or even to the Member States. Conversely, a measure genuinely and mainly pursuing a CFSP objective, while also contributing to a development cooperation objective, should be adopted under the second pillar.¹⁴¹ This none the less seems to imply that, while the Member States, individually or collectively, are perfectly free to take development cooperation measures entirely outside the Union framework on their own competences instead of under the Community, they would not be free instead to choose to take the very same measures within the second pillar.¹⁴² It is, moreover, unfortunate that the EU’s current constitutional framework precludes an autonomous legal instrument containing an integrated measure genuinely pursuing both a development cooperation goal and a security policy goal without one being secondary to the other. One can imagine circumstances in which the Member States would wish to take an integrated package of measures on security and development cooperation that should, for the sake of coherence and consistency, be adopted under the same instrument. It would be contrary to the principle of consistency for the Member States to be driven to take such a measure outside the Union framework—as they would be entitled to do—rather than as part of an integral Union measure. Moreover, since development cooperation does not belong to the Community’s exclusive competences, the subsidiarity principle applies, limiting Community action to those actions that have an added value with respect to the Member States’ own measures. Community development cooperation is meant to provide for measures to attain those goals that the Member States themselves could not properly achieve. The EU should perhaps ponder the question why it is that, even though the development cooperation measures of the Community/Union and its Member States both quantitatively and qualitatively far exceed the equivalent US measures,¹⁴³ ¹⁴¹ cf also the Opinion of Mengozzi AG, point 175: ‘Reading Articles 47 EU and 5 EC in conjunction must also lead to the conclusion that, if a European Union action pursues the main aim of preserving peace and strengthening international security (and a fortiori if that is the exclusive aim) while at the same time contributing indirectly to the social and economic development of developing countries, any encroachment on the Community’s competences is precluded’, and point 189: ‘The delimitation between the respective competences of the Community and the European Union therefore goes in the final analysis through the identification of the purpose of the measure in question according to whether it pursues the exclusive or principal objective of preserving peace and/or strengthening international security, thus falling within the scope of the CFSP, or of social and economic development, in which case it is covered by the Community development cooperation policy.’ ¹⁴² cf C Hillion and RA Wessel, ‘Restraining External Competences of EU Member States under CFSP’ in M. Cremona and B. De Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (forthcoming (2008)), who remark that this ‘may sound partly absurd’; M Cremona ‘Community Report’ in XL Xenopoulos (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (2006) 334, who notes that, however necessary Article 47 EU may be, it ‘potentially creates an obstacle for developing fully integrated policies across the Union . . .’. ¹⁴³ The EU provides 55% of world development aid: Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and

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the latter still remains the main player in the field. It has been argued that the reason for this is that the US is able to provide integrated economic and security aid, which is essential for the many developing countries where basic security for its citizens is the primary concern.¹⁴⁴ However, both the Advocate General and the Court felt unable to interpret Article 47 EU as leaving room under the current constitutional structure of the EU for taking such integrated measures. What this implies will be briefly further examined in the next section on crosspillar mixity. The issues in the Small Arms and Light Weapons case are closely linked to those surrounding the adoption of Regulation (EC) No 1717/2006 of the European Parliament and of the Council of 15 November 2006 establishing the Instrument for Stability,¹⁴⁵ which, within the context of development cooperation, aims to contribute to stability in situations of crisis or emerging crisis, and to help build capacity to address specific global and transregional threats and to ensure preparedness to address pre- and post-crisis situations.¹⁴⁶ The original proposal¹⁴⁷ had Article 308 EC as its legal basis, but the regulation was finally adopted on the basis of Articles 179(1) and 181a EC. Article 308 EC would have been a doubtful legal basis, as the connection between the various security-related objectives of the regulation, and ‘the course of operation of the common market’ is tenuous to say the least. Moreover, the original choice of Article 308 EC raises some rather disquieting questions regarding the delimitation between first and second pillar external relations. The Court’s judgment in the Small Arms and Light Weapons case makes it clear that Article 47 EU prohibits action from being taken within the CFSP¹⁴⁸ if the same action could be taken under Community development policy.¹⁴⁹ Does this mean that the possibility of adopting a measure under Article 308 EC is sufficient to preclude action under the CFSP? That would seem to follow from the Court’s interpretation of Article 47 EU in the Airport Transit Visas,¹⁵⁰ Environmental Penalties,¹⁵¹ Ship-Source Pollution,¹⁵² and Small Arms and Light Weapons cases. However, the Council’s competence with the Committee of the Regions. Proposal for a Joint Declaration by the Council, the European Parliament and the Commission on the European Union Development Policy. “The European Consensus”, {SEC(2005) 929}, Brussels, 13 July 2005, COM(2005) 311 final, para 4; see further K De Feyter, World Development Law. Sharing Responsibility for Development (2001) 105–145. ¹⁴⁴ S Keukeleire, Het buitenlands beleid van de Europese Unie (1998) 119. ¹⁴⁵ [2006] OJ L 327/1. ¹⁴⁶ Art 1. ¹⁴⁷ Proposal for a Regulation of the Council establishing an Instrument for Stability, COM(2004) 630 final. ¹⁴⁸ Art 11(1) EU. ¹⁴⁹ See also the Opinion of Mengozzi AG in Case C-91/05 Commission v Council [2005] OJ C115/10, point 116, and to that effect, the Opinion of Mazák AG in Case C-440/05 Commission v Council [2006] OJ C22/10, point 53. ¹⁵⁰ Case C-170/96 Commission v Council [1998] ECR I-2763. ¹⁵¹ Case C-176/03 Commission v Council [2005] ECR I-7879. ¹⁵² Case C-440/05 Commission v Council [2006] OJ C22/10.

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regard to Article 308 EC is largely discretionary. An a priori exclusion of any CFSP measure on a matter that could conceivably be taken under Article 308 EC therefore entails legal uncertainty. What would happen if the Council had already adopted a legal instrument with Article 308 EC as legal basis? This would seem to imply that any matter properly—viz not ultra vires—included within such an instrument would automatically entail its exclusion from the scope of the CFSP. Careful scrutiny by the Court of measures adopted on the basis of Article 308 EC is therefore warranted. After the entry into force of the Treaty of Lisbon, the fourth paragraph of Article 352 TFEU, the successor to Article 308 EC, would prevent that Article from serving as a basis for attaining objectives pertaining to the common foreign and security policy. Moreover, any acts adopted pursuant to that Article would have to respect the limits set out in New Article 40, second paragraph EU, which provides that the implementation of the policies listed in Articles 3 to 6 TFEU¹⁵³ is not to affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union’s CFSP competences. The judgment of the Court of Justice in the Small Arms and Light Weapons case provides the opportunity to observe the fluctuating border between the first and the second pillar in action. It is of great importance to the constitutional framework of the EU’s foreign policy. It is also a reminder that any attempt to define the scope of the CFSP is a hazardous enterprise. Indeed, the emphasis the Court puts on the respective objectives of development cooperation and the CFSP in order to determine under which one of them a measure should properly have been adopted would seem to imply that the task of delineating first and second pillar external action might become well-nigh Herculean if the Treaty of Lisbon were to abolish the specific CFSP objectives.¹⁵⁴

8.4 ‘Cross-Pillar Mixity’? The Court’s judgment in the Small Arms and Light Weapons case¹⁵⁵ also has important consequences for the possibilities of cross-pillar mixity, viz where an internal measure or an international agreement contains elements that touch on both the first and the second pillar.¹⁵⁶ ¹⁵³ Listing the Union’s exclusive (Art 3) and shared competences (Art 4), its competence to coordinate the Member States’ economic policies within the Union (Art 5) and its competence to carry out actions to support, coordinate, or supplement the actions of the Member States (Art 6). ¹⁵⁴ See ch 8.5. ¹⁵⁵ Case C-91/05 Commission v Council [2005] OJ C115/10. ¹⁵⁶ Further regarding international agreements eg MG Garbagnati Ketvel, ‘The Jurisdiction of the European Court of Justice in Respect of the Common Foreign and Security Policy’ (2006) 55 ICLQ 92–94.

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The Court confirmed its case-law that if an examination of a Community measure reveals that it pursues a twofold purpose, or has a twofold component, and if one is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, the measure must be founded on a single legal basis, namely that required by the main or predominant purpose or component.¹⁵⁷ By way of exception, if the measure simultaneously pursues several objectives or has several components that are indissociably linked without one being secondary and indirect in relation to the other, the measure will have to be founded on the corresponding legal bases.¹⁵⁸ As noted above, the Court explicitly added that such a solution is impossible with regard to a measure that pursues a number of objectives or which has several components falling, respectively, within Community development cooperation policy and within the CFSP, and where neither one of those components is incidental to the other.¹⁵⁹ The Court did not, however, support this with what would seem to be legally the most convincing argument. Prohibitive difficulties namely arise for first-second pillar cross-pillar internal measures from the fact that ‘recourse to a dual legal basis is not possible where the procedures laid down for each legal basis are incompatible with each other or where the use of two legal bases is liable to undermine the rights of the Parliament’.¹⁶⁰ As Advocate General Mengozzi rightly noted, in a case concerning the distribution of competences between the second and the first pillars, the use of two legal bases would appear impossible in view of the different procedural requirements laid down in the framework of Title V of the EU Treaty and in that of Title XX of the EC Treaty. Whereas a CFSP joint action is, in principle, adopted solely by the Council acting ¹⁵⁷ Case C-91/05 Commission v Council [2005] OJ C115/10, para 73, referring to Case C-211/01 Commission v Council [2003] ECR I-8913, para 39; Case C-338/01 Commission v Council [2004] ECR I-4829, para 55; Case C-94/03 Commission v Council [2006] ECR I-1, para 35; Case C-176/03 Commission v Council [2005] ECR I-7879, paras 51–53, and Case C-440/05 Commission v Council [2006] OJ C22/10, paras 71–73; see further eg Case C-155/91 Commission v Council [1993] ECR I-939, paras 19 and 21; Case C-42/97 European Parliament v Council [1999] ECR I-869, paras 39–40; Case C-36/98 Spain v Council [2001] ECR I-779, para 59; Opinion 2/00 [Cartagena Protocol] [2001] ECR I-9713, para 23; Case C-211/01 Commission v Council [2003] ECR I-8913, para 39; Case C-281/01 Commission v Council [2002] ECR I-12049, para 34; Case C-338/01 Commission v Council [2004] ECR I-4829, para 55; Case C-178/03 Commission v Parliament and Council [2006] ECR I-107, para 42. ¹⁵⁸ Case C-91/05 Commission v Council [2005] OJ C115/10, para 75, referring to Case C-94/03 Commission v Council [2006] ECR I-1, para 36 and Case C-211/01 Commission v Council [2003] ECR I-8913, para 40; see further eg Case C-300/89 Commission v Council [1991] ECR I-2867, paras 13 and 17; Case C-42/97 European Parliament v Council [1999] ECR I-869, paras 38 and 43; Case C-336/00 Republik Österreich v Martin Huber [2002] ECR I-7699, para 31; Opinion 2/00 [Cartagena Protocol] [2001] ECR I-9713, para 23; Case C-211/01 Commission v Council [2003] ECR I-8913, para 40; Case C-281/01 Commission v Council [2002] ECR I-12049, para 35; Case C-178/03 Commission v Parliament and Council [2006] ECR I-107, para 43. ¹⁵⁹ Case C-91/05 Commission v Council [2005] OJ C115/10, para 76. ¹⁶⁰ Case C-178/03 [2006] ECR I-107, para 57. See also, to that effect, Case C-300/89 Commission v Council [1991] ECR I-2867, paras 17–-21; Joined Cases C-164/97 and C-165/97 Parliament v Council [1999] ECR I-1139, para 14; Case C-338/01 Commission v Council [2004] ECR I-4829, para 57.

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unanimously (subject to the application of Article 23(2) EU), Article 179(1) EC provides for development cooperation that ‘the measures necessary to further the objectives referred to in Article 177 [EC]’ are to be adopted by the Council acting in accordance with the co-decision procedure in Article 251 EC.¹⁶¹ These procedures would indeed seem incompatible and the rights of the Parliament would likely be undermined. However, the procedural incompatibility only really exists with regard to internal measures, while the difficulties appear surmountable with regard to international agreements based on both Articles 300 EC and 24 EU, for example by negotiating different parts of an agreement under different procedures, and concluding it by way of two separate decisions.¹⁶² Could it be argued that, by not basing its reasoning on the procedural argument, but on the more principled position that the Union cannot have recourse to a legal basis falling within the CFSP in order to adopt provisions which also fall within a Community competence, the Court has shut the door not only to internal cross-pillar measures with a legal basis in both the first and the second pillars, but also to cross-pillar international agreements? It has already been argued above that such an approach could stand in the way of the overall consistency and effectiveness of EU external relations in general and development cooperation policy in particular. It would, moreover, be inconsistent with the fact that while, up until now, there have been no first pillar-second pillar cross-pillar mixed agreements, nor internal measures,¹⁶³ there is an example of a first pillar-third pillar cross-pillar ¹⁶¹ Opinion in Case C-91/05 Commission v Council [2005] OJ C115/10, fn 76, adding that it is also doubtful whether the procedures for adopting decisions granting financial and/or technical support and based on acts of a general nature in one or the other pillar can be reconciled, because in the context of Title V of the EU Treaty competence for adopting such decisions falls to the Council, whereas in the context of development cooperation it will be for the Commission to adopt measures of financial and/or technical support. ¹⁶² As suggested by P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 184. ¹⁶³ There have, however, been legal instruments adopted on combined second pillar-third pillar legal bases. An example of an international agreement is Council Decision 2006/729/CFSP/JHA of 16 October 2006 on the signing, on behalf of the European Union, of an Agreement between the European Union and the United States of America on the processing and transfer of passenger name record (PNR) data by air carriers to the United States Department of Homeland Security [2006] OJ L298/27, having as its legal basis both Arts 24 and 38 EU. Examples of internal measures are Joint Action 96/668/CFSP of 22 November 1996 adopted by the Council on the basis of Articles J.3 and K.3 of the Treaty on European Union concerning measures protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom [1996] OJ L309/7; Council Common Position 2001/930/ CFSP of 27 December 2001 on combating terrorism [2001] OJ L344/90; Council Common Position 2001/931/CFSP, at issue in Case C-354/04 P Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti v Council [2007] ECR I-1579 and Case C-355/04 P SEGI, A. Zubimendi Izaga, A. Galarraga v Council [2007] ECR I-1657. In his joint Opinion in both cases, Mengozzi AG qualified Common Position 2001/931/CFSP as ‘an act which, as far as its objectives are concerned, comes within the framework of the common foreign and security policy under Title V of the EU Treaty. However, some of the measures for which that act provides—those affecting the appellants

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mixed agreement: the agreement between the EU, the EC, and Switzerland on the latter’s association with the implementation, application, and development of the Schengen acquis.¹⁶⁴ None the less, the Community’s Partnership and Cooperation Agreements with Russia and the Ukraine contain a strong ‘cross-pillar’ dimension. While they were concluded as classical mixed agreements, they anticipate cross-pillar mixity, in the sense that they relate to the different sub-orders of the Union. As such, they reveal the emerging system of EU external relations, ‘encompassing and projecting externally the different facets of the Union’.¹⁶⁵ Partnership and Cooperation Agreements are, however, not cross-pillar in the strict legal sense, given that the Union lacked the competence to enter into treaties at the time they were concluded: they are rather ‘proto cross-pillar agreements’.¹⁶⁶ The Union’s objectives are fulfilled through the participation of the Member States alongside the Community, and mixity is used to project the Union externally, in all its different facets. The Partnership and Cooperation Agreements thus represent a new formula of mixed agreements, involving a ‘two-dimensional mixity’.¹⁶⁷ The potential for cross-pillar mixed agreements in the formal sense would cease to exist under the Treaty of Lisbon, because of the introduction of one single legal personality for the entire Union. All international agreements would be agreements of the Union.¹⁶⁸ Article 218 TFEU¹⁶⁹ would provide a unified procedure for concluding international agreements on any aspects of Union external relations, but some procedural differences would remain between those aspects of the agreement relating to what used to be Community external relations and those relating to the CFSP. This implies that even under the ‘de-pillarized’ procedure Gestoras Pro Amnistía and Segi, which are laid down in Article 4 (that is to say, mutual assistance between Member States to prevent and combat terrorist acts and, in particular, in connection with investigations and criminal proceedings against the persons named on the annexed list)—are operational instruments and as such come within the scope of police and judicial cooperation in criminal matters under Title VI of the EU Treaty.’ ¹⁶⁴ See Council Decision 2004/849/EC of 25 October 2004 on the signing, on behalf of the European Union, and on the provisional application of certain provisions of the Agreement between the European Union, the European Community and the Swiss Confederation concerning the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis [2004] OJ L368/26 and Council Decision 2004/860/EC of 25 October 2004 on the signing, on behalf of the European Community, and on the provisional application of certain provisions of the Agreement between the European Union, the European Community and the Swiss Confederation, concerning the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis [2004] OJ L370/78. ¹⁶⁵ C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 58. ¹⁶⁶ The expression is from C Hillion, ibid, 98. ¹⁶⁷ Ibid, 98, also arguing that practice with regard to the Partnership and Cooperation Agreements may provide a model for bridging the gap between the pillars: see ch 8.5. ¹⁶⁸ Ibid, 229 (regarding the Constitution). ¹⁶⁹ cf Art III-325 TC. See ch 4.3.3.4.

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under the Treaty of Lisbon, there would have to be a clear separation between the economic aspects of the agreement and the aspects relating to ‘high politics’.¹⁷⁰

8.5 Conclusions A hierarchical conception of the relationship between the first and second pillars seems misconceived. Fuller remarked that the seemingly insuppressible urge to find some hierarchy in a legal system, and hence to view law as a hierarchy of command, is essentially driven by the fear that lack of such a hierarchy may lead to chaos and render any conflict resolution effectively impossible. To this, Fuller objected that it is by no means clear that a neatly defined hierarchy is always the best way of solving conflicts within a legal system, and that any legal system, even the most hierarchically structured, may at some point break down.¹⁷¹ He also remarks that the conception of law as a hierarchically ordered system is nothing more than the legal expression of the ‘political nation state’.¹⁷² Such hierarchical conceptions are inappropriate for a polity like the EU, which aims to move beyond the nation State. In one sense, the EU Treaty appears to establish a hierarchy between the Community and the CFSP.¹⁷³ There is Article 1 EU, defining the Union as ‘founded on the European Communities, supplemented by the policies and forms of cooperation established by this Treaty’,¹⁷⁴ and the untouchability of the acquis communautaire, as per Article 2, fifth indent EU and Article 3, paragraph 1 EU. There is Article 47 EU, the ratio legis of which is indeed the prevention of ‘contamination’ of the Community by the CFSP and the preservation of the autonomy of the Community within the EU legal order.¹⁷⁵ Implying from these provisions that there exists a clear hierarchy between the Community and the CFSP does not fully reflect the complexity of the relationship between these two sub-orders of the Union legal order. As argued above, these provisions put in their context rather call for a balance between preserving the acquis communautaire and enabling the CFSP to develop fully and effectively, thus providing for a consistent EU foreign policy. ¹⁷⁰ cf on the Constitution: C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 231–232. ¹⁷¹ L Fuller, The Morality of Law (1969) 111–113. ¹⁷² Ibid, 110. ¹⁷³ As argued by C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 137–139. ¹⁷⁴ Emphasis added. ¹⁷⁵ See the Opinion of Sharpston AG in Case C-212/06 Gouvernement de la Communauté française and Gouvernement wallon [2006] OJ C178/18, point 138; cf P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 146; C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 137–138. On the autonomy of the Community legal order: R Barents, The Autonomy of Community Law (2004).

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The attempt to establish a clear hierarchy between different aspects of EU foreign policy would become even more difficult should the Treaty of Lisbon ever come into force. First, as mentioned above, Article 1(2) TFEU would clearly provide that both the EU Treaty and the Treaty on the Functioning of the European Union would have the same legal value. Secondly, while Article 47 EU prohibits the CFSP from treading on Community territory, New Article 40 EU¹⁷⁶ would prohibit 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. Consequently, under the Treaty of Lisbon, the Court would have to police the border looking at both sides. This would enable the Court to review cases in which Community instruments or procedures are used to the detriment of CFSP instruments and procedures. It is hard to see how the Court would be able to scrutinize intrusions on CFSP territory by ‘first pillar’ measures, which it would be obliged to do under Article 275 TFEU and New Article 40 EU,¹⁷⁷ if Article 275 TFEU¹⁷⁸ were to exclude the Court from any jurisdiction to interpret those CFSP provisions.¹⁷⁹ Moreover, the CFSP would under the Treaty of Lisbon lose its most important distinctive feature: its specifically conferred objectives. This would make the objectives-based analysis sketched out regarding the Small Arms and Light Weapons case difficult, if not impossible. For example, the distinction suggested by Advocate General Mengozzi between ‘preserving peace and/or strengthening international security’ (CFSP) and ‘social and economic development’ (development cooperation) would not resolve any first pillar/second pillar border conflict under the Treaty of Lisbon: both would fall under the general objectives of the Union’s external action, under New Articles 21(2)(c) and 21(2) (d) EU, respectively. Ironically, while the Treaty of Lisbon would give the Court jurisdiction to arbitrate on ‘encroachment’ by the ‘first pillar’ on CFSP territory, the absence of specific CFSP objectives would make it more difficult to defend that territory.¹⁸⁰ Under the present constitutional structure, a review of Community instruments trespassing on second or third pillar territory is only possible in the sense that a Community instrument might be found to be outside the scope of Community competences, and thus infringe the principle of conferral. From the fact that a certain action cannot be taken under an EC Treaty legal basis, it could be deduced that it would be possible to act on the basis of a second (or third) ¹⁷⁶ cf Art III-308 TC. ¹⁷⁷ cf Arts III-376, para 2 and III-308 TC. ¹⁷⁸ cf Art III-376, para 1 TC. ¹⁷⁹ See similar remarks regarding the Constitution by P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 163. ¹⁸⁰ Similarly regarding the Constitution: MG Garbagnati Ketvel, ‘The Jurisdiction of the European Court of Justice in Respect of the Common Foreign and Security Policy’ (2006) 55 ICLQ 104.

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pillar provision. The Court does not, however, have jurisdiction directly to review the legality of a Community measure in the light of Title V the EU Treaty. This can be illustrated by looking at the PNR case.¹⁸¹ The European Parliament had brought actions for annulment against, respectively, Council Decision 2004/496/ EC of 17 May 2004 on the conclusion of an Agreement between the European Community and the United States of America on the processing and transfer of PNR data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs, and Border Protection,¹⁸² and against Commission Decision 2004/535/EC of 14 May 2004 on the adequate protection of personal data contained in the Passenger Name Record of air passengers transferred to the United States’ Bureau of Customs and Border Protection.¹⁸³ Of interest in this context is that the European Parliament argued that Article 95 EC was incorrectly chosen as the legal basis for the Council decision. In his Opinion, Advocate General Léger referred to the principle of conferral and after analysing the aim and content of the agreement concluded that Article 95 EC was not the appropriate legal basis.¹⁸⁴ He then went on to consider that ‘[i]t would, admittedly, be interesting at this stage to consider what the appropriate legal basis of such a decision would be. However, the Court is not required to address that tricky question in this case.’ While the Advocate General did not state what he thought the appropriate legal basis would be, he did seem to hint at the possibility of finding an appropriate legal basis in either the second or the third pillar.¹⁸⁵ The Court, unsurprisingly, confined itself to ruling that Article 95 EC was indeed not the appropriate legal basis, without any indication of what the appropriate legal basis might be.¹⁸⁶ The Court would have to scrutinize intrusions on CFSP territory by ‘Community’ measures, pursuant to Article 275 TFEU and New Article 40 EU¹⁸⁷ Such scrutiny would obviously be deprived of its object if any annexation of CFSP territory by the Community would always and per se be approved. However, when conflicts between first and second pillar external relations are resolved in favour of either one, this should not be seen as subordinating the one to the other, but as an identification and division of responsibilities between interlocking systems for foreign policy-making within one multi-layered constitutional system. This is not to deny that the institutions and the Member ¹⁸¹ Joined Cases C-317/04 and C-318/04 European Parliament v Council and Commission [2006] ECR I-4721. ¹⁸² [2004] OJ L183/83. ¹⁸³ (notified under document number C(2004) 1914) [2004] OJ L235/11. ¹⁸⁴ Opinion of Léger AG, points 126–156. ¹⁸⁵ Opinion of Léger AG, points 157–161, especially fnn 78–79. ¹⁸⁶ Joined Cases C-317/04 and C-318/04 European Parliament v Council and Commission [2006] ECR I-4721, paras 67–70; for some interesting thoughts on that question: MC Lang, ‘Cour de justice, 30 mai 2006 Parlement/Conseil et Parlement/Commission’ [2006] Law & European Affairs 345–347. ¹⁸⁷ cf Arts III-376, para 2 and III-308 TC.

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States quite often do look upon the relationship between first and second pillar foreign relations as a hierarchical one, or at least one governed by turf wars. While such a view may be understandable from a standpoint of Realpolitik, it is not helpful for overall consistency in the EU’s external relations.¹⁸⁸ ‘Die grundsätzliche Gleichrangigkeit folgt aus dem Kohärenzgebot: Das Kohärenzgebot verlangt . . . nicht eine Anpassung des Rechts der einen Säule an das Recht einer anderen, sondern eine gegenseitige Abstimmung der Säulen.’¹⁸⁹ Keukeleire describes the relationship between Community and CFSP as one of mutual ‘contagion’ and of symbiosis. While one could argue that this runs counter to the intention of the drafters of the Treaty of Maastricht, who devised the pillar construction with the intention of keeping ‘high politics’ outside the Community method, one can equally take the view that these many overlaps and parallels between first and second pillar external relations are beneficial for the overall consistency and effectiveness of the Union’s external relations. It must be possible both to protect the acquis communautaire and to allow for an effective CFSP and a consistent EU foreign policy in general. This line of argument is supported by the experience with regard to the Partnership and Cooperation Agreements between the Community on the one hand, and Russia and the Ukraine on the other hand, which were concluded as mixed agreements. The aspects of the agreements not falling within the ambit of the Community seemed to belong to the Member States’ competences only,¹⁹⁰ but as argued by Hillion, in fact equally entered the terrain of the CFSP (and what used to be the JHA). The Union itself was not able to become a party to the Partnership and Cooperation Agreements, because it did not possess legal personality at the moment the Partnership and Cooperation Agreements were signed, nor was there any procedure to conclude agreements pertaining to matters not belonging to the Community sphere of competences. While thus only the Community and the Member States were party to the Agreements, the latter rely on the EC Treaty to fulfil the objectives of the Union, and are inspired by the CFSP objectives.¹⁹¹ The ‘high politics’ dimension of the Partnership and Cooperation Agreements in itself is not sufficient to make a mixed agreement indispensable.¹⁹² Certain foreign policy aims of an agreement can be achieved through pure Community instruments.¹⁹³ However, this can only be the case if such measures have an ¹⁸⁸ Similarly: P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 153–154. ¹⁸⁹ C Trüe, ‘Verleihung von Rechtspersönlichkeit and die Europäische Union und Verschmelzung zu einer einzigen Organisation—deklaratorisch oder konstitutiv?’ (1997) 43. ¹⁹⁰ cf C Flaesch-Mougin, ‘Quel partenaire européen pour la Fédération de Russie: Union européenne, Communautés, Etats Membres?’ in J Raux and V Korovkine (eds), Le Partenariat entre L’Union européenne et la Fédération de Russie (1998) 60–63. ¹⁹¹ C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 57–58. ¹⁹² Ibid, 58–59. ¹⁹³ Case C-70/94 Fritz Werner Industrie-Ausrüstungen GmbH v Germany [1995] ECR I-3189, para 10.

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independent legal basis in the EC Treaty and thus mainly or at least not secondarily further a Community objective. If the Community framework is used, a legal basis in the EC Treaty is necessary. However, given that the CFSP provisions of the EU Treaty are binding on the Member States, CFSP objectives and provisions have to be taken into account by the institutions and the Member States as required by the Common Provisions of the EU Treaty, and in view of the general objectives of the Union. Article 2 EU’s aim of asserting the Union’s ‘identity on the international scene’ is not only achieved through the CFSP, but equally through those aspects of EU foreign policy falling under the Community.¹⁹⁴ The Partnership and Cooperation Agreements are thus examples of legal instruments involving the Community and the Member States that are inspired by the objectives of the EU Treaty, and the establishment, implementation and further development of which are subject to the observance of various principles of the Union, particularly with regard to respect for human rights, democratic principles and the rule of law.¹⁹⁵ The Partnership and Cooperation Agreements contain provisions on political conditionality straddling the pillars and contributing to fulfilling the objectives and obligations of the Union, and establish a political dialogue involving the Union’s institutional framework. They can truly be described as foreign policy legal instruments of the Union.¹⁹⁶ However, particularly after the judgment in the Small Arms and Light Weapons case,¹⁹⁷ one cannot help wondering what room will be left for the CFSP, which seems to be progressively reduced to its defence aspects within the CSDP/ESDP framework as the scope of Community external relations expands.¹⁹⁸ It is quite striking how the Treaty of Lisbon contains specific goals and objectives for the CSDP, next to the overall objectives of EU external actions,¹⁹⁹ yet does not seem to have come up with any specific ones for the CFSP. The significance of this omission should not be underestimated. Lacking a detailed and specific attribution of competences, the demarcation of the CFSP’s terrain of action depends to a large extent on its own specific objectives. This does not imply that the Community is in no way affected by the CFSP. As argued by Hillion and as should be clear from the above, the Court’s pronouncement in Centro-Com whereby Member States’ foreign policy measures must ‘respect the provisions adopted by the Community in the field of the common commercial policy’²⁰⁰ has to be nuanced, where Member States act in the ¹⁹⁴ C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 61. ¹⁹⁵ Ibid, 71. ¹⁹⁶ Ibid, 97–98. ¹⁹⁷ Case C-91/05 Commission v Council [2005] OJ C115/10. ¹⁹⁸ cf P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (2004) 165. ¹⁹⁹ New Arts 3(5) and 21 EU (cf Arts I-3(4) and III-292 TC). ²⁰⁰ Case C-124/95 The Queen, ex parte Centro-Com Srl v HM Treasury and Bank of England [1997] ECR I-81, para 27.

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framework of the Union.²⁰¹ This is so with regard to the economic sanctions regime, in the framework of which a CFSP legal instrument triggers the bringing into existence of a Community obligation. Diplomatic and consular missions of the Member States and the Commission Delegations in third countries and international conferences, and their representations to international organizations, are under an obligation to ensure that the common positions and joint actions adopted by the Council are complied with and implemented.²⁰² Human rights clauses²⁰³ inserted in mixed agreements imply the possibility for the EU to review Community commitments vis-à-vis a third country in consideration of a change in the political situation. Trade commitments of the Community cannot prevent the Member States, acting in the framework of the Union, from reviewing the trade regime even where the other party violates principles promoted by the EU. CFSP actions can thus affect Community law it without violating it.²⁰⁴ The image emerging from the analysis above of the existing and emerging system of EU foreign policy is one of an inherent constitutional ‘messiness’, rather than one of three neatly separable pillars. This creates numerous problems of efficiency, transparency, and accountability, but equally opens up the possibility of an understanding of the Union as a pluralistic constitutional order.²⁰⁵

²⁰¹ C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 133. ²⁰² Art 20 EU. Further: F Fink-Hooijer, ‘The Common Foreign and Security Policy of the European Union’ (1994) 5 Eur J Intl L 191. ²⁰³ In general: L Bartels, Human Rights Conditionality in the EU’s International Agreements (2005). ²⁰⁴ cf C Hillion, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (2005) 133–134. ²⁰⁵ cf A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (2002) 122. Further: RA Wessel, ‘The Constitutional Unity of the European Union: The Increasing Irrelevance of the Pillar Structure?’ in J Wouters and P Kiiver (eds), European Constitutionalism beyond the EU Constitution (forthcoming (2008)).

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PA RT FOU R CONC LUSIONS

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Conclusions The Constitutional Particularities of EU Foreign Policy This book has addressed the question of how foreign policy fits into the constitutional structure of the EU. It has done so by identifying the constitutional particularities in the external relations of the Community/Union as compared with its internal policies, and within the former, the particularities of the common foreign and security policy (CFSP) as compared with Community external relations. Part One examined the particularities of the operation of the principles of conferral and primacy, as well as of the Community method, within Community external relations. Chapter 1 analysed the principle of conferral and the most significant particularity of its operation within Community external relations: the great importance of the doctrine of implied competences, which has a very limited scope of application in internal matters. Chapter 2 examined the principle of exclusivity as the typical expression of primacy in Community external relations, and identified the principle of loyalty as enshrined in Article 10 EC as the common foundation for both principles. It was argued that while the primacy principle does not necessarily prevent the Member States from adopting any legislation, the exclusivity principle does prevent the Member States from entering into certain international obligations damaging to the Community’s interests. Chapter 3 examined the particularities of the Community method within EC external relations. It was found that the role of the European Parliament in the Community’s external relations, while larger than in the second pillar, is still a great deal smaller than with regard to internal Community policies. It was also argued that, while the role of the Commission and the Council in autonomous Community external relations measures is similar to their role in internal matters, the difference between the procedure for making international agreements and the law-making procedure for autonomous measures or for internal matters is striking: the Commission’s right of initiative is much more restricted, and the involvement of the European Parliament is very limited, while the Council plays a more dominant role. The procedure for making international agreements contains another striking particularity: a comprehensive codification of all procedural aspects in Article 300 EC. No equivalent provision regarding internal competences exists. The contrast between internal and external policies

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regarding the involvement of the Commission in implementation was also noted. In internal matters, the role of the Commission is mostly limited to the issuance of short-term regulations, while the Member States are responsible for the implementation ‘on the ground’. Regarding external competences, however, the Commission plays a central role in ‘on the ground’ implementation regarding dedicated external relations competences. Finally, the specific role of the Court of Justice in Community external relations was examined, as well as the approaches it has developed that are unique to external relations. A further prominent particularity of EC external relations regarding the role of the Court of Justice is the procedure for a preliminary Opinion, as laid down in Article 300(6) EC. A similar procedure does not exist with regard to internal matters. Part Two drew a further contrast between the concepts, principles, and legal techniques examined in Part One as they apply in relation to the CFSP and their operation under Community external relations. Chapter 4 analysed the striking particularity in the way competences are attributed within the CFSP: the absence of the technique of detailed and specific attribution of competences typical of the Community. It was argued that the CFSP objectives determine the Union’s competences to the extent that any CFSP action should be connected to them, in accordance with the principle of conferral, but that the absence of detailed and specific attribution of competences indicates that the principle of conferral applies in a different sense in the CFSP legal order. The most significant particularity with regard to the operation of the principle of conferral in EC external relations, the doctrine of implied competences, was found to be applicable to the EU Treaty by virtue of international law, but it was argued that the nature of the attribution in Title V would seem to leave virtually no scope for implied competences. The specific legal instruments available to the Union in the CFSP were analysed, and the absence of any legislative character in most—though not all—of them was noted. It was concluded that the existing CFSP legal instruments are adapted to the purpose of making executive decisions legally binding, and are thus a function of the particularity of the CFSP as it stands. The particularity of CFSP decision-making with regard to autonomous measures was found to lie in the predominance of the institutions in which the Member States are directly represented: the European Council and the Council. It was also argued that contrary to what is the case in the Community, the formal distinction between the preparation and the adoption of Council measures is unknown to the CFSP, and the Council, its Presidency and various Council bodies have the lead in implementing adopted measures. The most significant particularity of the CFSP treaty-making procedure was found to lie in the minimal role of the Commission, and the complete dominance of the Council and the Presidency, which corresponds to the situation regarding the adoption of autonomous CFSP measures. Finally, it was found that supervision of the implementation of CFSP acts is very different from what happens within the Community. The Court of Justice lacks any substantive jurisdiction within Title V of the EU

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Treaty, and neither the Commission nor the Parliament, which also lacks any real supervisory powers over the Council, can review CFSP implementation measures by the Council or the Member States. It was argued that this makes the EU in the CFSP operate much more like an ‘ordinary’ international organization than under the EC Treaty. Chapter 5 addressed the role of democratic accountability and the rule of law in EU foreign policy in general and more particularly in the CFSP. It examined the clear contrast with the Community regarding the involvement of the European Parliament in treaty-making, in that Article 24 EU completely excludes Parliament from involvement in the procedure, and noted the potentially larger role the Member States’ parliaments could play in the democratic scrutiny of the CFSP than with regard to the first pillar. It was also noted that, while Regulation (EC) 1049/2001 of the European Parliament and the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents¹ explicitly applies to the CFSP, access is more restricted than with regard to first pillar documents. One of the most notable differences between the first and second pillars was examined: the exclusion of the Court of Justice from the second pillar. A number of lacunae were identified, including the lack of a legal remedy if a CFSP measure has an impact on individuals without having to be implemented either by a Community or a Member State act that would be challengeable, and the current lack of a procedure equivalent to Article 300(6) EC with regard to international agreements falling within the CFSP. Chapter 6 further examined the dichotomy between Community external relations and the CFSP. It noted that the CFSP has traditionally been judged to be outside the ‘new legal order’, but addressed the question of how far it can be said that the second pillar none the less already forms part of that ‘new legal order’ established by the EC Treaty. It then considered whether the Constitution contained, and the Treaty of Lisbon contains, proposals that would helpfully move the CFSP in the direction of communitarization, by examining the potential applicability of primacy and direct effect in the second pillar and analysing the role that is proposed for the High Representative of the Union for Foreign Affairs and Security Policy (HRUFASP). Finally, the origins of the dichotomy between EC external relations and the CFSP were traced. It was found that the dichotomy between first and second pillar external relations is based on the disjunction between two core aspects of foreign policy: external economic relations sensu lato, such as external trade, development cooperation and emergency aid, falling within the Community, and what is commonly called ‘high politics’ (diplomatic activity and security and defence issues), falling within the CFSP. It was argued that the equation of integration with communitarization—a result of the Community’s place as the paradigmatic core of the Union—seriously compromises the necessary debate on how to forge a foreign policy whereby both ¹ [2001] OJ L145/43.

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the Member States and the Union are left enough space for semi-autonomous international action. The apparent impossibility of reconsidering the Court of Justice’s role in the CFSP was found to exemplify the results of this approach. It was concluded that, while it is true that accountability and the rule of law are present to a greater extent in the first than in the second pillar, it does not follow that the only way to enhance their operation over the whole field of foreign policy is to transfer it entirely to the Community. Part Three examined constitutional concepts, principles, and legal techniques, which, in practice, have been found to have a more significant part to play in Union foreign policy than in its internal policies, or which have developed specifically in the field of external relations. Chapter 7 analysed two constitutional concepts of vital importance for the management of the vertical division of competences: the technique of mixity and the vertical aspect of the principle of consistency. This allowed the flexibility with which the Union legal order addresses the specific needs of external relations to be brought to the fore. Chapter 8 examined the operation of the horizontal aspect of the principle of consistency, and analysed the interaction between first and second pillar aspects of foreign policy in relation to two case-studies. The tendency was examined vertically to move away from autonomous Member State regulation, and horizontally to move away from CFSP regulation towards the Community framework, while it was equally noted that there exist instances of ‘contamination’ between the second and the third pillar in both directions. The significance of these particularities should be neither underestimated nor overestimated. Their significance should not be underestimated because, although distinctions between external and internal and between Community external relations and the CFSP are often difficult to draw in practice, they still underlie the Union’s constitutional structure. Institutions and Member States still wage competence wars among themselves and with each other. The label ‘foreign policy’ still implies substantial limits on the operation of such core principles as accountability, the rule of law and human rights, and this is even more the case with regard to the CFSP.² While these differences are to an extent justified, they are not as unassailable as is often presumed.³ These particularities are also important in debates on constitutional reform within the Union. The complex ² ch 5. ³ cf TM Franck, Political Questions/Judicial Answers. Does the Rule of Law Apply to Foreign Aff airs? (1992) 38, who refers to the practice in US courts of ‘semantic cataloguing’ as the prevalent means for deciding conceptually difficult cases without addressing the underlying structural issues: ‘Courts, especially lower courts, announce that a case deals with “foreign relations” and that this makes the issue being litigated a “political question” requiring “judicial deference” to the political branches. None of the three terms are defined; they are used as if their content and relevance to the case were self-evident.’; ibid, 52, referring to the ‘thaumaturgic invocation of “foreign policy” by the political branches of government’.

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dynamic between internal and external policies and between ‘technical’ and ‘political’ foreign policy is, in debates on reform, often reduced to a simple struggle between those who want further communitarization and those who do not.⁴ The disjointed structure of foreign policy proposed by the Treaty of Lisbon—which would be the only substantive area of policy split between the EU Treaty and the Treaty on the Functioning of the European Union—is the result of this reductionist dichotomous debate, and foreign policy is stuck between the desire of some to communitarize it⁵ and the desire of others to prevent just that. The significance of these particularities should not be overestimated because the EU legal order is in reality more complex and operates more flexibly than an initial glance at the Treaties might imply. For example, the Community legal order has met the demands of both its internal constitutional structure and international relations by complementing its internal competences where necessary by external ones through the implied competences doctrine.⁶ The principles of primacy and loyalty, as well as the Community method, though taking on different forms, operate in internal as well as external Community policies, and adapt to the different needs of both spheres.⁷ While qualified majority voting (QMV) is more common in the Community than in the CFSP, the fact that in both the first and the second pillar, QMV most often comes down to a de facto consensussystem, makes the contrast between the pillars less blunt in this respect than might first appear.⁸ While the current EU Treaty, in contrast to the EC Treaty to the Community, lacks an explicit grant of legal personality to the Union, this does not seem to matter much in the daily Treaty-making practice of the Union.⁹ The Member States play a large role in implementing both Community and CFSP external relations, and this implementation in both cases takes place against a background of solidarity and cooperation.¹⁰ The involvement of the European Parliament in Community decision-making is most far-reaching in the legislative sphere, and hence only some aspects of the non-involvement of the European Parliament in CFSP decision-making really contrast with the Community.¹¹ While the absence of the Court of Justice from the second pillar is striking, some scope for jurisdiction exists in Article 47 EU, with regard ⁴ ch 6.4. ⁵ This was even more the case in the Constitution, with eg Art I-6 TC and the single title on ‘External Action of the Union’. A debate was also possible on whether the phrase ‘on a Community basis’ in Art I-1(1) TC could have been read as implying a commitment to regard communitarization as the final goal for every single one of the Union’s competences, including the CFSP. In that sense: E Denza, ‘Lines in the Sand: Between Common Foreign Policy and Single Foreign Policy’ in T Tridimas and P Nebbia (eds), European Union Law for the Twenty-First Century: Rethinking the New Legal Order. Vol. 1: Constitutional and Public Law. External Relations (2004) 264 et seq. ⁶ ch 1. ⁷ chs 2–3. ⁸ ch 3.2.2 and ch 6.4. ⁹ ch 4.3.3.4. ¹⁰ ch 3.4 and ch 4.3.4.1. ¹¹ ch 3 and ch 5.1.

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to damages, with regard to a preliminary ruling on whether a measure adopted under the second pillar should properly have been adopted under the first pillar, and in the possibility of indirect review.¹² Article 47 EU is designed to preserve the integrity of the Community order, but the difficult balance between preserving the acquis communautaire and allowing the Union to develop a consistent and efficient foreign policy was illustrated by the Small Arms and Light Weapons case.¹³ The Union institutions and the Member States in practice appear often not to be over-concerned with the precise horizontal¹⁴ or vertical division of competences, adopting measures that straddle the pillars and not explicitly differentiating between the Community and Member State competences used to conclude international agreements.¹⁵ The Union manages the vertical and horizontal division of external relations competences through a combination of pragmatism¹⁶ and principle, most importantly the principle of loyal cooperation. In light of the Pupino judgment,¹⁷ it is strongly arguable that the principle of loyal cooperation applies over EU law in its entirety and can give rise to the application of the duty of consistent interpretation in the CFSP.¹⁸ The Union’s foreign policy operates as a multi-level system with many interactions between the sub-orders.¹⁹ The complexity of the relevant arrangements this involves is, to a significant degree, unavoidable in a constitutional order of States. It appears to suit the Union’s post-Maastricht divided persona; the Union more often than not manages to project its unity in diversity outwardly. None the less, there are improvements, identified throughout this study, which could be achieved.

EU Foreign Policy, Identity, and Law This does not imply that law, in the form of Treaty amendments or otherwise, can be the solution to all the Union’s foreign policy quandaries. The crux of the lack of development and efficiency of EU foreign policy would seem to be the lack of political will of the Member States, and their differing visions on the various matters of foreign policy. For example, apart from the fact that the dichotomy between first and second pillar external relations has been integral to the Union ¹² ch 5.3.2.1. ¹³ Case C-91/05 Commission v Council [2005] OJ C115/10; see ch 8. ¹⁴ See eg D Curtin and I Dekker, ‘The EU as a “Layered” International Organization: Institutional Unity in Disguise’ in P Craig and G de Búrca (eds), The Evolution of EU Law (1999) 112–122; W van Gerven, The European Union: A Polity of States and Peoples (2005) 57–58. ¹⁵ chs 7–8. ¹⁶ eg through mixity: ch 7.2. ¹⁷ Case C-105/03 Criminal proceedings against Maria Pupino [2005] ECR I-5285. ¹⁸ chs 6.2 and ch 7.3. ¹⁹ cf M Cremona, ‘External Relations and External Competence: The Emergence of an Integrated Policy’ in P Craig and G de Búrca (eds), The Evolution of EU Law (1999) 152.

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as a concept, two rather mundane reasons explain why it has proven so persistent, and why it is unlikely to disappear in the foreseeable future. First, whether or not the distinction between high politics and other parts of foreign policy is difficult to make—and governments often do still use the distinction in their own national foreign policies as well—the Member States still wish to remain firmly in control of every aspect of foreign policy that they regard as dependent on political judgment. The CFSP is designed and suited to make this possible. Secondly, the assets needed for pursuing an effective foreign policy, such as military and police assets, and a powerful and flexible diplomatic service, remain in the hands of the Member States, and rather few of them. The Member States, especially the ones possessing these assets to a sufficient extent, do not seem prepared to hand them over to the Union in the near future. The Member States’ foreign policies are inherently part of their identities,²⁰ and creating a more common foreign policy for the Union would require a more common EU identity composed of principles and values made concrete in aims.²¹ This same identity could be asserted on the international scene²² and could form the basis of the Union’s external activities: Respect for human rights and fundamental freedoms and the principle of the rule of law are therefore an ‘internal’ dimension, being a foundation of the Union and a criterion for assessing the legality of the action of its institutions and of the Member States in the matters for which the Union has jurisdiction, and an ‘external’ dimension, as a value to be ‘exported’ beyond the borders of the Union by means of persuasion, incentives and negotiation.²³ ²⁰ See the bleak assessment of what this means for the possibilities of EU foreign policy in V Bogdanor, ‘Discussant’s remarks’ in AA Dashwood (ed.), Reviewing Maastricht. Issues for the 1996 IGC (1996) 238–242 and P Allott, ‘European Foreign Policy: After-Life of an Illusion’ in M Koskenniemi (ed.), International Law Aspects of the European Union (1998) 219; cf D Sarooshi, International Organizations and Their Exercise of Sovereign Powers (2005) 11, who remarks that the concept of sovereignty is inextricably intertwined with identity and history. ²¹ This may be as true for the EU as for any collectivity. Cf J Rawls, A Theory of Justice (1999) 456–464; J Finnis, Natural Law and Natural Rights (1980) 152: ‘. . . sharing of aim, rather than multiplicity of interaction is constitutive of human groups, communities, societies’. See also K Nicolaïdis, ‘ “We, the Peoples of Europe . . .” ’ (2004) 83 Foreign Affairs 102–104. One of the main attempts of the Treaty of Lisbon to provide an overarching constitutional framework for the EU’s foreign policy, and for the EU in general, is that it has provided a set of values that are to govern all EU action, as well as a single set of objectives for the entire field of EU foreign policy: see New Arts 2, 3(5), and 21 EU (cf Arts I-2, I-3(4), and III-292 TC). ²² Art 2, para 1, second indent EU. This objective has disappeared from the EU Treaty in its post-Lisbon version, which has, however, kept the invocation of EU identity in connection with foreign policy in the eleventh recital to its preamble: ‘RESOLVED to implement a common foreign and security policy including the progressive framing of a common defence policy, which might lead to a common defence in accordance with the provisions of Article 42, thereby reinforcing the European identity and its independence in order to promote peace, security and progress in Europe and in the world’. ²³ Opinion of Mengozzi AG in Case C-354/04 P Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti v Council [2007] ECR I-1579 and Case C-355/04 P SEGI, A. Zubimendi Izaga, A. Galarraga v Council [2007] ECR I-1657, point 79.

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This does not, however, mean that the Union should portray itself as the world centre of political virtue.²⁴ The EU should not give the impression of basing its identity on the negation of the ‘non-European otherness’²⁵ of the wider world, as it did during its past of colonialism and imperialism.²⁶ Instead of taking the moral high ground, Europe could market itself as a continent that has learned from its terrible mistakes in the past. It could do worse than letting its foreign policy be guided by the principles that have inspired its own creation, development, and enlargement: ‘democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law’,²⁷ which would seem to call for a rejection of the traditional conception of foreign policy as purely the pursuit of national—or Union—interests.²⁸ Foreign policy and the identity and structure of the EU as a whole are inherently intertwined: the same values govern both spheres and the same process of democratic discussion is needed to enhance legitimacy.²⁹ This process of discussing and rebuilding must, however, happen against the background of the need to keep the ship afloat on the high seas.³⁰ As the Union has proven in the past, the two are not incompatible.³¹ The role of law in EU foreign policy should equally not be downplayed. As the history of European integration bears out, the role of law in international politics ²⁴ The Declaration on the Future of the European Union adopted by the European Council at Laeken, 14–15 December 2001, went down that path. ²⁵ M Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870– 1960 (2002) 112; similarly: K Nicolaïdis, ‘ “We, the Peoples of Europe . . .” ’ (2004) 83 Foreign Affairs 109. ²⁶ cf S Marks, ‘Empire’s Law’ (2003) 10 Indiana J of Global Legal Studies 460; O Wæver, ‘European Security Identities’ (1996) 34 J of Common Market Studies 122. On the EU’s (selfproclaimed) role as a ‘rule generator’ and a ‘stabilizer’: M Cremona, ‘The Union as a Global Actor: Roles, Models and Identity’ (2004) 41 CML Rev 557–563. On the intertwining of the development of international law and Europe’s imperialism: A Anghie, Imperialism, Sovereignty and the Making of International Law (2004); see further: AK Sen, Identity and Violence: The Illusion of Destiny (2006), and specifically on the alleged uniqueness of Western values: ibid, 49–58. ²⁷ New Art 21(1) EU. See also New Arts 2 and 3(5) EU. ²⁸ Though see of course New Art 21(2)(a) EU, which lists as one of the objectives of EU external action the safeguarding of ‘its values, fundamental interests, security, independence and integrity’. For an argument against traditional foreign policy: T Nagel, Equality and Partiality (1991) 179: ‘The collective pursuit of prosperity and justice for themselves by the citizens of a nation remains under a shadow while it goes on in a world like ours, where a minority of nations are islands of relative decency in a sea of tyranny and crushing poverty, and the preservation of a high standard of life depends absolutely on strict controls on immigration.’ ²⁹ cf G de Búrca, The EU Constitution: In Search of Europe’s International Identity (2005). ³⁰ cf O Neurath’s oft-quoted metaphor: ‘We are like sailors who must rebuild their ship on the open sea, never able to dismantle it in dry-dock and to reconstruct it there out of the best materials’: ‘Protocol Sentences’ in AJ Ayer (ed), Logical Positivism (1959) 201. ³¹ cf T Franck, ‘The Fervent Imagination and the School of Hard Knocks’ (2005) 16 Eur J Intl L 345: ‘There is no contest in absolute merit between imagining the ideal and getting that little incremental thing done.’

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is more than an ‘attempt to exorcise social evils by the indefatigable repetition of magic formulae’.³² It has been observed that the essence of the Community—and by extension the Union—project is to domesticate relations between states as far as possible, both among its Member States and between the Member States and third countries. ‘This means trying to bring to international problems the sense of common responsibility and structures of contractual politics which have in the past been associated almost exclusively with “home” and not foreign, that is alien, affairs.’³³ The core of the Union is therefore not the ‘Community method’, which is a means—albeit a very successful one in large areas, but the ultimate goal of domesticating foreign policy by each Member State’s acceptance of the unique identity of the other Member States within a framework of law, based not on strict hierarchy,³⁴ but on diversity and loyalty.³⁵ The development of the EU’s external relations, and of the EU in general, can be seen as an extraordinary attempt to bring foreign policy more within the realm of law and thereby to constrain its possible destructive force.³⁶ Having domesticated the Member States’ foreign policies with regard to each other, the EU is gradually moving its focus from the inside to the outside,³⁷ bringing the Member States’ foreign policies with regard to third countries more and more within the constraining and enabling framework of EU law. ³² H Morgenthau’s description of what international lawyers do: ‘Positivism, Functionalism, and International Law’ (1940) 34 AJIL 260. Compare, however, more generally, L Fuller, The Morality of Law (1969) 44: ‘With respect to the demands of legality other than promulgation . . . the most we can expect of constitutions and courts is that they save us from the abyss; they cannot be expected to lay out very many compulsory steps toward truly significant accomplishment.’ ³³ F Duchêne, ‘The European Community and the Uncertainties of Interdependence’ in M Kohnstamm and W Hager (eds), A Nation Writ Large? Foreign-Policy Problems before the European Community (1973) 19–20. ³⁴ cf FG Jacobs, The Sovereignty of Law: the European Way (2007) 52, who argues that the EU may benefit politically, diplomatically, and strategically from the fact that it is seen as an entity based on law and on values associated with the rule of law rather than as an emergent superpower. See, however, for a provocative argument in favour of transferring sovereignty to the EU level: G Morgan, The Idea of a European Superstate (2005). ³⁵ Similarly: K Nicolaïdis, ‘ “We, the Peoples of Europe . . .” ’ (2004) 83 Foreign Affairs 102–104. ³⁶ cf A Linklater, ‘A European Civilising Process’ in C Hill and M Smith (eds), International Relations and the European Union (2005) 376 et passim. ³⁷ cf M Koskenniemi, ‘International Law Aspects of the Common Foreign and Security Policy’ in M Koskenniemi (ed.), International Law Aspects of the European Union (1998) 44; C Hill and M Smith, ‘International Relations and the European Union: Themes and Issues’ in C Hill and M Smith (eds), International Relations and the European Union (2005) 12.

Bibliography Aalto, P, ‘Accession of Finland to the European Union: First Remarks’ (1995) 20 ELR 618–628. Ahmed, T and de Jesús Butler, I, ‘The European Union and Human Rights: An International Law Perspective’ (2006) 17 Eur J Intl L 771–801. Albi, A and Van Elsuwege, P, ‘The EU Constitution, National Constitutions and Sovereignty: An Assessment of a “European Constitutional Order” ’ (2004) 29 ELR 741–765. Allott, P, ‘Adherence To and Withdrawal From Mixed Agreements’ in O’Keeffe, D and Schermers, HG (eds), Mixed Agreements (Deventer, Antwerp, Boston, London, Frankfurt: Kluwer Law and Taxation Publishers, 1983) 97–121. ——,‘European Foreign Policy: After-Life of an Illusion’ in Koskenniemi, M (ed.), International Law Aspects of the European Union (The Hague, London, and Boston, Massachusetts: Kluwer Law International, 1998) 215–229. ——, Eunomia: New Order For a New World (Oxford: Oxford University Press, 2001). ——, The Health of Nations: Society and Law beyond the State (Cambridge: Cambridge University Press, 2002). Alston, P (ed.), The EU and Human Rights (Oxford: Oxford University Press, 1999). —— and Weiler, JHH, ‘An “Ever Closer Union” in Need of a Human Rights Policy: The European Union and Human Rights’ in Alston, P (ed.), The EU and Human Rights (Oxford: Oxford University Press, 1999) 3–66. Alvarez, JE, International Organizations as Law-makers (Oxford: Oxford University Press, 2005). Álvarez-Verdugo, M, ‘Mixing Tools Against Proliferation: The EU’s Strategy for Dealing with Weapons of Mass Destruction’ (2006) 11 Eur Foreign Affairs Rev 417–438. Amerasinghe, CF, Principles of the Institutional Law of International Organizations (2nd edn, Cambridge: Cambridge University Press, 2005). Amnesty International and Oxfam International, Shattered Lives: the case for tough international arms control (London and Oxford: Amnesty International and Oxfam International, 2003). Anderson, S, ‘The Changing Nature of Diplomacy: The European Union, the CFSP and Korea’ (2001) 6 Eur Foreign Affairs Rev 465–482. Andreatta, F, ‘Theory and the European Union’s International Relations’, in Hill, C and Smith, M (eds), International Relations and the European Union (Oxford: Oxford University Press, 2005) 18–38. Anghie, A, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2004). Arnull, AM, The European Union and its Court of Justice (2nd edn, Oxford: Oxford University Press, 2006). ——, Dashwood, AA, Dougan, M, Ross, M, Spaventa, E, and Wyatt, D, Wyatt & Dashwood’s European Union Law (5th edn, London: Sweet & Maxwell, 2006). —— and Wincott, D (eds), Accountability and Legitimacy in the European Union (Oxford: Oxford University Press, 2002).

Bibliography

317

Aust, A, Modern Treaty Law and Practice (2nd edn, Cambridge: Cambridge University Press, 2007). Austin, J, The Province of Jurisprudence Determined (edited by Rumble, WE, Cambridge: Cambridge University Press, 1995). Barents, R, ‘The European Communities and the Commodity Organisations’ [1984] Legal Issues of Eur Integration 77–91. ——, The Autonomy of Community Law (The Hague, London, New York: Kluwer Law International, 2004). Barnard, C, The Substantive Law of the EU: The Four Freedoms (2nd edn, Oxford: Oxford University Press, 2007). Bartels, L, Human Rights Conditionality in the EU’s International Agreements (Oxford: Oxford University Press, 2005). Bast, J, ‘On the Grammar of EU Law: Legal Instruments’ (Jean Monnet Working Paper 9/03, 2003). Beisbart, C, Bovens, L, and Hartmann, S, ‘A Utilitarian Assessment of Alternative Decision Rules in the Council of Ministers’ (2005) 6 European Union Politics 395–418. Bengoetxea, J, MacCormick, N, and Moral Soriano, L, ‘Integration and Integrity in the Legal Reasoning of the European Court of Justice’ in de Búrca, G and Weiler, JHH (eds), The European Court of Justice (Oxford: Oxford University Press, 2001) 43–85. Bergström, CF, Comitology: Delegation of Powers in the European Union and the Committee System (Oxford: Oxford University Press, 2005). Bernitz, U, ‘Sweden and the European Union: On Sweden’s Implementation and Application of European Law’ (2001) 38 CML Rev 903–934. Bieber, R, ‘Democratic Control of European Foreign Policy’ (1990) 1 Eur J Intl L 148–173. ——, ‘Democratic Control of International Relations of the European Union’ in Cannizzaro, E (ed.), The European Union as an Actor in International Relations (The Hague, London, New York: Kluwer Law International, 2002) 105–115. Bingham (Lord), ‘The Rule of Law’ (2007) 66 CLJ 67–85. Bogdanor, V, ‘Discussant’s remarks’ in Dashwood, AA (ed.), Reviewing Maastricht. Issues for the 1996 IGC (London: Sweet & Maxwell, 1996) 238–242. Bosse–Platière, I, ‘Le Parlement européen et les relations extérieures de la Communauté européenne après le Traité de Nice’ (2002) 38 Revue trimestrielle de droit européen 527–553. Bossuyt, M, The adverse consequences of economic sanctions on the enjoyment of human rights (Geneva: E/CN.4/Sub.2/2000/33, 2000). —— and Wouters, J, Grondlijnen van internationaal recht (Antwerp and Oxford: Intersentia, 2005). Bribosia, H, ‘Les Coopérations Renforcées: Quel Modèle D’intégration Différenciée Pour L’Union Européenne?’, PhD Dissertation (European University Institute, 2007). Brkan, M, ‘Exploring EU Competence in CFSP: Logic or Contradiction?’ (2006) 2 CYELP 173–207. Brown, G, ‘Lord Mayor’s banquet speech’ (London, 2007, available at ). Brownlie, I, Principles of Public International Law (6th edn, Oxford: Oxford University Press, 2003).

318

Bibliography

Burghardt, G and Tebbe, G, ‘Die Gemeinsame Aussen- und Sicherheitspolitik der Europäischen Union—Rechtliche Struktur und politischer Prozess’ (1995) 30 Europarecht 1–20. Burrows, N and Greaves, R, The Advocate General and EC Law (Oxford: Oxford University Press, 2007). Byers, M (ed.), The Role of Law in International Politics: Essays in International Relations and International Law (Oxford: Oxford University Press, 2000). Carrington (Lord), ‘European Political Co-Operation: America Should Welcome It’ (1981–1982) 58 Intl Affairs 1–6. Chalmers, D, Hadjiemmanuil, C, Monti, G, and Tomkins, A, European Union Law: Text and Materials (Cambridge: Cambridge University Press, 2006). Cheyne, I, ‘Haegeman, Demirel and their progeny’ in Dashwood, AA and Hillion, C (eds), The General Law of E.C. External Relations (London: Sweet & Maxwell, 2000) 20–41. ——, ‘International Instruments as a Source of Community Law’ in Dashwood, AA and Hillion, C (eds), The General Law of E.C. External Relations (London: Sweet & Maxwell, 2000) 254–275. Churchill, R and Scott, J, ‘The Mox Plant Litigation: the First Half-Life’ (2004) 53 ICLQ 643–676. Clapham, A, Human Rights and the European Community: A Critical Overview (BadenBaden: Nomos Verlagsgesellschaft, 1991). ——, ‘Where is the EU’s Human Rights Common Foreign Policy, and How is it Manifested in Multilateral Fora?’ in Alston, P (ed.), The EU and Human Rights (Oxford: Oxford University Press, 1999) 627–683. ——, Human Rights Obligations of Non-State Actors (Oxford: Oxford University Press, 2006). Clinton, WJ, ‘First Inaugural Address: Wednesday, January 21st, 1993’ in Inaugural Addresses of the Presidents of the United States (Washington, DC: US GPO: for sale by the Supt. of Docs., US GPO, 1989). Collet, A, ‘Le Traite de Maastricht et la Defense’ (1993) 29 Revue trimestrielle de droit européen 225–233. Collins, L, ‘Foreign Relations and the Judiciary’ (2002) 51 ICLQ 485–510. Corthaut, T, ‘Doorwerking van het tweede pijlerrecht van de EU in de Belgische rechtsorde—de Belgische rechter als doe–het–zelver in GBVB-aangelegenheden?’ in Wouters, J and Van Eeckhoutte, D (eds), Doorwerking van internationaal recht in de Belgische rechtsorde (Antwerp, Oxford: Intersentia, 2006) 377–406. Craig, P, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ [1997] PL 467–487. ——, ‘Competence: clarity, conferral, containment and consideration’ (2004) 29 ELR 323–344. ——, ‘The Constitutional Treaty: Legislative and Executive Power in the Emerging Constitutional Order’, EUI Working Paper LAW No 2004/7 (San Domenico di Fiesole, 2004). ——, EU Administrative Law (Oxford: Oxford University Press, 2006). Crawford, J, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge: Cambridge University Press, 2002).

Bibliography

319

——, The Creation of States in International Law (2nd edn, Oxford: Oxford University Press, 2006). —— and Marks, S, ‘The Global Democracy Deficit: An Essay in International Law and Its Limits’ in Crawford, J, International Law as an Open System: Selected Essays by James Crawford (London: Cameron May, 2002) 137–155. Cremona, M, ‘The Doctrine of Exclusivity and the Position of Mixed Agreements in the External Relations of the European Community’ (1982) 2 OJLS 393–428. ——, ‘External Relations and External Competence: The Emergence of an Integrated Policy’ in Craig, P and de Búrca, G (eds), The Evolution of EU Law (Oxford: Oxford University Press, 1999) 137–175. ——, ‘The External Dimension of the Single Market: Building (on) the Foundations’ in Barnard, C and Scott, J (eds), The Law of the Single Market—Unpacking the Premises (Oxford and Portland, Oregon: Hart Publishing, 2002) 351–393. ——, ‘The Draft Constitutional Treaty: External Relations and External Action’ (2003) 40 CML Rev 1347–1366. ——, The Enlargement of the European Union (Oxford: Oxford University Press, 2003). ——, ‘The Union as a Global Actor: Roles, Models and Identity’ (2004) 41 CML Rev 553–573. ——, ‘Community Report’ in Xenopoulos, XL (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Effects of International Law (Nicosia: FIDE 2006 National Reports, 2006) 319–360. Crook, JR, ‘Contemporary Practice of the United States Relating to International Law’ (2007) 101 AJIL 636–673. Curtin, DM, ‘The Constitutional Structure of the Union: A Europe of Bits and Pieces’ (1993) 30 CML Rev 17–69. —— and Dekker, I, ‘The EU as a “Layered” International Organization: Institutional Unity in Disguise’ in Craig, P and de Búrca, G (eds), The Evolution of EU Law (Oxford: Oxford University Press, 1999) 83–136. Dashwood, AA, ‘The Limits of European Community Powers’ (1996) 21 ELR 113–128. ——, ‘Why Continue to Have Mixed Agreements at All?’ in Bourgeois, JHJ, Dewost, JL, and Gaiffe, MA (eds), La Communauté européenne et les accords mixtes: Quelles perspectives? (Brussels: Presses Interuniversitaires Européennes, 1997) 93–98. ——, ‘States in the European Union’ (1998) 23 ELR 201–216. ——, ‘External Relations Provisions of the Amsterdam Treaty’ (1998) 35 CML Rev 1019–1045. ——, ‘External Relations Provisions of the Amsterdam Treaty’ in O’Keeffe, D and Twomey, P (eds), Legal Issues of the Amsterdam Treaty (Oxford and Portland, Oregon: Hart Publishing, 1999) 201–224. ——, ‘The Attribution of External Relations Competence’ in Dashwood, AA and Hillion, C (eds), The General Law of E.C. External Relations (London: Sweet & Maxwell, 2000) 115–138. ——, ‘Decision-Making at the Summit’ (2000) 3 CYELS 79–105. ——, ‘Issues of Decision-making in the European Union after Nice’ in Arnull, AM and Wincott, D (eds), Accountability and Legitimacy in the European Union (Oxford: Oxford University Press, 2002) 13–40.

320

Bibliography

Dashwood, AA, ‘Opinion 2/00, Cartagena Protocol on Biosafety’ (2002) 39 CML Rev 353–368. ——, ‘The Draft EU Constitution—First Impressions’ (2002–2003) 5 CYELS 395–417. ——, ‘The Relationship Between the Member States and the European Union / European Community’ (2004) 41 CML Rev 355–381. ——, ‘The EU Constitution—What Will Really Change?’ (2004–2005) 7 CYELS 33–56. ——, ‘Article 47 and the relationship between first and second pillar competences’, in Dashwood, AA and Maresceau, M (eds), Law and Practice of EU External Relations: Salient Features of a Changing Landscape (Cambridge: Cambridge University Press, forthcoming (2008)). —— and Heliskoski, J, ‘The Classic Authorities Revisited’ in Dashwood, AA and Hillion, C (eds), The General Law of E.C. External Relations (London: Sweet & Maxwell, 2000) 3–19. —— and Hillion, C (eds), The General Law of E.C. External Relations (London: Sweet & Maxwell, 2000). —— and Johnston, A, ‘The Institutions of the Enlarged EU under the regime of the Constitutional Treaty’ (2004) 41 CML Rev 1481–1518. de Búrca, G, The EU Constitution: In Search of Europe’s International Identity (Groningen: Europa Law Publishing, 2005). —— and Scott, J (eds), The EU and the WTO: Legal and Constitutional Issues (Oxford and Portland, Oregon: Hart Publishing, 2001). —— and Scott J, (eds), Law and New Governance in the EU and the US (Oxford and Portland, Oregon: Hart Publishing, 2006). De Feyter, K, World Development Law. Sharing Responsibility for Development (Antwerp, Groningen, and Oxford: Intersentia, 2001). De Gucht, K, Besluitvorming in de Europese Unie (Antwerp and Apeldoorn: Maklu Uitgevers, 1994). Dehousse, F and Ghemar, K, ‘Le traité de Maastricht et les relations extérieures de la Communauté européenne’ (1994) 5 Eur J Intl L 151–172. Delcourt, C, ‘The Acquis Communautaire: Has the Concept had Its Day?’ (2001) 38 CML Rev 829–870. Denza, E, Diplomatic Law. A Commentary on the Vienna Convention on Diplomatic Relations (2nd edn, Oxford: Oxford University Press, 1998). ——, The Intergovernmental Pillars of the European Union (Oxford: Oxford University Press, 2002). ——, ‘The Relationship Between International and National Law’ in Evans, MD (ed.), International Law (1st edn, Oxford: Oxford University Press, 2003) 415–442. ——, ‘Lines in the Sand: Between Common Foreign Policy and Single Foreign Policy’ in Tridimas, T and Nebbia, P (eds), European Union Law for the Twenty-First Century. Rethinking the New Legal Order. Vol. 1: Constitutional and Public Law. External Relations (Oxford: Hart Publishing, 2004) 259–272. ——, ‘Non-proliferation of Nuclear Weapons: The European Union and Iran’ (2005) 10 Eur Foreign Affairs Rev 289–311. De Witte, B, ‘Retour à “Costa”—La primauté du droit communautaire à la lumière du droit international’ (1984) 20 Revue trimestrielle de droit européen 425–454. ——, ‘The Pillar Structure and the Nature of the European Union: Greek Temple or French Gothic Cathedral?’ in Heukels, T, Blokker, N, and Brus, M (eds), The European Union after Amsterdam (The Hague: Kluwer Law International, 1998) 51–68.

Bibliography

321

——, ‘Direct Effect, Supremacy and the Nature of the Legal Order’, in Craig, P and de Búrca, G (eds), The Evolution of EU Law (Oxford: Oxford University Press, 1999) 177–213. ——, ‘The Constitutional Law of External Relations’ in Pernice, I and Poiares Madouro, M (eds), A Constitution for the European Union: First Comments on the 2003-Draft of the European Convention (Baden-Baden: Nomos Verlagsgesellschaft, 2003) 95–106. De Zwaan, JW, The Permanent Representatives Committee: Its Role in European Union Decision-Making (The Hague: North–Holland, 1995). Dinstein, Y, War, Aggression and Self-Defence (4th edn, Cambridge: Cambridge University Press, 2005). Donnat, F, ‘Régime des actes des titres V et VI du traité sur l’Union et lutte contre le terrorisme’ [2007] Revue française de droit administratif 1100–1104. Dougan, M, ‘The Convention’s Draft Constitutional Treaty: Bringing Europe closer to its lawyers?’ (2003) 28 ELR 763–793. Douglas-Scott, S, Constitutional Law of the European Union (Harlow: Pearson Longman, 2002). Dover, R, ‘The EU’s Joint Actions on Anti-personnel Mines and Unexploded Ordnance: Finding a Security Policy Identity’ (2006) 11 Eur Foreign Affairs Rev 401–416. Duchêne, F, ‘The European Community and the Uncertainties of Interdependence’ in Kohnstamm, M and Hager, W (eds), A Nation Writ Large? Foreign-Policy Problems before the European Community (London and Basingstoke, Macmillan, 1973) 1–21. Duke, S and Vanhoonacker, S, ‘Administrative Governance in the CFSP: Development and Practice’ (2006) 11 Eur Foreign Affairs Rev 163–182. Dworkin, R, A Matter of Principle (Cambridge Massachusetts and London: Harvard University Press, 1985). ——, Law’s Empire (Oxford: Hart Publishing, 1986). Edwards, G, ‘Common Foreign and Security Policy’ (1993) 13 YEL 497–509. ——, ‘Common Foreign and Security Policy: Incrementalism in Action?’ in Koskenniemi, M (ed.), International Law Aspects of the European Union (The Hague, London, and Boston: Kluwer Law International, 1998) 3–17. ——, ‘The Pattern of the EU’s Global Activity’ in Hill, C and Smith, M (eds), International Relations and the European Union (Oxford: Oxford University Press, 2005) 39–63. Eeckhout, P, The European Internal Market and International Trade: A Legal Analysis (Oxford: Clarendon Press, 1994). ——, ‘The EU Charter of Fundamental Rights and the Federal Question’ (2002) 39 CML Rev 945–994. ——, External Relations of the European Union: Legal and Constitutional Foundations (Oxford: Oxford University Press, 2004). ——, Does Europe’s Constitution Stop at the Water’s Edge? Law and Policy in the EU’s External Relations (Groningen: Europa Law Publishing, 2005). ——, ‘General Report’ in Xenopoulos, XL (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (Nicosia: FIDE 2006 National Reports, 2006) 275–317. Ehlermann, CD, ‘Mixed Agreements. A List of Problems’ in O’Keeffe, D and Schermers, HG (eds), Mixed Agreements (Deventer, Antwerp, Boston, London, Frankfurt: Kluwer Law and Taxation Publishers, 1983) 3–21. Eleftheriadis, P, ‘Aspects of European Constitutionalism’ (1996) 21 ELR 32–42. ——, ‘Cosmopolitan Law’ (2003) 9 Eur LJ 241–263.

322

Bibliography

Everling, U, ‘The Law of the External Economic Relations of the European Community’, in Hilf, M, Jacobs, FG, and Petersmann, EU (eds), The European Community and GATT (Deventer, Antwerp, London, Frankfurt, Boston, New York: Kluwer) 85–106. Fink-Hooijer, F, ‘The Common Foreign and Security Policy of the European Union’ (1994) 5 Eur J Intl L 173–198. Finnis, J, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980). Flaesch-Mougin, C, ‘Le Traite de Maastricht et les compétences externes de la Communauté européenne: a la recherche d’une politique externe de l’union’ (1993) 29 Cahiers de droit européen 351–398. ——, ‘Quel partenaire européen pour la Fédération de Russie: Union européenne, Communautés, Etats Membres?’ in Raux, J and Korovkine, V (eds), Le Partenariat entre L’Union européenne et la Fédération de Russie (Rennes : Editions Apogée, 1998) 57–83. Fouwels, M, ‘The European Union’s Common Foreign and Security Policy and Human Rights’ (1997) 15 Netherlands Q of Human Rights 291–324. Franck, TM, Political Questions/Judicial Answers. Does the Rule of Law Apply to Foreign Aff airs? (Princeton: Princeton University Press, 1992). ——, Fairness in International Law and Institutions (Oxford: Clarendon Press, 1995). ——, ‘The Fervent Imagination and the School of Hard Knocks’ (2005) 16 Eur J Intl L 343–346. Franklin, CNK, ‘Norway’ in Xenopoulos, XL (ed.), External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Eff ects of International Law (Nicosia: FIDE 2006 National Reports, 2006) 165–195. Friedman Goldstein, L, Constituting Federal Sovereignty (Baltimore, Maryland: Johns Hopkins University Press, 2001). Fuller, L, The Morality of Law (Revised edn, New Haven and London: Yale University Press, 1969). Garbagnati Ketvel, MG, ‘The Jurisdiction of the European Court of Justice in Respect of the Common Foreign and Security Policy’ (2006) 55 ICLQ 77–120. ——, ‘Almost, but not quite: The Court of Justice and Judicial Protection of Individuals in the Third Pillar’ (2007) Eur L Reporter 223–238. Garde, A, ‘Is it Really for the European Community to Implement Anti-Terrorism UN Security Council Resolutions?’ (2006) 65 CLJ 281–284. Gaudissart, MA, L’association: un mode de coopération privilégié entre la Communauté et les Etats Tiers? Une analyse juridique des accords conclus sur base de l’article 238 du traité C(E)E (le nouvel article 310 CE), PhD Dissertation (Ghent University, 2000). Geiss, R, ‘Humanitarian Safeguards in Economic Sanctions Regimes: A Call for Automatic Suspension Clauses, Periodic Monitoring, and Follow-Up Assessment of Long-Term Effects’ (2005) 18 Harvard Human Rights J 167–199. Gellner, E, Nations and Nationalism (Oxford: Blackwell Publishing, 2006). Gosalbo Bono, R, ‘Some Reflections on the CFSP Legal Order’ (2006) 34 CML Rev 337–394. Griller, S, ‘External Relations’ in De Witte, B (ed.), Ten Reflections on the Constitutional Treaty for Europe (Florence: European University Institute, Robert Schuman Centre for Advanced Studies and Academy of European law, 2003) 133–157. Gross, O and Ní Aoláin, F, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge: Cambridge University Press, 2006).

Bibliography

323

Groux, J, ‘Le parallèlisme des competences internes et externes de la Communauté économique européenne’ (1978) 14 Cahiers de droit européen 3–32. Hagel–Sørensen, K and Rasmussen, H, ‘The Danish Administration and Its Interaction With the Community Administration’ (1985) 22 CML Rev 273–300. Halberstam, D, ‘Of Power and Responsibility: The Political Morality of Federal Systems’ (2004) 90 Virginia LR 731–834. ——, ‘Constitutionalism and Pluralism in Marbury and Van Gend’ in Poiares Maduro, M and Azoulai, L (eds), The Past and the Future of EU Law: Revisiting the Classics on the 50th Anniversary of the Rome Treaty (Oxford: Hart Publishing, forthcoming (2008)). Harlow, C, Accountability in the European Union (Oxford: Oxford University Press, 2002). Harrison, R, Democracy (London and New York: Routledge, 1993). Hart, HLA, The Concept of Law (2nd edn, Oxford: Oxford University Press, 1994). Hay, P, ‘Federal Jurisdiction of the Common Market Court’ (1963) 12 AJCL 21–40. Hayes-Renshaw, F, Van Aken, W, and Wallace, H, ‘When and Why the EU Council of Ministers Votes Explicitly’ (2006) 44 J Common Market Studies 161–194. Hayes-Renshaw, F and Wallace, H, The Council of Ministers (2nd edn, Basingstoke: Palgrave Macmillan, 2006). Heliskoski, J, ‘Internal Struggle for International Presence: The Exercise of Voting Rights Within the FAO’ in Dashwood, AA and Hillion, C (eds), The General Law of E.C. External Relations (London: Sweet & Maxwell, 2000) 79–99. ——, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (The Hague, London, and New York: Kluwer Law International, 2001). Henkin, L, ‘Is There a Political Question Doctrine?’ (1976) 85 Yale LJ 597–625. ——, How Nations Behave: Law and Foreign Policy (2nd edn, New York: Columbia University Press, 1979). ——, Foreign Aff airs and the US Constitution (2nd edn, Oxford: Oxford University Press, 1996). Herrmann, CW, ‘Common Commercial Policy After Nice: Sisyphus Would Have Done a Better Job’ (2002) 39 CML Rev 7–29. ——, ‘Monetary Sovereignty over the Euro and External Relations of the Euro Area: Competences, Procedures and Practice’ (2002) 7 Eur Foreign Affairs Rev 1–24. Hilf, M, ‘The ECJ’s Opinion 1/94 on the WTO—No Surprise, but Wise?—’(1995) 6 Eur J Intl L 245–259. Hill, C, The Changing Politics of Foreign Policy (London: Palgrave, 2003). ——, ‘Renationalizing or Regrouping? EU Foreign Policy Since 11 September 2001’ (2004) 42 J of Common Market Studies 143–163. —— and Smith, M, ‘International Relations and the European Union: Themes and Issues’ in Hill, C and Smith, M (eds), International Relations and the European Union (Oxford: Oxford University Press, 2005) 3–17. Hillion, C, ‘Common Strategies and the Interface Between E.C. External Relations and the CFSP: Lessons of the Partnership Between the E.U. and Russia’ in Dashwood, AA and Hillion, C (eds), The General Law of E.C. External Relations (London: Sweet & Maxwell, 2000) 287–301. —— (ed.), EU Enlargement: A Legal Approach (Oxford and Portland, Oregon: Hart Publishing, 2004).

324

Bibliography

Hillion, C, ‘The Evolving System of EU External Relations as Evidenced in the EU Partnerships With Russia and Ukraine’, PhD Dissertation (Leiden University, 2005). —— and Wessel, RA, ‘Restraining External Competences of EU Member States under CFSP’ in Cremona, M and De Witte, B (eds), EU Foreign Relations Law: Constitutional Fundamentals (Oxford: Hart Publishing, forthcoming (2008)). Hix, S, The Political System of the European Union (2nd edn, Basingstoke: Palgrave Macmillan, 2005). Hoffmeister, F, ‘Outsider or Frontrunner? Recent Developments under International and European Law on the Status of the European Union in International Organizations and Treaty Bodies’ (2007) 44 CML Rev 41–68. Hofmann, R and Tondl, G (eds), The European Union and the WTO Doha Round (Baden– Baden: Nomos, 2007). Hohfeld, WN, Fundamental Legal Conceptions as Applied in Judicial Reasoning (New Haven: Yale University Press, 1919). Holdgaard, R, ‘The European Community’s Implied External Competence after the Open Skies Cases’ (2003) 8 Eur Foreign Affairs Rev 365–394. Holland, M, ‘Bridging the Capability-Expectations Gap: A Case Study of the CFSP Joint Action on South Africa’ (1995) 33 J of Common Market Studies 555–572. Howorth, J, ‘From Security to Defence: the Evolution of the CFSP’ in Hill, C and Smith, M (eds), International Relations and the European Union (Oxford: Oxford University Press, 2005) 179–204. Hyett, S, ‘The Duty of Co-operation: A Flexible Concept’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (London: Sweet & Maxwell, 2000) 248–253. Jackson, JH, The World Trading System: Law and Policy of International Economic Relations (2nd edn, Cambridge, MA and London: The MIT Press, 1997). Jacobs, FG, ‘Is the Court of Justice of the European Communities a Constitutional Court?’ in DM Curtin and D O’Keeffe (eds), Constitutional Adjudication in European Community and National Law: Essays for the Hon. Mr. Justice O’Higgins (Dublin: Butterworth, 1992) 25–32. ——, ‘The Evolution of the European Legal Order’ (2004) 41 CML Rev 303–316. ——, The Sovereignty of Law: the European Way (Cambridge: Cambridge University Press, 2007). James, H, Europe Reborn: A History, 1914–2000 (Harlow: Pearson, 2003). Joerges, C, EU Committees: Social Regulation, Law and Politics (Oxford: Hart Publishing, 1999). ——, and Dehousse, R (eds), Good Governance in Europe’s Integrated Market (Oxford: Oxford University Press, 2002). Johnston, A, ‘The European Union, the Ongoing Search for Terrorists’ Assets and a Satisfactory Legal Framework: Getting Warmer or Colder?’ (2007) 66 CLJ 523–525. Kaddous, C, Le droit des relations extérieures dans la jurisprudence de la Cour de justice des Communautés européennes (Basel, Geneva, Munich, and Brussels: Helbing & Lichtenhahn and Bruylant, 1998). Kant, I, ‘Perpetual Peace. A Philosophical Sketch’ in HS Reiss (ed.) Kant: Political Writings (Cambridge, Cambridge University Press: 2003) 93–130.

Bibliography

325

Kapteyn, PJG and VerLoren van Themaat, P, Introduction to the Law of the European Communities: From Maastricht to Amsterdam (3rd edn, edited and further revised by Gormley, LW, London, The Hague, and Boston: Kluwer Law International, 1998). Karagiannis, S, ‘L’expression “accord envisagé” dans l’article 228 § 6 du traité CE’ (1998) Cahiers de droit européen 105–136. Keukeleire, S, Het buitenlands beleid van de Europese Unie (Deventer: Kluwer, 1998). Kiiver, P, The National Parliaments in the European Union: A Critical View on EU Constitution-Building (The Hague: Kluwer Law International, 2006). Kintis, A, ‘NATO-WEU: An Enduring Relationship’ (1998) 3 Eur Foreign Affairs Rev 537–562. Klabbers, J, An Introduction to International Institutional Law (Cambridge: Cambridge University Press, 2002). Kokott, J and Rüth, A, ‘The European Convention and its Draft Treaty Establishing a Constitution for Europe: Appropriate Answers to the Laeken Questions?’ (2003) 40 CML Rev 1315–1345. Koopmans, T, Courts and Political Institutions: A Comparative View (Cambridge: Cambridge University Press, 2003). Koskenniemi, M, ‘Theory: Implications for the Practitioner’ in Allott, P et al, Theory and International Law: An Introduction (London: The British Institute of International and Comparative Law and International Law Group, Society of Public Teachers of Law, 1991) 3–45. ——, ‘The Place of Law in Collective Security’ (1996) 17 Michigan J Intl L 455–490. ——, ‘International Law Aspects of the Common Foreign and Security Policy’ in M Koskenniemi (ed.), International Law Aspects of the European Union (The Hague, London, and Boston: Kluwer Law International, 1998) 27–44. ——, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge: Cambridge University Press, 2002). ——, From Apology to Utopia: The Structure of International Legal Argument (2nd edn, Cambridge: Cambridge University Press, 2005). Koutrakos, P, Trade, Foreign Policy and Defence in EU Constitutional Law (Oxford: Hart Publishing, 2001). ——, EU International Relations Law (Oxford and Portland, Oregon: Hart Publishing, 2006). Krajewski, M, ‘Foreign Policy and the European Constitution’ (2003) 22 YEL 435–462. Krenzler, HG and Pitschas, C, ‘Progress or Stagnation?: The Common Commercial Policy After Nice’ (2001) 6 Eur Foreign Affairs Rev 291–313. Kuijper, PJ, ‘The Conclusion and Implementation of the Uruguay Round Results by the European Community’ (1995) 6 Eur J Intl L 222–244. Lang, MC, ‘Cour de justice, 30 mai 2006 Parlement/Conseil et Parlement/Commission’ [2006] Law & European Affairs 341–354. Lauterpacht, E, ‘The Development of the Law of International Organizations by the Decisions of International Tribunals’ in (1976) 152 Recueil des Cours 377–478. Lauterpacht, H, The Function of Law in the International Community (Oxford: Clarendon Press, 1933). ——, ‘Is International Law Part of the Law of England?’ in Lauterpacht, E (ed.), International Law. Being the Collected Papers of Hersch Lauterpacht Q.C., LL.D.,

326

Bibliography

F.B.A., Volume 2, The Law of Peace, Part I, International Law in General (Cambridge: Cambridge University Press, 1975) 537–569. Leenen, ATS, Gemeenschapsrecht en volkenrecht: een studie naar de draagwijdte van de eigen rechtsorde van de Europese Gemeenschappen (‘s-Gravenhage: TMC Asser Instituut, 1984). Lenaerts, K, Le juge et la constitution aux États–unis d’Amérique et dans l’ordre juridique européen (Brussels: Bruylant, 1988). ——, ‘Le devoir de loyauté Communautaire’ in Verhoeven, J (ed.), La Loyauté : mélanges off erts à Etienne Cerexhe (Brussels : Larcier, 1997) 229–247. ——, Arts, D, and Maselis, I, Procedural Law of the European Union (2nd edn, London: Sweet & Maxwell, 2006). ——, Binon, JM, and Van Nuffel, P, ‘L’Union européenne en quête d’une Constitution: bilan des travaux de la Convention sur l’avenir de l’Europe’ (2003) 11 Journal des tribunaux droit européen 289–299. —— and Corthaut, T, ‘Of Birds and Hedges: the Role of Primacy in Invoking Norms of EU Law’ (2006) 31 ELR 287–315. —— and De Smijter, E, ‘The United Nations and the European Union: Living Apart Together’ in Wellens, K (ed.), International Law: Theory and Practice: Essays in honour of Eric Suy (Deventer: Kluwer Law International, 1998) 439–458. —— and De Smijter, E, ‘The European Union as an Actor under International Law’ (1999–2000) 19 YEL 95–138. —— and Gerard, D, ‘The Structure of the Union According to the Constitution for Europe: The Emperor is getting Dressed’ (2004) 29 ELR 289–322. —— and Van Nuffel, P, Constitutional Law of the European Union (2nd edn, London: Sweet & Maxwell, 2005). —— and Van Ypersele, P, ‘Le principe de subsidiarité et son contexte: étude de l’article 3 B du Traité CE’ (1994) 30 Cahiers de droit européen 3–85. —— and Verhoeven, A, ‘Comitologie en scheiding der machten. Enige kanttekeningen bij het Raadsbesluit van 28 juni 1999’ [2000] Sociaal-Economische Wetgeving 394–423. Linklater, A, ‘A European Civilising Process’ in Hill, C and Smith, M (eds), International Relations and the European Union (Oxford: Oxford University Press, 2005) 367–387. Lipstein, K, The Law of the European Economic Community (London: Butterworths, 1974). Lord, C, ‘Accountable and Legitimate? The EU’s International Role’ in Hill, C and Smith, M (eds), International Relations and the European Union (Oxford: Oxford University Press, 2005) 113–133. Lykotrafiti, A, ‘European Commission v The Netherlands: a Reminder of the 2002 Open Skies Judgments in the Light of the First EU-US Air Transport Agreement’ (2007) 28 ECLR 578–583. MacCormick, N, Questioning Sovereignty: Law, State, and Practical Reason (Oxford: Oxford University Press, 1999). ——, Rhetoric and the Rule of Law: A Theory of Legal Reasoning (Oxford: Oxford University Press, 2005). MacLeod, I, Hendry, ID, and Hyett, S, The External Relations of the European Communities: A Manual of Law and Practice (Oxford: Clarendon Press, 1996). Mancini, FG, ‘The Making of a Constitution for Europe’ (1989) 26 CML Rev 595–614. Maresceau, M, ‘Bilateral agreements concluded by the European Community’ in (2004) 309 Receuil des cours 125–451.

Bibliography

327

Marks, S, The Riddle of All Constitutions: International Law, Democracy and the Critique of Ideology (Oxford: Oxford University Press, 2000). ——, ‘Empire’s Law’ (2003) 10 Indiana J of Global Legal Studies 449–466. —— and A Clapham, International Human Rights Lexicon (Oxford: Oxford University Press, 2005). McGoldrick, D, The International Relations Law of the European Union (London: Longman, 1997). Meunier, S and Nicolaïdis, K, ‘The European Union as a Trade Power’ in Hill, C and Smith, M (eds), International Relations and the European Union (Oxford: Oxford University Press, 2005) 247–269. Mommsen, T (ed.), Digesta: Digesta Seu Pandecta Justiniani Augusti (vol II, Berlin: Weidmann, 1870). Morgan, G, The Idea of a European Superstate (Princeton and Oxford: Princeton University Press, 2005). Morgenthau, H, ‘Positivism, Functionalism, and International Law’ (1940) 34 AJIL 260–284. Nagel, T, Equality and Partiality (New York and Oxford: Oxford University Press, 1991). Neurath, O, ‘Protocol Sentences’ in Ayer, AJ (ed), Logical Positivism (Glencoe, Illinois: The Free Press, 1959) 199–208. Neuwahl, N, ‘A Partner with a Troubled Personality: EU Treaty-Making in Matters of CFSP and JHA after Amsterdam’ (1998) 3 Eur Foreign Affairs Rev 177–196. Nicolaïdis, K, ‘ “We, the Peoples of Europe . . . ” ’ (2004) 83 Foreign Affairs 97–110. Nicoll, W and Salmon, TC, Understanding the European Union (Harrow: Longman, 2000). Nijman, JE, The Concept of International Legal Personality (The Hague: TMC Asser, 2004). Norman, P, The Accidental Constitution: The Story of the European Convention (Brussels: EuroComment, 2003). Nugent, N, The Government and Politics of the European Union (6th edn, Basingstoke: Palgrave Macmillan, 2006). Nuttall, S, ‘Coherence and Consistency’ in Hill, C and Smith, M (eds), International Relations and the European Union (Oxford: Oxford University Press, 2005) 91–112. Nzelibe, J, ‘The Uniqueness of Foreign Affairs’ (2004) 89 Iowa LR 941–1009. O’Keeffe, D, ‘Exclusive, Concurrent and Shared Competence’ in Dashwood, AA and Hillion, C (eds), The General Law of E.C. External Relations (London: Sweet & Maxwell, 2000) 179–199. O’Neill, O, Bounds of Justice (Cambridge: Cambridge University Press, 2000). Orakhelashvili, A, Peremptory Norms in International Law (Oxford, Oxford University Press, 2006). Peers, S, ‘Common Foreign and Security Policy 1997’ (1997) 17 YEL 539–583. ——, ‘Fragmentation or Evasion in the Community’s Development Policy? The Impact of Portugal v. Council’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (London: Sweet & Maxwell, 2000) 100–112. ——, ‘EC Framework of International Relations: Co-operation, Partnership and Association’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (London: Sweet & Maxwell, 2000) 160–176. ——, ‘Common Foreign and Security Policy’ (2001) 20 YEL 531–567.

328

Bibliography

Pernice, I, ‘Multilevel Constitutionalism in the European Union’ (2002) 27 ELR 511–529. —— and Thym, D, ‘A New Institutional Balance for European Foreign Policy?’ (2002) 7 Eur Foreign Affairs Rev 369–400. Pescatore, P, ‘Aspects judiciaires de l’ “acquis communautaire” ’ (1981) 17 Revue trimestrielle de droit européen 617–651. Peters, A, ‘European Democracy After the 2003 Convention’ (2004) 41 CML Rev 37–85. Piana, C, ‘The EU’s Decision-Making Process in the Common Foreign and Security Policy: The Case of the Former Yugoslav Republic of Macedonia’ (2002) 7 Eur Foreign Affairs Rev 209–226. Piris, JC, The Constitution for Europe: A Legal Analysis (Cambridge:Cambridge University Press, 2006). Prechal, S, ‘Does Direct Effect Still Matter?’ (2000) 37 CML Rev 1047–1069. Rasmussen, H, On Law and Policy in the European Court of Justice: A Comparative Study in Judicial Policymaking (Dordrecht, Boston, and Lancaster: Martinus Nijhoff Publishers, 1986). Rawls, J, A Theory of Justice (revised edn, Cambridge, MA: Belknap Press of Harvard University Press, 1999). Raz, J, ‘The Rule of Law and Its Virtue’ (1977) 93 LQR 195–211. Rees, W, ‘The External Face of Internal Security’ in Hill, C and Smith, M (eds), International Relations and the European Union (Oxford: Oxford University Press, 2005) 205–224. Rosas, A, ‘Mixed Union—Mixed Agreements’ in Koskenniemi, M (ed.), International Law Aspects of the European Union (The Hague, London, and Boston: Kluwer Law International, 1998) 125–148. ——, ‘The European Union and Mixed Agreements’ in Dashwood, AA and Hillion, C (eds), The General Law of E.C. External Relations (London: Sweet & Maxwell, 2000) 200–220. Ross, M, ‘Effectiveness in the European Legal Order(s): Beyond Supremacy to Constitutional Proportionality’ (2006) 31 ELR 476–498. Sack, J, ‘The European Community’s Membership of International Organizations’ (1995) 32 CML Rev 1227–1256. Sarooshi, D, International Organizations and Their Exercise of Sovereign Powers (Oxford: Oxford University Press, 2005). Scannell, DL, ‘Legal Aspects of the European Union’s European Security and Defence Policy’, PhD Dissertation (Cambridge, 2005). Schermers, HG and Blokker, NM, International Institutional Law: Unity Within Diversity (4th revised edn, Boston and Leiden: Martinus Nijhoff Publishers, 2003). Schiemann, K, ‘Europe and the Loss of Sovereignty’ (2007) 56 ICLQ 475–490. Schimmelfennig, F, The EU, NATO and the Integration of Europe: Rules and Rhetoric (Cambridge: Cambridge University Press, 2003). Schmitt, C, The Concept of the Political (Chicago, Illinois and London: The University of Chicago Press, 2007). Schoenbaum, TJ, International Relations. The Path Not Taken: Using International Law to Promote World Peace and Security (Cambridge: Cambridge University Press, 2006). Sen, AK, Identity and Violence: The Illusion of Destiny (London: Allen Lane, 2006). Shaw, M, International Law (5th edn, Cambridge: Cambridge University Press, 2003). Sinclair, I, The Vienna Convention on the Law of Treaties (2nd edn, Manchester: Manchester University Press, 1984).

Bibliography

329

Smith, K, ‘The EU, Human Rights and Relations with Third Countries: “Foreign Policy” with an Ethical Dimension’ in Smith, K and Light, M (eds), Ethics and Foreign Policy (Cambridge: Cambridge University Press, 2001) 185–203. ——, ‘Enlargement and European Order’ in Hill, C and Smith, M (eds), International Relations and the European Union (Oxford: Oxford University Press, 2005) 270–291. Smith, M, Europe’s Foreign and Security Policy: The Institutionalization of Cooperation (Cambridge: Cambridge University Press, 2004). ——, ‘Implementation: Making the EU’s International Relations Work’ in Hill, C and Smith, M (eds), International Relations and the European Union (Oxford: Oxford University Press, 2005) 154–175. Spaventa, E, ‘Opening Pandora’s Box: Some Reflections on the Constitutional Effects of the Decision in Pupino’ (2007) 3 Eur Constitutional L Rev 5–24. Spencer, C, ‘The EU and Common Strategies: The Revealing Case of the Mediterranean’ (2001) 6 Eur Foreign Affairs Rev 31–51. Spiermann, O, ‘The Other Side of the Story: An Unpopular Essay on the Making of the European Community Legal Order’ (1999) 10 Eur J Intl L 763–789. ——, International Legal Argument in the Permanent Court of International Justice (Cambridge: Cambridge University Press, 2005). Steinberger, E, ‘The WTO Treaty as a Mixed Agreement: Problems With the EC’s and the EC Member States’ Membership of the WTO’ (2006) 17 Eur J Intl L 837–862. Stürchler, N, The Threat of Force in International Law (Cambridge: Cambridge University Press, 2007). Tamanaha, BZ, On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge University Press, 2004). Tams, CJ, ‘German Constitutional Court Bows To Europe’ (2001) 60 CLJ 256–259. Tan, KC, Justice Without Borders: Cosmopolitanism, Nationalism and Patriotism (Cambridge: Cambridge University Press, 2004). Terrell, EE, ‘Foreign Relations and Federal Questions: Resolving the Judicial Split on Federal Court Jurisdiction’ (2002) 35 Vanderbilt J of Transnational L 1637–1678. Thym, D, ‘Reforming Europe’s Common Foreign and Security Policy’ (2004) 10 Eur LJ 5–22. ——, Ungleichzeitigkeit und europäisches Verfassungsrecht (Baden-Baden: Nomos Verlagsgesellschaft, 2004). Tietje, C, ‘The Concept of Coherence in the Treaty on European Union and the Common Foreign and Security Policy’ (1997) 2 Eur Foreign Affairs Rev 211–233. Timmermans, CWA, ‘Division of External Powers Between Community and Member States in the Field of Harmonization of National Law—A Case Study’ in Bleckmann, A, Barav, A, Bourgeois, JHJ, and Timmermans, CWA (eds), Division of Powers Between the European Communities and Their Member States in the Field of External Relations (Deventer: Kluwer, 1981) 15–26. ——, ‘La libre circulation des marchandises et la politique commerciale commune’ in Demaret, P (ed.), Relations extérieures de la Communauté européenne et marché intérieur: aspects juridiques et fonctionnels (Brussels: Story–Scientia, 1988) 91–108. ——, ‘Communication au Colloque de l’Université Libre de Bruxelles’, L’Union européenne après Maastricht (Bruxelles, 1992). ——, ‘The Uneasy Relationship Between the Communities and the Second Union Pillar: Back to the “Plan Fouchet”?’ (1996) Legal Issues of Eur Integration 61–70.

330

Bibliography

Timmermans, CWA, ‘Organising Joint Participation of EC and Member States’ in Dashwood, AA and Hillion, C (eds), The General Law of E.C. External Relations (London: Sweet & Maxwell, 2000) 239–247. ——, ‘The Constitutionalization of the European Union’ (2002) 21 YEL 1–11. Tizzano, A, ‘The Foreign Relations Law of the EU between Supranationality and Intergovernmental Model’ in Cannizzaro, E (ed.), The European Union as an Actor in International Relations (The Hague, London, and New York: Kluwer Law International, 2002) 135–147. Tomuschat, C, ‘Liability for Mixed Agreements’ in O’Keeffe, D and Schermers, HG (eds), Mixed Agreements (Deventer, Antwerp, Boston, London, Frankfurt: Kluwer Law and Taxation Publishers, 1983) 125–132. ——, ‘Artikel 228 [Abkommen der Gemeinschaft]’ in Von der Groeben, H, Thiesing, J, and Ehlermann, CD (eds), Kommentar zum EWG–Vertrag (Baden–Baden: Nomos Verlagsgesellschaft, 1997) 5474–5520. ——, ‘The International Responsibility of the European Union’ in Cannizzaro, E (ed.), The European Union as an Actor in International Relations (The Hague, London, and New York: Kluwer Law International, 2002) 177–191. ——, ‘Case T–306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council and Commission, judgment of the Court of First Instance of 21 September 2005; Case T–315/01, Yassin Abdullah Kadi v. Council and Commission, judgment of the Court of First Instance of 21 September 2005, nyr’ (2006) 43 CML Rev 537–551. Torrent, R, ‘The “Fourth Pillar” of the European Union After the Amsterdam Treaty’ in Dashwood, AA and Hillion, C (eds), The General Law of E.C. External Relations (London: Sweet & Maxwell, 2000) 221–235. Tridimas, T, ‘The European Court of Justice and the Draft Constitution: A Supreme Court for the Union?’ in Tridimas, T and Nebbia, P (eds), European Union Law for the Twenty-First Century: Rethinking the New Legal Order. Vol. 1: Constitutional and Public Law. External Relations (Oxford: Hart Publishing, 2004) 111–141. ——, The General Principles of EU Law (2nd end, Oxford: Oxford University Press, 2006). —— and Eeckhout, P, ‘The External Competences of the Community and the Case-Law of the Court of Justice: Principle versus Pragmatism’ (1994) 14 YEL 143–177. Trüe, C, ‘Verleihung von Rechtspersönlichkeit and die Europäische Union und Verschmelzung zu einer einzigen Organisation— —deklaratorisch oder konstitutiv?’, Nr. 357 der Vorträge, Reden und Berichte aus dem Europa–Institut (Universität des Saarlandes, 1997, available at ). Trybus, M, European Union Law and Defence Integration (Oxford and Portland, Oregon: Hart Publishing, 2005). Tsoukalis, L, ‘Managing Interdependence: The EU in the World Economy’ in Hill, C and Smith, M (eds), International Relations and the European Union (Oxford: Oxford University Press, 2005) 225–246. Tuytschaever, F, Diff erentiation in European Union Law (Oxford and Portland, Oregon: Hart Publishing, 1999). Van den Bossche, P, ‘The European Community and the Uruguay Round Agreements’ in Jackson, JH and Sykes, AO (eds), Implementing the Uruguay Round (Oxford: Clarendon Press, 1997) 23–102.

Bibliography

331

——, The Law and Policy of the World Trade Organization: Text, Cases and Materials (Cambridge: Cambridge University Press, 2005). Van Gerven, W, The European Union: A Polity of States and Peoples (Oxford and Portland, Oregon: Hart Publishing, 2005). Vanhamme, J, Volkenrechtelijke beginselen in het Europees recht (Groningen: Europa Law Publishing, 2001). Vanhoonacker, S, ‘The Institutional Framework’ in Hill, C and Smith, M (eds), International Relations and the European Union (Oxford: Oxford University Press, 2005) 67–90. Verhaeghe, P, Over normaliteit en andere afwijkingen: Handboek klinische psychodiagnostiek (Leuven and Voorburg: Acco, 2005). Verhoeven, A, The European Union in Search of a Democratic and Constitutional Theory (The Hague, London, and New York: Kluwer Law International, 2002). Verwey, D, The European Community, the European Union and the International Law of Treaties (The Hague: T.M.C. Asser Press, 2004). Viola, DM, European Foreign Policy and the European Parliament in the 1990s: An investigation into the role and voting behaviour of the European Parliament’s political groups (Aldershot: Ashgate, 2000). Völker, ELM and Steenbergen, J, Leading Cases and Materials on the External Relations Law of the E.C. (Deventer, Antwerp, Boston, London, and New York: Kluwer Law and Taxation Publishers, 1985). Von Bogdandy, A, ‘The Legal Case for Unity: the European Union as a Single Organization with a Single Legal System’ (1999) 36 CML Rev 887–910. —— and Bast, J, ‘The European Union’s Vertical Order of Competences: The Current Law and Proposals for its Reform’ (2002) 39 CML Rev 227–268. Wæver, O, ‘European Security Identities’ (1996) 34 J of Common Market Studies 103–132. Waldron, J ‘Is the Rule of Law an Essentially Contested Concept (In Florida)?’ (2002) 21 L and Philosophy 137–164. Walker, N (ed.), Sovereignty in Transition (Oxford and Portland, Oregon: Hart Publishing, 2003). Wallace, H, ‘An Institutional Anatomy and Five Policy Modes’ in Wallace, H, Wallace, W, and Pollack, MA (eds), Policy-Making in the European Union (5th edn, Oxford: Oxford University Press, 2005) 49–90. Wallace, W, ‘Foreign and Security Policy. The Painful Path from Shadow to Substance’ in Wallace, H, Wallace, W, and Pollack, MA (eds), Policy-Making in the European Union (5th edn, Oxford: Oxford University Press, 2005) 429–456. Ward, A, ‘Community Development Aid and the Evolution of the Interinstitutional Law of the European Union’ in AA Dashwood and C Hillion (eds), The General Law of E.C. External Relations (London: Sweet & Maxwell, 2000) 42–47. Weiler, JHH, ‘Neither Unity nor Three Pillars—The Trinity Structure of the Treaty on European Union’ in Monar, J, Ungerer, W, and Wessels, W (eds), The Maastricht Treaty on European Union: Legal Complexity and Political Dynamic (Brussels: European Interuniversity Press, 1993) 49–62. ——, The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ and Other Essays on European Integration (Cambridge: Cambridge University Press, 1999). —— and Wind, M, European Constitutionalism Beyond the State (Cambridge: Cambridge University Press, 2003).

332

Bibliography

Wessel, RA, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (The Hague, Boston, and London: Kluwer Law International, 1999). Wessel, RA, ‘The Inside Looking Out: Consistency and Delimitation in EU External Relations’ (2000) 37 CML Rev 1135–1171. ——, ‘Good Governance and EU Foreign, Security and Defence Policy’ in DM Curtin and RA Wessel (eds), Good Governance and the European Union: Reflections on Concepts, Institutions and Substance (Antwerp and Oxford: Intersentia, 2005) 215–251. ——, ‘The Multilevel Constitution of European Foreign Relations’ in N Tsagourias (ed.), Transnational Constitutionalism: International and European Perspectives (Cambridge: Cambridge University Press, 2007) 160–206. ——, ‘The Constitutional Unity of the European Union: The Increasing Irrelevance of the Pillar Structure?’ in Wouters, J and Kiiver, P (eds), European Constitutionalism beyond the EU Constitution (forthcoming (2008)). Wessels, W, ‘A “Saut constitutionnel” out of an Intergovernmental Trap? The Provisions of the Constitutional Treaty for the Common Foreign, Security and Defence Policy’ (Jean Monnet Working Paper 5/04, 2004). Williams, A, EU Human Rights Policies: A Study in Irony (Oxford: Oxford University Press, 2005). Williams, B, Truth and Truthfulness: An Essay in Genealogy (Princeton: Princeton University Press, 2002). Woolcock, S and Hodges, M, ‘EU Policy in the Uruguay Round’ in Wallace, H and Wallace, W (eds), Policy-Making in the European Union (Oxford: Oxford University Press, 1996) 301–324. Wyatt, D, ‘New Legal Order, or Old?’ (1982) 7 ELR 147–166. Zilioli, C and Selmayr, M, ‘The External Relations of the Euro Area: Legal Aspects’ (1999) 36 CML Rev 273–349. Zimmermann, R, The Law of Obligations: Roman Foundations of the Civilian Tradition (Oxford: Clarendon Press, 1996). Zyczkowski, K and Slomczynski, W, ‘Voting in the European Union: The square root system of Penrose and a critical point’ (Cracow: Jagielonian University, 2004, ).

Index accountability democratic accountability 3, 92, 97, 98, 118, 160, 165, 166 foreign policy 227 High Representative of the Union for Foreign Affairs and Security Policy (HRUFASP) 216, 217 national parliaments 168 bibliography 316–32 comitology Community institutions 92 Community method 92 Committee of Permanent Representatives (COREPER) decision-making 131–3 division of tasks 133 membership 131 power struggles 128, 132, 133 role 76, 128, 131–3 Common Commercial Policy (CCP) decision-making 97 EC Treaty provisions 39–42, 60 exclusive competence 68, 69 exclusivity principle 39 external competences 12 see also external competences implementation 192 trade with third countries 12 Common Fisheries Policy (CFP) EC Treaty provisions, 39, 40, 42 exclusive competence 68 Common Foreign and Security Policy (CFSP) attribution of competences 101, 102, 105–7, 157, 308 autonomous action CFSP objectives 113 Commission’s role 128–9 Council’s role 129–38 legal instruments 112, 113 common interests 106 common objectives 123 common positions 118–19 common strategies 113–15 see also common strategies communitarization 3, 201, 210, 309 conferral see conferral (CFSP) coordinated response 123 Council

common positions 134, 136 common strategies 136 decision-making 129, 130, 134, 137, 138 General Secretariat 129 General Secretary 130 joint actions 134, 136 legal instruments 134, 135 procedural issues 135, 136 qualified majority voting (QMV) 135–7 rules of procedure (RPC) 133, 136 Treaty of Lisbon 136 unanimity rule 134, 135, 137, 138 decision-making autonomous measures 128–38, 157, 308 Commission’s role 157 Committee of Permanent Representatives (COREPER) 128, 131, 132 Community method, comparison with 112, 125 consultation 137 Council’s role 125–30, 134, 137, 138, 157, 308 international agreements 138–46 legal instruments 112 policy decisions 130 Policy Planning and Early Warning Unit 130, 131 Political and Security Committee (PSC) 128 qualified majority voting (QMV) 137, 138 treaty-making procedure 308 definition 101 democratic accountability 160 European Court of Justice (ECJ) case-law 205, 206, 207 jurisdiction 308, 311 European Security and Defence Policy (ESDP) see European Security and Defence Policy (ESDP) development, of 298 direct effect doctrine 201, 203, 204 executive measures 124 external identity 102 external relations 101, 102, 105, 107, 108, 157, 201 foreign policy issues 107, 108, 275 geographical proximity 107 hierarchical approach 298

334

Index

Common Foreign and Security Policy (cont.) High Representative for the Common Foreign and Security Policy (HRCFSP) 130, 131 horizontal question 107 implementation 101, 157, 158, 160, 309 see also implementation (CFSP acts) implied competences 105–106, 157 intergovernmental cooperation 205 international agreements 138–46 see also international agreements joint actions 107, 115–18 see also joint actions judicial control 3, 160, 180–3, 188, 189, 194–8 see also judicial control (ECJ) legal analysis 204 legal instruments common positions 118–19 common strategies 113–15 decision-making 112 decisions 120–3 enforceability 122 EU Constitution 122 executive measures 124 joint actions 115 –18 legislative action 123 legislative character 157 simplification 123 sui generis instruments 119 Treaty of Lisbon 122 Treaty on the Functioning of the European Union (TFEU) 122 legal techniques 2 new legal order 201, 204, 309 see also new legal order objectives 102, 103, 105, 106, 107, 108, 113, 157, 308 political/economic stability 107 primacy principle 201, 202, 204 procedural avenues 123 proposed changes communitarization 210 constitutional framework 209 Constitution, under 209, 210, 211, 213 direct effect doctrine 211, 212, 213 EU pillar structure 209, 210, 212 EU Treaty 209 European Neighbourhood Policy (ENP) 210 legal order 209–13 primary principle 211, 212, 213 procedural harmonization 209 Treaty of Lisbon 210, 212 Treaty on the functioning of the European Union (TFEU) 209 rule of law 160 see also rule of law

scope 103, 106, 107, 108 security threats 107 shared competence 111 subsidiarity principle 107 sui generis instruments decision-making process 119 decisions 120, 121 declarations 120, 121 European Security and Defence Policy (ESDP) 120, 121 international law 121 legal effects 120 Presidency Conclusions 120, 121 Presidency Reports 120, 121 sui generis nature 3 Treaty of Lisbon 108–12, 201 vertical question 106, 107 common positions adoption, of 90 agreement, on 90 autonomous action 118–19 Chemical Weapons Convention 119 Common Foreign and Security Policy (CFSP) 134, 136 criticisms 124 decisions having legal effect 90, 91 defence, of 90 duty to cooperate 208 foreign policy 270 geographic/thematic nature 118 horizontal consistency 272 see also horizontal consistency implementation 120 international organizations 118 joint actions, distinguished 118 judicial control 184–6, 198, 208 see also judicial control (ECJ) loyal cooperation 261 see also loyal cooperation national policies 118 open government 170 Treaty of Lisbon 118 Common Security and Defence Policy (CSDP) conflict prevention 109 counterterrorism 109 defence policy 108, 109 European Parliament 192 humanitarian tasks 109 international security 109 military advice 109 peace keeping 109 post-conflict stabilization 109 common strategies adoption, of 114, 115 autonomous action 113–15 benefits 115

Index Common Foreign and Security Policy (CFSP) 136 Council powers 114 criticisms 114, 115 cross-pillar 114 horizontal consistency 272, 273 see also horizontal consistency implementation 113, 120 important common interests 113 information requirements 114 introduction 113, 115 open government 170 purpose 115 qualified majority voting (QMV) 115 communitarization Common Foreign and Security Policy (CFSP) 3, 201, 210, 309 European integration 226 foreign policy 275, 309 Community competences attainment of specific objectives 52, 54, 56 Commission’s interpretation 27 development cooperation 58 division Community/Member States 10 horizontal 9 vertical 9 economic/financial/technical cooperation 58 EC Treaty provisions exclusive competence 58 exclusive external competence 58, 59 harmonizing powers 58 internal competence 58 environmental protection 58 EU pillars 2 see also EU pillars exclusive external competence 58, 59, 67–70 exclusivity principle 39–42 see also exclusivity extension 9, 18 external competences see external competences external relations 10, 67 see also external relations fisheries conservation 33 freedom of establishment 53 freedom to provide services 27, 53 horizontal axis 2 see also managing the horizontal axis implied competences doctrine 10, 11 EC Treaty provisions 11 external relations 12, 13 internal competences 11, 13 scope 11 social policy 11 internal legislative goals 54

335

international agreements 18, 19, 51–5 see also international agreements international competence 52 monetary policy 33 non-exclusivity see non-exclusivity optimal use 26, 28 right of establishment 27 shared/concurrent competences 39, 67, 70–71 see also shared competences transport policy 27 Treaty on the Functioning of the European Union (TFEU) 68, 69 Treaty of Lisbon 67–71 vertical axis 2, 3 see also managing the vertical axis Community method autonomous measures Commission’s role 96 Common Foreign and Security Policy (CFSP) 73 Community legal instruments 73 decision-making stage 75–7 European Parliament 96 external measures 96 initiative stage 74–5 internal measures 96 legal instruments 96 Commission’s role 96, 226 Common Foreign and Security Policy (CFSP) adaptation of method 222, 226 method contrasted 223, 224 constitutional structure 220, 222, 225 Council role 75–7 procedure 75 working groups 76 decision-making Permanent Representatives Committee (COREPER) 76 Commission’s role 73, 75, 76 Common Commercial Policy (CCP) 97 consensus 77 Council’s role 75–7 democratic accountability 97 European Court of Justice (ECJ) 73 European Parliament 73, 75, 97 external relations 73, 74 implementation 76 intergovernmental method 222, 225 judicial accountability 73 legal instruments 73 Member States, effect on 76 qualified majority voting (QMV) 73, 75, 76, 77 sui generis instruments 74 unwanted decisions 76

336

Index

Community method (cont.) European Court of Justice (ECJ) collaborative procedure 93 ECHR compatibility 94 economic sanctions 95 EC Treaty interpretation 93, 94, 98 external relations 93, 95, 96, 98 implied external competences 95, 96 Opinions on agreements 93–5 preliminary rulings procedure 93–5, 98, 180, 185–8, 189, 206, 212, 213 request for Opinion 93 role 73 rules of procedure (RPCJEC) 94 external relations 93, 95, 96, 98 foreign policy instruments diplomatic instruments 73 economic-financial instruments 73 legal instruments 73 military instruments 73 soft instruments 73 sui generis nature 74, 97 foreign policy-making see foreign policy-making foreign policy measures 73, 75 implementation see implementation stage internal policies 96 international agreements see international agreements international crises 226 international developments 225 law-making procedure attribution of competence 98 co-decision procedure 98 cooperation procedure 98 cross-referencing practice 98 internal/external competences 98 policies by dissociation 221 policy-making 225 supranational 222, 225 Community minimum standards autonomous action 66 ECJ jurisprudence 66 exclusive competence 66 harmonized policy areas 65 international agreements 66, 67 Member State response 65, 66 shared competence 66 complementarity principle Community objectives, attainment of 25, 26, 28, 29 conferred internal competences 23 eff et utile principle 24, 25, 29 exclusivity 26–9 see also exclusivity external competence 23 external complements to internal competences 25

indispensability 28 international commitments 23, 25 necessity criterion 26, 28 origins 24 parallelism 23, 26 pre-existing internal measures 24, 25 conferral (CFSP) see also Common Foreign and Security Policy (CFSP) EU competences attribution 101, 102, 105, 106 CFSP objectives 102, 103, 105, 106 division of competences 102 external relations 102 grant, of 102 implied competences doctrine 105, 106 EU Treaty CFSP objectives 102, 103, 105 division of competences 102 external relations 102 grant of competence 101 specifically conferred objectives 299 Treaty of Lisbon classification of competences 109, 111 common defence 109, 110 defence policy 108, 109 foreign policy 108, 111 conferral principle Common Foreign and Security Policy (CFSP) see conferral (CFSP) Community competences 9 see also Community competences EC Treaty provisions 9, 11, 18 external competences see external competences external relations 10, 18 implied competences doctrine 10, 11, 18–20 implied external competences 31, 32 see also implied external competences conflict resolution exclusivity principle see exclusivity external relations exclusive competence 38 international agreements 38 loyalty strictures 38 non-exclusive competences 38 parallel competences 39 shared/concurrent competences 39 internal matters direct effect doctrine 34–7 primacy principle 36, 37 vertical conflict resolution exclusivity principle 33, 34 external competence 38 loyalty principle 33, 38 primacy principle 33, 36 vertical competence conflicts 33 consistency

Index coherence, distinguished 251 consistency principle foreign policy 3 vertical aspect 3 duty of consistent interpretation 207, 208, 260 external relations 301 see also external relations foreign policy 298 horizontal consistency Common Foreign and Security Policy (CFSP) 269, 270 common positions 270, 272 common strategies 272, 273 Community external action 269 Council/Commission cooperation 273 division of competences 269 ECJ case law 268 ECJ role 273 economic sanctions regime 271 EU identity 268 EU institutions, difference between 273, 274 EU pillars 267–9, 271, 272 EU Treaty provisions 267, 268 external relations 272, 273 external relations competences 269, 271 High Representative of the Union for Foreign Affairs and Security Policy 273, 274 joint actions 268, 270, 271 Kimberley process (conflict diamonds) 271, 272 problems, with 267 single institutional framework 273, 274 vertical consistency coherence, distinguished 251 concepts of law 251 consistent policies 250 decision-making 250 need, for 49, 250, 251 subsidiarity principle 251, 252 constitutional particularities (summary) Common Foreign and Security Policy (CFSP) 308 Community method 307 conferral principle 307 consistency principle 310 constitutional structure 307 democratic accountability 309 exclusivity 307 external relations 307 implied competences doctrine 307 internal policies 307 international agreements 307, 308 loyalty principle 307 mixity 310

337

primacy principle 307 rule of law 309 significance, of 311 Constitutional Treaty see Treaty establishing a Constitution for Europe (TC) counterterrorism Common Security and Defence Policy (CSDP) 109 counterterrorism measures 276, 277, 278, 280, 281 EU security 280 European Security and Defence Policy (ESDP) 105 export bans 276 financing of terrorism 278 foreign policy 220 freezing of assets 276, 278 judicial control 184 see also judicial control (ECJ) national survival 1 targeted sanctions 277, 278, 282 UN Security Council Resolutions 276, 278, 282 Court of Justice of the European Communities see European Court of Justice (ECJ) democracy citizen participation 159 decision-making process 159 democratic accountability 3, 92, 97, 98, 118, 160, 165, 166 fundamental rights 159 open government 169 rule of law 159 see also rule of law development cooperation Community competences 58 see also Community competences development cooperation agreements 237 exclusive competence 68 external competences 13, 15 mixed agreements 237 see also mixed agreements policy 295, 296 shared competence 70, 71, 110 Treaty of Lisbon 112 direct effect doctrine Common Foreign and Security Policy (CFSP) 201, 203, 204, 211, 212, 213 conditions, for 34 constitutionalization 37 ECJ case-law 36 international law criteria,34 introduction, of 34, 35 judicial activism 36, 37 judicial deference 34 judicial intervention 34

338

Index

direct effect doctrine (cont.) separation of powers 34 transfer of sovereignty 37, 38 Draft Treaty establishing a Constitution for Europe (DTC) exclusive competence 70 judicial control 190 see also judicial control (ECJ) EU Foreign Minister concept 213 Constitution, under 214 External Relations Commissioner 215, 217, 219 External Relations Council 219 Foreign Affairs Council 214, 218 High Representative for the Common Foreign and Security Policy (HRCFSP) 213 Treaty of Lisbon 214 Union Minister for Foreign Affairs (UMFA) 214–17 EU Member States Community minimum standards 65, 66 constitutional relationship 1 division of competences 10 see also Community competences European Security and Defence Policy (ESDP) 103, 104 foreign policy issues 1, 116, 192, 275 see also foreign policy independent/autonomous action 70, 71, 79, 116 joint actions 116 see also joint actions loyal cooperation 260, 261 see also loyal cooperation military capacity 152 national identities 252 national security 252 obligations 103, 104, 116, 124, 260, 261 sovereignty 202 state functions 252 subsidiarity principle 251, 252 see also subsidiarity principle territorial integrity 252 EU Military Committee (EUMC) composition 151 establishment, of 151 function 152 recommendations 152 EU pillars abolition, of 209, 210 Common Foreign and Security Policy (CFSP) 2 see also Common Foreign and Security Policy (CFSP) conflict, between 298–301 cross-pillar mixity

Community measures 295 development cooperation policy 295, 296 distribution of competences 295 international agreements 297 joint actions 296 meaning 294 mixed agreements 296, 297 Partnership and Cooperation Agreements 297 procedural incompatibility 295, 296 procedural requirements 295 Schengen acquis 297 Treaty of Lisbon 297, 298 economic, social and environmental policies 2 foreign policy 274 hierarchical conception 298 horizontal consistency 267–9, 271, 272 see also horizontal consistency judicial control see judicial control (ECJ) Police and Judicial Cooperation in Criminal Matters (PJCCM) 4 see also Police and Judicial Cooperation in Criminal Matters (PJCCM) relationship, between 177, 179, 182, 183, 185–7, 199, 200, 298–301 structure, 209, 210, 212 European Convention on Human Rights (ECHR) accession, to 30, 31, 94, 141 compatibility, with 94 European Court of Justice (ECJ) jurisdiction 196, 197 protection, under 251 European Council autonomous action 126 common strategies 125 consensus rule 136 decision-making competences 126 role 125–8 enhanced role 125, 126 EU Treaty 125, 126 foreign policy 127 full-time President 127 High Representative of the Union for Foreign Affairs and Security Policy 127, 128, 136, 137, 138, 143, 147, 148 Presidency Conclusions 125, 126 procedural rules 126 St Malo Declaration 126 transparency 126 Treaty of Lisbon 127, 128 European Court of Justice (ECJ) collaborative procedure 93

Index Common Foreign and Security Policy (CFSP) jurisdiction 308 case law 205, 206, 207 division of competences 96 ECHR compatibility 94 economic sanctions 95 EC Treaty agreements compatible, with 93, 94, 98 interpretation 93 Treaty amendment 93 external relations 93, 95, 96, 98 fundamental rights, 183–5, 188 horizontal consistency 268, 273 see also horizontal consistency human rights protection 182, 184, 188, 189 implied external competences 95, 96 indirect judicial review 181 international agreements 96 judicial activism 197, 199 judicial control see judicial control (ECJ) judicial scrutiny 194, 199 judicial supervision 193 jurisdiction 178, 179, 181, 189, 193, 196, 197, 199, 200, 203, 226 locus standi requirements 189 Opinions on agreements 93–5 preliminary rulings procedure 93–5, 98, 180, 185–8, 189, 206, 212, 213 request for Opinion 93 role 73 rules of procedure (RPCJEC) 94 European Defence Agency (EDA) establishment, of 117, 152, 153 role 152 status 153 Treaty of Lisbon 153 European Defence Community (EDC) failure, of 220 European External Action Service (EEAS) function 148, 215 European integration basis, of 220, 221 communitarization 226 economics through politics 221 European Political Cooperation (EPC) 221 political dimension 221, 222 security through economics 221 European Neighbourhood Policy (ENP) Common Foreign and Security Policy (CFSP) 210 Community ideals 16 Treaty of Lisbon 16 Treaty on the Functioning of the European Union (TFEU) 16 European Parliament

339

Commission, relationship with, 82 Common Foreign and Security Policy (CFSP) Common Security and Defence Policy (CSDP) 192 consultation procedure 192 High Representative of the Union for Foreign Affairs and Security Policy 192 Treaty of Lisbon 192 decision-making 97 external relations 75 foreign policy budgetary control 162, 163, 192 Common Foreign and Security Policy (CFSP) 166, 192 Commission, relationship with 163 consultation provisions 161, 162 Council, relationship with 161, 162 democratic accountability 165, 166 emergency situations 164, 165, 191 EU Treaty provisions 161 foreign policy-making 97, 161 Framework Agreement 163 High Representative for the Common Foreign and Security Policy 164 High Representative of the Union for Foreign Affairs and Security Policy 192 human rights protection 166 Inter-institutional Agreement 162, 163 lack of competence 165, 166 powers 161, 162 rules of procedure (RPEP) 164 role 73, 75, 307 rules of procedure (RPEP) 81–3, 86, 88 European Political Cooperation (EPC) economic aspects of security 106 European integration 221 European Security and Defence Policy (ESDP) attribution of competences 106 civilian command structure 154, 155 civilian missions 153–5 Council’s role 156 counterterrorism 105 EU Monitoring Mission (EUMM) 156 EU Special Representative 155 EU Treaty provisions 101, 103–5 European Defence Agency 152, 153 European Union Satellite Centre 151 High Representative for the Common Foreign and Security Policy (HRCFSP) 155, 156 High Representative of the Union for Foreign Affairs and Security Policy (HRUFASP) 156

340

Index

European Security and Defence Policy (cont.) Institute for Security Studies 151 joint actions 118 Member State military capacity 152 obligations 103, 104 Political and Security Committee (PSC) 151–53 sui generis instruments 120 Treaty of Lisbon 156 Western European Union 104, 105, 109, 150, 151, 152 European Union common principles democracy 251 fundamental freedoms 251 human rights protection 251 liberty 251 rule of law 251 competences see Community competences component political entities 1 constitutional structure 2, 3 see also constitutional particularities (summary) enlargement policy 4 foreign policy see foreign policy identity 268 legal organization of foreign policy 2 legal personality 143–6, 202 Member States see EU Member States unique nature 1 exclusivity a priori exclusivity 39, 40, 71 area, concept of 50, 51 autonomous action 72 common Community interests 40, 41 common Community rules 43–5, 48, 50, 53, 71 Community competences 39–42 see also Community competences concurrent powers 41 conferral principle 49 see also conferral principle conflict rule 71 consistency, need for, 49 disconnection clause 51 EC Treaty provisions Common Commercial Policy (CCP) 39–42, 60 Common Fisheries Policy (CFP) 39, 40, 42 effects autonomous action, prohibition on 59, 60, 72 derogations 60, 61 ECJ jurisdiction 61 loyal cooperation 59

Member States, on 59, 60 temporary authorization, 60, 61 third country obligations 59 transitional possibilities 60 ERTA-principle common Community interests 41 common Community policy 43, 44 common Community rules 43–5 complete legislative harmonization 45, 46, 48 conflicting international provisions 46–8 conflict resolution mechanism 43 exclusive competence 45–9 explicit external competences 43, 60 implicit external competences 43, 52, 54, 57 international agreements 43–7 international commitments 46, 47 partial legislative harmonization 45–7 sectoral approach 64 subordinate legislative acts 46 exclusive external competence 47, 48, 52, 53, 54, 56, 58, 72 external trade policies 41 implied external competences 22, 26–9 see also implied external competences international agreements 43–7, 49, 51–5, 57, 50, 71, 72 international liability 71 loyalty principle 34, 59, 71 see also loyalty principle partial legislative harmonization/ coverage 50 policy areas air transport policy 56, 57, 60 attainment of specific objectives 52, 56 external aspects 52 fisheries policy 53 internal aspects 52 OECD national treatment provisions 54 trade agreements 52, 53 transport agreements 53–5 pre-existing internal provisions 56, 57 recognition and enforcement of judgments 49, 50 significance 33, 34 uniformity, need for 49 vertical conflict resolution 33, 34 external competences see also Community competences appropriate measures 29 asylum 32 Community objectives, attainment of 29–31 conferral principle 31 see also conferral principle ECJ case law 13, 15, 30

Index EC Treaty interpretation 15 provisions 11–15, 29–32 trade with third countries 12 European Convention on Human Rights (ECHR) accession 30, 31 explicit attribution Common Commercial Policy (CCP) 12 development cooperation 13, 15 ECJ case law 13, 15 economic/financial/technical cooperation 14, 15 EC Treaty provisions 11–15 external action 13 external relations competence 12–15 implied external competences 13 intellectual property (commercial aspects) 14 international agreements 13 international cooperation 12 policy competence 12 relations with international organizations 12 sectoral approach 11 trade in services 14 trade with third countries 12 treaty amendment 13, 14 external complements to internal competences 13–15, 23, 25 humanitarian aid 15 immigration 32 international environmental agreements 30 legal bases 29, 30 limits 31 proportionality 31 subsidiarity principle 31 trade with third countries Common Commercial Policy (CCP) 12 customs union 12 EC Treaty provisions 12 Treaty of Lisbon 15–16 Treaty on the Functioning of the European Union (TFEU) 15, 16 external relations Common Foreign and Security Policy (CFSP) 101, 102, 105, 107, 108, 157, 201 Community competences 2, 3, 10 see also Community competences conferral principle 10, 18 see also conferral principle conflict resolution exclusive competence 38 international agreements 38 loyalty strictures 38 non-exclusive competences 38 parallel competences 39

341 shared/concurrent competences 39 consistency 301 constitutional framework 20 EU competences 102 EU Treaty provisions 102 European Court of Justice (ECJ) 93, 95, 96, 98 external competences see external competences External Relations Commissioner 215, 217, 219 External Relations Council 219 horizontal consistency 272, 273 see also horizontal consistency implied competences 12, 13 legitimacy 166 loyal cooperation 254, 255, 266 see also loyal cooperation mixed agreements 264 see also mixed agreements Treaty of Lisbon, 67

federal structures competences, within 38 Foreign Affairs Council creation 136 High Representative of the Union for Foreign Affairs and Security Policy (HRUFASP) 136 foreign policy accountability 227 Common Foreign and Security Policy (CFSP) 275 common positions 270 communitarization 275, 309 Community competences 275 Community legal instruments 187 consistency 3, 298 see also consistency constitutional particularities 3, 307–11 see also constitutional particularities constitutional principles 2 constitutional structure 220, 222 counterterrorism 220 delegation 191 democratic accountability 3, 160, 165, 166 diplomatic activity 219, 309 economic policy 3 economic sanctions 274, 275 enlargement policy 4 equality 314 EU Foreign Minister concept 213 Constitution, under 214 External Relations Commissioner 215, 217, 219 External Relations Council 219 Foreign Affairs Council 214, 218

342

Index

foreign policy (cont.) High Representative for the Common Foreign and Security Policy (HRCFSP) 213 Treaty of Lisbon 214 Union Minister for Foreign Affairs (UMFA) 214–17 EU pillars 274 European Parliament 161–6, 191 external economic relations 219, 309 external trade policy 275 fundamental freedoms 313, 314 hierarchical approach 299 High Representative for the Common Foreign and Security Policy (HRCFSP) 213 human dignity 314 human rights issues 313, 314 identity issues 313, 314 international trade relations 219, 220 judicial control 3, 193, 196, 197, 200 see also judicial control (ECJ) judicial review 176, 177, 183, 184, 185, 198 lack of development 312 lack of political will 312 legal dimension internal level 1 international level 1 legal organization 2 sui generis nature, 3 legitimacy 166, 191, 314 loyal cooperation 260, 261 see also loyal cooperation mixity 3 see also mixity Member States foreign policy competences 275, 313 scrutiny 192 multi-level system 312 national parliaments accountability 168 constitutional law 168 consultation documents 167 democratic scrutiny 167–9 formal influence 168, 169 indirect influence 169 reliance, on 168, 169 role, of 167, 168 open government access to documents 171–5 annual policy debate 169, 170 common positions 170 common strategies 170 democracy 169, 314 disclosure of information 171, 172 EU Treaty provisions 169 joint actions 170 judicial remedy 175

judicial review 174 legislative proposals 170 Official Journal publication 170, 171 public interest considerations 171–4 statement of reasons 175, 176 transparency 170 policy-making see foreign policy-making political aspects 221, 222, 314 national survival 1 rule of law 227, 313, 314, 315 see also rule of law security and defence issues 219 solidarity 314 sui generis nature 123 Treaty of Lisbon 311 foreign policy-making democratic accountability 97, 98 EC Treaty provisions 98 European Parliament 97 external impact 98 external relations competence 97, 98 internal procedures 97 sui generis nature 97 General Affairs and External Relations Council creation 136 meetings 136 High Representative for the Common Foreign and Security Policy (HRCFSP) role, of 130, 131, 146–49, 155, 156, 213, 218, 219 High Representative of the Union for Foreign Affairs and Security Policy (HRUFASP) accountability 216, 217 appointment 214 consultation provisions 192 European External Action Service (EEAS) 215 Foreign Affairs Council 136, 214, 218 recommendations 127, 147 resignation 217 responsibilities 127, 128, 136, 137, 138, 143, 148, 156, 214 role, of 201, 214, 215, 217, 218, 219, 226, 273, 274, 309 term of office 216 horizontal axis see also managing the horizontal axis delimitation of competences 198 external relations competences 2 horizontal consistency Common Foreign and Security Policy (CFSP) 269, 270

Index common positions 270, 272 common strategies 272, 273 Community external action 269 Council/Commission cooperation 273 division of competences 269 ECJ case law 268 ECJ role 273 economic sanctions regime 271 EU identity 268 EU institutions, difference between 273, 274 EU pillars 267–9, 271, 272 EU Treaty provisions 267, 268 external relations 272, 273 external relations competences 269, 271 High Representative of the Union for Foreign Affairs and Security Policy 273, 274 joint actions 268, 270, 271 Kimberley process (conflict diamonds) 271, 272 problems, with 267 single institutional framework 273, 274 humanitarian aid exclusive competence 68 external competences 15 shared competence 70, 71, 110 Treaty of Lisbon 15, 112 implementation (CFSP acts) Commission’s role 146, 149, 157, 309 common positions 149 common strategies 146 cooperation programmes 146, 147 Council’s role 150, 156, 158 EU Military Committee (EUMC) 151, 152 EU Treaty provisions 146 European Court of Justice 149, 157, 160 European External Action Service (EEAS) 148 European Parliament 149, 158, 309 European Presidency 146–8 European Security and Defence Policy (ESDP) 150–3 High Representative for the Common Foreign and Security Policy (HRCFSP) 146, 147, 149, 155 High Representative of the Union for Foreign Affairs and Security Policy (HRCFASP) 148 Institute for Security Studies 151 joint actions 149 Member States involvement 147, 148, 149 Political and Security Committee (PSC) 151–3 responsibility 146 supervision 149, 150, 157

343

implementation stage comitology procedures 92 Community institutions Commission’s role 92 Council’s role 92 delegated rulemaking 92 democratic accountability 92 development cooperation 92 implementing powers 92 internal/external policies 92 decentralized method 91 EC Treaty provisions 91 external relations 91, 92 local knowledge 91 Member State’s role 91, 92 subsidiarity principle 91 see also subsidiarity principle implied competences EC Treaty provisions 11 effectiveness principle 17 external competences see implied external competences external relations 12, 13 internal competences 11, 13 scope 11 social policy 11 implied external competences capacity/competence conferral principle 18–20 existence, of 20, 26 international agreements 18, 19 limits 19 nature, of 20 necessity criterion 26 specific competences 21 Community objectives, attainment of 25, 26, 28, 29 complimentarity see complimentarity principle corresponding internal competences 29 ECJ case law 13, 17–21, 23–6, 31, 32, 95, 96 effectiveness principle 17 ERTA-competence common Community rules 21–23 eff et utile principle 24, 25 external complements to internal competences 23 international agreements 22 loyalty principle 22 Member State competence 22 primacy principle 22 prior internal legislation 22–4 third country obligations 22 exclusivity 26–9 see also exclusivity express competences 18 external complements to internal competences 23, 25

344

Index

implied external competences (cont.) facilitation 26, 28 importance, 31 indispensability 28 internal harmonization competences 27 internal legislative competence 26, 27 internal provisions 28 international agreements 27 see also international agreements necessity criterion 28 open provisions 28 parallelism 23, 26 treaty-making powers 26 international agreements association agreements 81, 87, 90 autonomous Member State action 79 Commission’s role 77–81, 97, 157, 307, 308 Common Foreign and Security Policy (CFSP) approval 139 authorization 138 capacity 143–6 Commission’s role 138, 143 Council’s role 138, 139, 140, 141 ECHR accession 141 EU legal personality 143–6 EU Treaty provisions 138–40 European Parliament 141, 142 European Presidency 138, 139 High Representative of the Union for Foreign Affairs and Security Policy (HRUFASP) 138, 143 judicial review 140 Member State action 139, 140 mixed agreements 140, 233, 234, 237 national constitutional procedures 139 Police and Judicial Cooperation in Criminal Matters (PJCCM) 138 procedural framework 138 publication requirements 140 qualified majority voting (QMV) 139, 141 Treaty of Lisbon 140–3 Treaty on the Functioning of the European Union (TFEU) 142, 143 unified procedure 140–3 Community competences 18, 19, 51–5 see also Community competences conclusion of treaties co-decision procedure 84–8 Commission’s powers 84 Common Commercial Policy (related agreements) 85, 86 consultation requirements 85–8 Council’s powers 84, 85, 87, 88 EC Treaty provisions 84, 85, 87–9 EMU-related agreements 88 European Parliament 85–8, 191, 192

intellectual property (commercial aspects) 84 judicial review 89 legal instrument 88, 89 loyalty principle 89 procedure 84–8 publication requirements, 89 qualified majority voting (QMV) 84 regulation, by 88, 89 sui generis decision 88, 89 trade in services 84 Treaty on the Functioning of the European Union (TFEU) 190 unified treaty-making procedure 190 urgent international action 88 Westerterp procedure 86 Council’s role 78–81, 157, 307 decision-making bodies binding decisions 90, 91 common positions 90, 91 consensus 90 decisions having legal effect 90, 91 establishment, of 90 ECJ case law 78, 96 EC Treaty infringement 79 provisions 77, 78, 80 environmental agreements 30 European Parliament 77, 78, 97 European Presidency 157 external relations requirements 77 foreign policy-making 97 implementation 308 implied external competences 27 see also implied external competences judicial review 96 mixed agreements 140, 233, 234, 237 see also mixed agreements negotiation anti-dumping measures 83 Commission’s role 79–82 Common Agricultural Policy (CAP) 83 Common Commercial Policy (CCP) 79 compatibility requirements 80 conclusion of negotiations 82 conduct of negotiations 82 consensus 81 consultation requirements 80 Council’s role 79–81 EC treaty provisions 83 educational services 81 EMU-related negotiations 83, 98 European Parliament 81, 82 exclusive external competences 83 intellectual property (commercial aspects) 81 negotiating directives 80, 82

Index negotiation mandate 81 non-exclusive external competences 83 procedure 79, 80, 83 qualified majority voting (QMV) 80, 81 social/human health services 81 special committees 80 trade agreements 81, 83 trade in cultural/audiovisual services 81 trade in services 81 procedural issues 78, 307 signature Commission’s role 83 consent 83 Council’s role 83 entry into force 84 European Parliament 83 qualified majority voting (QMV) 83 suspension/termination 89–90 third country involvement 77 treaty-making procedure 157 WTO negotiations 78 international law incorporation 36 inter-state law 34 legal character 2 sovereign rights 34 international organizations Community membership 247–50 Community Member State membership 249 Council of Europe 247 dispute settlement 248 Food and Agriculture Organization (FAO) 248, 249 GATT membership 247 powers of decision 246 sovereignty issues 249 third country cooperation 246 United Nations 247, 248 voting rights 247 WTO membership 247 international trade trade relations 219, 220 trade with third countries Common Commercial Policy (CCP) 12 customs union 12 EC Treaty provisions 12 TRIPS Agreement 241, 242 World Trade Organization (WTO) 78, 241, 242, 247 joint actions basis, of 116 Common Foreign and Security Policy (CFSP) 107, 134, 136 definition 115 democratic accountability 118

345

EU Treaty 117 external action 117 implementation 116, 120 information requirements 115 judicial control 178, 179 see also judicial control (ECJ) legislative character 117 Member States foreign policies 116 implementation 116 independent action 116 obligations 116, 124 objectives 116 open government 170 principles 116 rule of law 118 see also rule of law scope 117 judicial control (ECJ) see also European Court of Justice (ECJ) access to documents 180 actions by individuals 189 annulment procedure 179, 191 armed conflict 195, 196 Common Foreign and Security Policy 3, 160, 180–3, 188, 189, 194–7 common positions 184–6, 198, 208 constitutional traditions 184 counterterrorism measures 184 Court of First Instance (CFI) 180–4, 198 delimitation of competences 198 Draft Treaty establishing a Constitution for Europe (DTC) 190 dual-use goods 198, 199 duty of consistent interpretation 207, 208 economic measures 189 economic sanctions 198, 199 enforcement jurisdiction 200 EU pillars 177–9, 182–7, 199, 200, 207, 211, 212 European Court of Human Rights (ECtHR) jurisdiction 196, 197 external relations 193 foreign policy matters 193, 196, 197, 198, 200 Framework decisions 206, 207, 209 fundamental freedoms 182 fundamental rights 183–5, 188 human rights protection 182, 184, 188, 189 international security 196 joint actions 178, 179 judicial activism 197, 199 judicial scrutiny 194, 199 judicial supervision 193 jurisdiction issues 178, 179, 181, 189, 193, 196, 197, 199, 200, 203, 226 locus standi requirements 189 margin of discretion 197

346

Index

judicial control (cont.) political questions 195, 196 preliminary rulings 180, 185–8, 190, 200, 212, 213 restrictive measures 189, 190, 212 rule of law 176, 177, 183, 184, 185 scope 177, 178, 190 trade-related issues 198 transparency rules 180 treaty-making procedure 190 Treaty of Lisbon provisions 189, 190, 191, 212 Treaty on the Functioning of the European Union (TFEU) 190 validity of regulations 187 Kadi/Yusuf Cases application for annulment 276 Common Foreign and Security Policy (CFSP) objectives 280, 281, 283 common positions, challenge to 276, 278, 281–3 counterterrorism measures 276, 277, 278, 280, 281 Court of First Instance (CFI) decision 278–82 economic/financial sanctions 278, 281 EU security 280 EU Treaty objectives 279 export ban 276 external relations objectives 280 financing of terrorism 278 flight ban 276 freezing of assets 276, 278 joint actions 281–3 restrictive measures 277 targeted sanctions 277, 278, 282 UN Security Council Resolutions 276, 278, 282 law-making procedure, internal attribution of competence98 co-decision procedure 98 cooperation procedure 98 cross-referencing practice 98 internal/external competences 98 legal system hierarchical approach 298 Lisbon Treaty see Treaty of Lisbon loyal cooperation autonomous measures 254 common positions 261 Community solidarity 253 decision-making 259 diplomatic activities 261, 262 duty of consistent interpretation 260 duty of cooperation 253–8, 260

ECJ case-law 253, 254, 256, 257 EC Treaty provisions 252, 253, 256, 257 EU legal order 259 EU Treaty provisions 259, 260, 261 exclusivity principle 59 see also exclusivity external relations 254, 255, 266 external/security policy 259 foreign policy issues 260, 261 importance, of 264, 266 information/consultation principle 260 inter-institutional dialogue 254, 255 international agreements 254 judicial review 259 Member States Common Foreign and Security Policy (CFSP) 260, 261 conflicting interests 260 international organizations 261 obligations 260, 261 mixed agreements 255, 256, 258 see also mixed agreements political solidarity 259 procedural requirements 256 systematic cooperation 260 Treaty of Lisbon 262–4, 266 see also Treaty of Lisbon loyalty principle see also loyal cooperation effect, of 33, 252, 253 exclusivity principle 34, 71 see also exclusivity external matters 33 implied external competence 22 internal matters 33 international agreements 89 primacy principle 71 see also primacy principle vertical conflict resolution 33, 38 managing the horizontal axis accountability 303 common positions 303 Community/CFSP relationship 298–302 ECJ jurisdiction 300 economic sanctions regime 303 EU competences 299 EU pillars 298–301 external economic policy 267 external relations consistency 301 foreign policy decisions 267, 274, 275 horizontal consistency Common Foreign and Security Policy (CFSP) 269, 270 common positions 270, 272 common strategies 272, 273 Community external action 269 Council/Commission cooperation 273 division of competences 269

Index ECJ case law 268 ECJ role 273 economic sanctions regime 271 efficiency 303 EU identity 268 EU institutions, difference between 273, 274 EU pillars 267–9, 271, 272 EU Treaty provisions 267, 268 external relations 272, 273 external relations competences 269, 271 High Representative of the Union for Foreign Affairs and Security Policy 273, 274 joint actions 268, 270, 271 Kimberley process (conflict diamonds) 271, 272 problems, with 267 single institutional framework 273, 274 joint actions 268, 270, 271, 303 see also joint actions judicial scrutiny 300 Partnership and Cooperation Agreements 297, 300, 301 transparency 303 Treaty on the Functioning of the European Union (TFEU) 299 managing the vertical axis consistency principle 231 division of competences 231 enhanced cooperation 231 loyal cooperation see loyal cooperation mixity 231 see also mixity vertical consistency coherence, distinguished 251 consistent policies 250 decision-making 250 legal concepts 251 subsidiarity principle 251, 252 mixed agreements association agreements 235, 236 capacity/competence 233–7, 243–5 Community aspects 240 conclusion, of 265 cross-pillar mixity 296, 297 definition 232 development cooperation agreements 237 ECJ case law 232–4, 237, 241–3 entry into force 240 exclusive competence 69, 70 external relations 264 human rights clauses 303 implementation 241 international agreements 233, 234, 237, 265 see also international agreements international representation 264 international responsibility

347

joint liability 244 jurisdictional issues 244 MERCOSUR 236 negotiation 238–9 obligation of close cooperation 243, 244 partially mixed agreements 245, 246 political dialogue 237 quasi cross-pillar cases 236 ratification 240 signature 239–41 status 242, 243 TRIPS Agreement 241, 242 WTO Agreement 241, 242 mixity advantages 265 Community Member State action 232 constitutional dimension 232 cross-pillar mixity Community measures 295 development cooperation policy 295, 296 distribution of competences 295 international agreements 297 joint actions 296 meaning 294 mixed agreements 296, 297 Partnership and Cooperation Agreements 297 procedural incompatibility 295, 296 procedural requirements 295 Schengen acquis 297 Treaty of Lisbon 297, 298 federal foreign policy 265 international organizations Community membership 247–50 Community Member State membership 249 Council of Europe 247 dispute settlement 248 Food and Agriculture Organization (FAO) 248, 249 GATT membership 247 powers of decision of the organs of international organizations 246 sovereignty issues 249 third country cooperation 246 United Nations 247, 248 voting rights 247 WTO membership 247 legal framework 232 mixed agreements see mixed agreements mixed external action 232, 234 partial mixity 240 national parliaments accountability 168 constitutional law 168

348 national parliaments (cont.) consultation documents 167 democratic scrutiny 167–9 formal influence 168, 169 indirect influence 169 reliance, on 168, 169 role, of 167, 168 new legal order Common Foreign and Security Policy (CFSP) 201, 204, 309 community of law 205 direct effect doctrine 201, 203, 203 see also direct effect doctrine EC Treaty provisions 201 EU Treaty provisions 201 framework decisions 206, 207, 209 national compliance 202, 206, 207, 208 national laws 202, 206, 208 primacy principle 201, 203, 203 see also primacy principle non-exclusivity co-existing competence copyright protection 67 international agreements 67 Vienna Convention 67 Community minimum standards 65, 66, 67 see also Community minimum standards development aid 61, 63 development cooperation 62, 63 division of competences 63 ECJ case-law 61 EC Treaty provisions, flowing from 62–5 external competence 61, 63, 65 humanitarian aid 63 international agreements 63 parallel competence 62, 63 pending exercise of Community competence 62 shared competence 61, 63, 65 open government access to documents 171–5 annual policy debate 169, 170 common positions 170 common strategies 170 democracy 169 disclosure of information 171, 172 EU Treaty provisions 169 joint actions 170 see also joint actions judicial remedy 175 judicial review 174 legislative proposals 170 Official Journal publication 170, 171 public interest considerations 171–74 statement of reasons 175, 176 transparency 170

Index Permanent Representatives Committee (COREPER) see Committee of Permanent Representatives (COREPER) Police and Judicial Cooperation in Criminal Matters (PJCCM) European Court of Justice (ECJ) jurisdiction 208, 209 external aspects 4 international agreements 138 Member State obligations 207 Political and Security Committee (PSC) autonomous role 153 crisis management 152, 153, 156, 157 decision-making competence 156 role 128, 131, 132 delegation of discretionary powers 153 division of tasks 133 function 132 membership 132 political control 153, 155 power struggles 132, 133 reports, from 155 strategic direction 153, 155 supervision, by 151, 152, 155 primacy principle Common Foreign and Security Policy (CFSP) 201, 202, 204, 211, 212, 213 conflicting national law 37, 38 conflict rule 71 constitutionalization 37 effect 71 implied external competence 22 incompatibility with Community law 37, 38, 71 judicial activism 36, 37 loyalty principle 71 see also loyalty principle origins 36 transfer of sovereignty 37, 38 vertical conflict resolution 33, 36 Vienna Convention 36 proportionality principle external competences 31 see also external competences qualified majority voting (QMV) Common Foreign and Security Policy (CFSP) 135–8, 311 common strategies 115 Community method 73, 75, 76, 77 definition 137 general rule 81 international agreements 80, 81, 83, 84, 139, 141 versions, of 137

Index rule of law foreign policy matters 193, 194, 227 German courts 193, 194 independent judiciary 176 judicial control 176, 177, 183–5 see also judicial control (ECJ) judicial review 176, 177, 183, 184, 185, 194 UK Courts 193, 194 US Supreme Court 193 shared competences Common Foreign and Security Policy (CFSP) 111 development cooperation 70, 71, 110, 290 external policies 70 external relations 39 humanitarian aid 70, 71, 110, 290 independent Member State action 70, 71 pre-emption concept 110, 111 residual category 111 Treaty on the Functioning of the European Union (TFEU) 111, 290 Treaty of Lisbon 67, 70–71, 290 Small Arms and Light Weapons Case Common Foreign and Security Policy (CFSP) 285, 286, 288, 291, 292 Community competences 289, 291, 292 conflict prevention 284 Cotonou Agreement 284 Council’s competence 293, 294 cross-pillar mixity 293, 294 see also mixity declaration of illegality 283 development aid 290 development cooperation policy 284, 286–90, 293 ECJ decision 285–8, 293 EC Treaty powers 289 EU pillars 289, 291, 292, 294 human rights issues 286 international security 288 joint actions 283, 287, 289 lack of competence 283 proliferation of small arms 283, 284, 286, 287, 288 security policy 292 subsidiarity principle Common Foreign and Security Policy (CFSP) 107 implementation stage 91 external competences 31 see also external competences vertical consistency 251, 252 see also vertical consistency

349

Treaty establishing a Constitution for Europe (TC) Common Foreign and Security Policy (CFSP) competences 110, 112 shared competences 110 status 4 Treaty of Lisbon categories of competence classification 109, 111 exclusive competence 67–70 external relations 67 shared competence 67, 70–71, 290 common approach 264 common defence 109, 110 Common Foreign and Security Policy (CFSP) 136, 201, 210, 212, 262, 263, 254 common positions 118 cross-pillar mixity 297, 298 defence policy 108, 109 ECHR accession 141 economic/financial sanctions 275 economic/financial/technical cooperation 141 EU Foreign Minister 214 European Council 127, 128 European Parliament 192 European Security and Defence Policy (ESDP) 156 external competences 15–16 see also external competences foreign policy 108, 111, 311 humanitarian aid 15 information/consultation principle 262, 263, 264 judicial control 189, 190, 191, 212 see also judicial control (ECJ) legal effects 5 mutual political solidarity 262, 264, 266 shared competences 67, 70–71, 290 sincere cooperation 262 social/education/health services 141 sovereignty issues 263 Treaty on the Functioning of the European Union (TFEU) Common Foreign and Security Policy (CFSP) 209 EU competences common defence policy 110 economic/employment policies 110 exclusive competences 112 general categories 110 non-exclusive competences 112 shared competences 111 exclusive competences attainment of Community objectives 69 Common Commercial Policy (CCP) 68, 69 Common Fisheries Policy (CFP) 68

350

Index

Treaty on the Functioning of the European Union (cont.) common rules 68, 69 competition rules 68 customs union 68 development cooperation 68 European Neighbourhood Policy (ENP) 16 foreign policy aspects 68 humanitarian aid 15, 16, 68 international relations 16 legislative acts, derived from 68 mixed agreements 69, 70 necessary for internal competence 68, 69 trade powers 69 exclusive external competences 70 fisheries conservation 33 international agreements 68, 89–91, 142, 143, 190 see also international agreements judicial control 190 see also judicial control (ECJ) legal value 299 marine biological resources 68 monetary policy 33, 68 publication requirements 89 shared competences development cooperation 70, 71, 290 external policies 70 humanitarian aid 70, 71, 290 independent Member State action 70, 71 trade policy 69 United Nations counterterrorism 276, 278, 282 mixity 247, 248 organisation 247, 248 Security Council Resolutions 276, 278, 282 vertical axis see also managing the vertical axis delimitation of competences 198 external relations competences 2, 3

vertical conflict resolution exclusivity principle 33, 34 external competence 38 loyalty principle 33, 38 primacy principle 33, 36 vertical competence conflicts 33 vertical consistency coherence, distinguished 251 consistent policies 250 decision-making 250 legal concepts 251 subsidiarity principle 251, 252 Western European Union (WEU) integration 151, 152 military tasks 104 Petersberg Declaration 104 Petersberg tasks 104, 105, 109, 150 WEU states 104 Yusuf/Kadi Cases application for annulment 276 Common Foreign and Security Policy (CFSP) objectives 280, 281, 283 common positions, challenge to 276, 278, 281–3 counterterrorism measures 276, 277, 278, 280, 281 Court of First Instance (CFI) decision 278–82 economic/financial sanctions 278, 281 EU security 280 EU Treaty objectives 279 export ban 276 external relations objectives 280 financing of terrorism 278 flight ban 276 freezing of assets 276, 278 joint actions 281–3 restrictive measures 277 targeted sanctions 277, 278, 282 UN Security Council Resolutions 276, 278, 282