Abstract
Keywords
With the increasing importance of EU external relations within the broader framework of EU policies and strategies, it is no wonder that there has also been a considerable increase in legal research and publications relating to external relations law. 1 This is a welcome development, not only for the sake of understanding the legal and politico-legal aspects of EU external relations as such but also because any meaningful study of the Union constitutional order should include the external relations dimension. 2
In fact, EU external relations law offers one of the best ways of understanding the essential features of the Union legal order in general. On the one hand, the treaty-making and other powers of the Union go well beyond anything that intergovernmental organizations such as the United Nations and its Specialized Agencies, the World Trade Organization (WTO) or the Council of Europe, are bestowed with. On the other hand, federal states such as Brazil, Russia or the United States are not encumbered with a variety of actors such as are involved in the external activities of the EU. First of all, the 27 Member States have their own foreign policy, albeit sometimes coordinated by the Union. Second, when the Union acts, there may be several bodies, notably the European Council with its President, the Council, the High Representative for Foreign Affairs and Security Policy with the External Action Service (EEAS) and the Commission, which each have, at least to some extent, their own profile in external relations. Such comparisons between the Union and intergovernmental organizations on the one hand and federal states on the other help to situate the EU somewhere in between these institutional categories.
One subject which seems especially promising for research aimed at increasing the understanding of the status and role of the EU as an international actor is the phenomenon of mixed agreements. 3 This term refers to international agreements to which both the Union and some or all of its Member States are parties. Mixed bilateral and multilateral agreements are often of a nature and substance (such as trade, environment, transport, and so on) which would make it unthinkable that they might be concluded by intergovernmental organizations. At the same time, while some federal constitutions do provide for a limited possibility for sub-federal units to conclude international agreements, 4 this is long way from the practice of the EU and its Member States to conclude mixed agreements of great economic or societal importance.
When looking at the pertinent legal rules, such as Articles 3(5) and 21–46 of the Treaty on European Union (TEU) and Articles 3 and 205–222 of the Treaty on the Functioning of the European Union (TFEU), taking into account also the interpretation of some of these rules by the Union courts, 5 one will be tempted to situate the EU closer to federal states than to intergovernmental organizations. I am thinking, for instance, of the existence of a Union exclusive competence, both the ‘a priori’ exclusive competence listed in Article 3(1) TFEU, including the most important form of such competence, the common commercial policy elaborated in Article 207 TFEU, and the ‘implied’ or ‘supervening’ exclusive competence provided for in Article 3(2) TFEU, including the so-called AETR/ERTA-based exclusive competence in particular. 6 As to the area of shared competence, even where there is no EU secondary law rendering the competence exclusive, in accordance with the AETR/ERTA principle, the duty of cooperation as formulated by the ECJ and based upon the principle of sincere cooperation recognised in Article 4(3) TEU may legally reduce Member States’ margin for manoeuvre. 7 The broad scope of the treaty-making powers of the Union as formulated in Articles 216 and 217 TFEU also comes to mind.
As to the Common Foreign and Security Policy (CFSP), regulated in Chapter 2 of Title V TEU (Articles 23–46), one is struck by some far-reaching formulations emphasizing the central role of the Union and the obligations of Member States to coordinate their actions and to uphold the Union’s positions. It is, for instance, stated in Article 21(2)(a) TEU that one of the external action objectives of the Union is to ‘safeguard its values, fundamental interests, security, independence and integrity’. 8 And Articles 28, 29 and 30 seem to place rather far-reaching obligations on Member States to consult, coordinate and cooperate and to respect common positions and approaches.
The political aspirations are even bolder. In her Mission Statement to Josep Borrell, the High Representative for Foreign Affairs and Security Policy, the Commission President Ursula von der Leyen observed that ‘the need for European leadership in the world is more pronounced than ever before’. 9 The new Commission should be a ‘Geopolitical Commission’ and the Union ‘needs to be more strategic, more assertive and more united in its approach to international relations’. Yet in reality the ambitions to be a global player are hardly matched by what is going on in the real world. The people responsible for conducting the Union’s external relations are well aware of the problem. For instance, in his speech at the European Parliament on 15 January 2020, the High Representative Mr Borrell stressed the need to be more assertive ‘in protecting our vital interests’ and observed that ‘[w]e live in a world of power politics’, thus requiring ‘a truly integrated foreign policy that combines the power of Member States with the coordinated mobilization of all European Union instruments’ and a strengthening of the links between internal and external policies. 10 This, he continued, has been said many times and should be repeated, but ‘[i]t would be much better to implement it’.
This, of course, is a diplomatic understatement. There is, in fact, a glaring discrepancy between aspirations and stated objectives, on the one hand, and real power and influence, on the other hand. While it may be a bit thick to refer to the Emperor’s clothes, it does not seem out of place to say that the EU’s performance on the international scene sometimes appears as a gaggle of geese. 11 Suffice to mention in this context that the Union even seems incapable of solving acute and bloody conflicts in its neighbourhood, such as Syria, Palestine, Libya and Ukraine, and that this is at least partly due to the fact that some Member States conduct their own foreign policy, which may be at variance with the stance both of other Member States and of the Union. This state of affairs has induced a well-known newspaper to conclude that ‘Europe is punching well below its weight’ and that while this is not a new problem, ‘it is getting worse. As the US, China and Russia and their imitators play destructive global power games, the EU can only watch and fret’. 12
This incapacity is not the result of a lack of ambition or of intellectual capacity among Union leaders but stems from a number of institutional realities – and at the end of the day, from an unwillingness of Member States to accept the Union as the principal actor and spokesman in international affairs (as such a role for the Union would restrict or even eliminate their capacity to conduct their own foreign policy). Without attempting to list all institutional and other factors which may contribute to the inability of the Union to play a more robust and convincing role, it is evident that important factors are to be found in the specificities of the CFSP. These specificities include the general rule of unanimity in the European Council and the Council, the leading role of these two institutions (which consist of Member States’ representatives, which can hardly be expected to effectively control each other) and the corresponding limited role of the European Parliament and the Commission and the lack, as a general rule, of the jurisdiction of the ECJ (the lack of judicial control has the consequence that some of the CFSP rules may in reality appear to be pious aspirations rather than legally binding rules). 13
And when it is possible to arrive at a common action or position, with the lack of effective military and other capabilities and decision-making structures which would enable the Union to place ‘boots on the ground’, 14 the EU actions will often remain of a declaratory nature only. It is repeated ad nauseam that a conflict can only be solved by political means, even when it is obvious that the room for diplomacy will depend on military means or at least on effective sanctions. It is true that EU sanctions policies may provide some help, but the use of sanctions remains somewhat haphazard and restrained by the requirement of unanimity, and some sanctions are of limited, if any, practical relevance. 15
It should also be recalled that there has been a tendency in the Council to create a spill-over effect for the CFSP on non-CFSP parts of EU external relations with a view to imposing unanimity and/or mixity upon trade and other areas of exclusive Union competence and/or majority voting rather than unanimity. One device to achieve mixity has been to insert clauses on ‘political dialogue’ in an agreement which should otherwise have been concluded as a Union-only agreement. 16 The ECJ’s judgment in Case C-244/17 Commission v. Council relating to positions to be adopted on the basis of an agreement with Kazakhstan should legally curtail such practices, as the Court ruled that the provisions of the agreement ‘displaying a link with the CFSP’ were ‘incidental to that agreement’s two component constituted by the common commercial policy and development cooperation’ and that the Council was wrong to include a CFSP legal basis (Article 31(1) TEU) in the contested decision and so the decision ‘was wrongly adopted under the voting rule requiring unanimity’. 17
Whether this and other ECJ judgments in the field of external relations will deter Member States from insisting on ‘mixity at all costs’ and other solutions maximizing their margin of manoeuvre and enabling a veto power for each Member State is open to doubt. Normally those Member States that present observations to the Court in cases relating to external relations will defend interpretations implying shared competence (and in areas of shared competence, freedom to act), mixed agreements and unanimity rather than exclusive competence, duty of cooperation, Union-only agreements and majority voting. 18 The inevitable consequence is, first of all, that the EU is often embroiled in internal turf wars and inactivity because of a lack of unanimity rather than engaging in effective external action and, second, that when some external movement can be achieved, third powers will not be particularly impressed by the plurality of actors and mixed messages emanating from the EU side.
It may be countered that the above description of the Union’s impotence is too dark, especially as it does not pay sufficient attention to the Union’s trade policy, often branded as a success story. It is indeed true that thanks to the common commercial policy and the Union’s exclusive competence in this area, the picture is much less gloomy than, say, with respect to the CFSP. However, it should be recalled that the efforts of Member States to defend mixity even in this area have led to a situation where most bilateral trade and cooperation agreements have been concluded, on the EU side, by the Union and its Member States together. The result has been considerable difficulties in achieving the signature and/or entry into force of some of these agreements, not to speak of difficulties which may later arise as to questions of application, implementation and responsibility. 19 The recent problems relating to the signature and/or entry into force of the agreements with Ukraine and Canada are cases in point. 20 The consequence is that the credibility of the EU as a negotiator of, and party to, international trade agreements, has suffered – perhaps not a fatal blow, but suffered all the same.
The above observations, it has to be acknowledged, are rather sweeping assertions and to some extent assumptions, which would benefit from more systematic studies of institutional practice and real outcomes. My purpose has not been to advocate this or that institutional, procedural or policy solution but simply to underline the discrepancies which exist between lofty aspirations and objectives, legal rules and actual practice. It is my firm belief that the situation would merit further legal research focused on the role of EU external relations law as confronted with the ‘real world’. This is not to say that those of us who consider ourselves experts in the field have been completely detached from reality. Existing research and publications do pay at least some attention to the weaknesses in the system and some also to the hollowness of the often-repeated adage that the Union should ‘speak with one voice’. 21 That said, it would be useful to conduct more systematic research both on actual practice in the Council and other Union bodies and on realities on the ground, including in third countries. This could involve research on general topics making systematic use of relevant data as well as case studies concerning more specific topics or particular conflicts or conflict areas. Cooperation with political science/international relations/European studies approaches would be beneficial.
What follows is a short list of topics, by way of examples, which would seem to merit further elucidation:
The systematic study, for a given period of time, of situations where, despite the existence of a Union CFSP action or position, individual Member States have gone their own ways and to what extent this has created a discrepancy between Union rules and decisions and Member State behaviour; would it, in this context, also be possible to map situations where a CFSP decision, in view of Article 31 TEU, could or should have been taken by qualified majority but was in reality adopted by unanimity?
The security and defence component of EU law and policies would merit more legal and institutional research; 22 for instance, how to describe the relations between rules on capabilities, including the competence of the European Defence Agency, the Permanent Structured Cooperation and the European Defence Fund, the civilian and military assets referred to in Article 42 TEU and the civilian and military tasks listed in Article 43, including tasks of combat forces and the ‘battle groups’ (which have not been used in practice) and the obligation of aid and assistance in the case of armed aggression against a Member States as formulated in Article 42(7) TEU.
The systematic study, for a given period of time, of international agreements which, in view of relevant Treaty provisions and ECJ case law, should probably have been concluded as Union-only agreements but have in reality been concluded as mixed agreements, as well as of situations in which the Union bodies should have represented the EU internationally but this has been done by Member States or has not been done at all.
A particular question in this context is: Which are the international organizations which deal with matters belonging to the area of Union exclusive competence and which do not count the EU among their members? Has the dictum of the ECJ in Kramer, according to which Member States are ‘under a duty to use all the political and legal means at their disposal’ to ensure the participation of the Union in a convention establishing an body which deals with matters which belong to the area of Union exclusive competence (in that case, the North-East Atlantic Fisheries Convention establishing a Fisheries Commission), 23 become obsolete?
Even if there is, in principle, a recognition of a Union exclusive competence, how often are Member States, by virtue of Article 2(1) TFEU, explicitly or implicitly authorized (‘empowered’, according to the said provision) to act in the interest of the Union 24 and what are the legal limits to such authorizations? Do such authorizations imply a new category of ‘de facto mixity’? Is the Member States’ continuing membership of the WTO, after Article 207 TFEU and the ECJ’s case law, 25 an example of such ‘de facto mixity’?
With respect to mixed agreements, the phenomenon of ‘incomplete’ mixity, implying that some but not all Member States become contracting parties, deserves more attention: How often does it occur, what are the legal and practical difficulties stemming from such agreements and is this category even legally permissible? Is it even a sign of the absurdity of mixity? 26
Another aspect of mixity which does not seem to have been studied systematically concerns the status and role of mixed agreements at the Member State level: How are these agreements conceived and presented at national level and how does the distinction between Union and Member State competence play out in the application and implementation of such agreements? Does national practice confirm a distinct ‘national’ role for such agreements or is Member States’ participation at the end of the day to be viewed as predominantly or exclusively symbolic? Are, on the contrary, mixed agreements applied at the national level as if the Union would not be involved at all?
The main idea behind these suggestions is to encourage more research on the practical relevance of legal rules of both an institutional, procedural and substantive nature and of the real impact of EU external policies and actions. As in the area of EU external relations, reality often seems to be at variance with the law, and an enhanced reality check is called for.