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2021 | Book

The Value of the EU International Values Read chapter Read first chapter

The Evolving Nature of EU External Relations Law

Editors: Dr. W. Th. Douma, Prof. Dr. C. Eckes, Prof. Dr. P. Van Elsuwege, Dr. E. Kassoti, Dr. A. Ott, Prof. Dr. R. A. Wessel

Publisher: T.M.C. Asser Press

Part of: Springer Professional "Wirtschaft+Technik" , Springer Professional "Wirtschaft"

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About this book

This book originates from the proceedings of the 10th anniversary conference of the Centre for the Law of EU External Relations (CLEER) in which renowned experts in the field took stock of recent evolutions in the law and practice of the EU’s external relations.
In particular, the book addresses the question of how the evolving legal and political framework affects the nature of EU external relations law. The contributions discuss the actions (and reactions) of the EU through external action instruments in a number of substantive areas such as migration, trade, neighbouring policies, security and defence. By shedding light on the most significant developments of the past decade this edited volume attests to the ever-evolving nature of the field of EU External Relations Law. Thus, this book is essential reading for academics, practitioners and policy makers at the EU level interested in the field of EU External Relations Law.
Dr. W.Th. Douma is an Independent legal expert at the European Environmental Law Consultancy and EU Legal – Centre for European and International Law, both based in The Netherlands, voluntary researcher at Ghent University in Belgium, and Senior Legal Adviser at the Dutch Ministry of Social Affairs and Employment. Prof. Dr. C. Eckes is Professor of European Law at the University of Amsterdam and director of the Amsterdam Centre for European Law and Governance, The Netherlands. Prof. Dr. P. Van Elsuwege is Professor of European Union Law at Ghent University and co-director of the Ghent European Law Institute, Belgium. Dr. E. Kassoti is Senior researcher in EU and International Law at the Asser Institute and academic co-ordinator of the Centre for the Law of EU External Relations (CLEER), The Netherlands. Prof. Dr. A. Ott is Professor of EU External Relations Law and Jean Monnet professor in EU Law at Maastricht University, The Netherlands. Prof. Dr. R.A. Wessel is Professor of European Law and Head of the European and Economic Law Department at the University of Groningen, The Netherlands.

Table of Contents

Frontmatter

The EU as Exporter of Rules and Standards

Frontmatter
Chapter 1. The Value of the EU International Values
Abstract
This chapter focuses on the nature and effect of the values and principles enshrined in Articles 3(5) and 21 TEU, which set out the objectives and limits of the EU’s external action. It begins with some introductory remarks highlighting the constitutional significance of international values aimed at giving guidance to the conduct of the EU foreign relations power. The second part explores the tendency of the CJEU to use these values and principles as a means of enlarging the functional scope of the EU competences. The problematic issues flowing from this approach, in particular the relation between general objectives of the EU’s external action and particular objectives assigned to single areas, are discussed in the third part. The chapter concludes with a brief enquiry on the impact of general values and objectives on the principle of conferral.
E. Cannizzaro
Chapter 2. New Approaches in the Promotion of EU Standards
Abstract
This chapter addresses a potential risk of lower standards in the so-called ‘new-generation’ free trade agreements (FTAs) compared to earlier FTAs in closer geographical proximity to European Union (EU) borders. Economic models had anticipated a race-to-the-bottom effect of regulatory convergence, but in trade regulation practice, a tendency towards the adoption of higher regulatory standards has been found. The EU couples the adoption of higher standards with multilateral incentives for trade facilitation and sustainable development goals. Empirical research on the promotion of norms and standards in EU trade agreements, if controlled for the distance between the EU and third-country negotiation partners, shows a decline in the adoption of higher EU regulatory standards in a new generation of FTAs. This chapter identifies two central challenges in the promotion of regulatory cooperation for the EU. Firstly, regulatory cooperation is politically costlier than border measure trade liberalization. Regulatory cooperation is also not always linked to trade liberalization and may be associated with protectionist measures. Secondly, the bargaining power from the single market may not be as significant for geographically distant third-country trade negotiations. However, two new multilateral agreements could assist the EU in its attempt to promote its regulatory values and standards.
M. Theisinger
Chapter 3. Shaping EU External Relations Beyond Treaty-Making: The Scope of Extraterritorial EU Legislation and Its Enforcement Challenges
Abstract
The relationship between the European Union (EU) and its partners is essentially based on a network of bilateral, regional or multilateral treaties, broadly interpreted by the Court of Justice and analysed by legal doctrine. In recent years, however, there has been a proliferation of European secondary law that contains provisions regulating people, goods or services located outside the EU territory. Its existence raises a set of challenges that have not been examined by legal literature. The first challenge concerns the personal and material scope of the extraterritorial EU secondary law. This study reveals, in particular, the role that the European Union can play on the international scene on account of its unilateral normative activity. The second challenge concerns the implementation of extraterritorial EU secondary law. The extraterritorial nature of EU legislation should require specific implementation acts and procedures taking into consideration the difficulties arising from their extraterritorial nature. This study suggests, however, that their specific nature was not entirely taken into account by EU legislation.
D. Dero-Bugny, J. Motte-Baumvol
Chapter 4. CETA: Gold Standard or Greenwashing?
Abstract
The EU Treaties demand that EU trade policy must contribute to the sustainable development of the EU and its trading partners. It is investigated whether CETA is in conformity with this requirement and thus can form a gold standard for future trade agreements. The investor-state dispute settlement (ISDS) part of CETA, the Trade and Sustainable Development (TSD) chapters and the statements attached to the agreement are concentrated on. These aspects are investigated against the background of the manner in which EU trade agreements are negotiated, the role of the Trade Sustainability Impact Assessment (TSIA) system and public participation aspects. Under CETA’s Investment Court System (ICS, a form of ISDS), the national judiciary is bypassed, and states can be ordered to pay compensation for adopting non-discriminatory measures aimed at the protection of legitimate public welfare objectives, such as health, safety and the environment. This can cause a regulatory chill and hinder the ‘right to regulate’ in practice at a time where the adoption of climate changes measures already poses formidable challenges. Neither the TSD chapters nor the statements take away these concerns, notably because the chapters lack an enforcement mechanism with sanctions and because the statements lack clear explanations that could be of legal value. The manner in which the precautionary principle is dealt with in the TSD chapters and the statements is used as a case in point. CETA forms no gold standard, it is concluded, and should definitely not be mirrored in other EU FTAs like the EU-Mercosur agreement.
W. Th. Douma

The EU, Treaty-Making, and Foreign Policy

Frontmatter
Chapter 5. The CJEU and the Potential and Limitations of Systemic Integration
Abstract
This chapter enquires into the CJEU’s increasing reliance on the international law principle of systemic integration in the context of interpreting international agreements concluded with third parties. The main argument advanced here is that, despite the principle’s potential as a tool for achieving the harmonious co-existence between EU and international law, the CJEU’s application of the principle in practice is problematic. The chapter argues that as long as the Court is unwilling to use international law rules as these are understood and applied in international judicial practice, systemic integration cannot be convincingly conceived as a mechanism for promoting the international rule of law within the EU legal order.
E. Kassoti
Chapter 6. Provisional Application’s Novel Rationale: Facilitating Mixity in the EU’s Treaty Practice
Abstract
This chapter argues that the EU has created a new use for the mechanism of provisional application of treaties foreseen in Article 25 VCLT. Differently from established rationales for relying on provisional application, the EU as a federal polity uses it to allow effective external action of the federal level without pushing out the Member States from the international plane (as would be the case in a typical federal polity). In EU terms, the PIL mechanism of provisional application facilitates the internal EU decision for mixed agreements. While useful and rather elegant, reliance on this mechanism also raises a host of further legal questions, both under PIL and EU law. The present chapter focuses on the latter and looks into how the Council of the EU defines the scope of provisional application; how these decisions should in theory be informative of the delimitation of competences within the EU but in practice are not; and how provisional application can be terminated on the EU side.
M. Chamon
Chapter 7. PESCO’s Microcosm of Differentiated Integration
Abstract
Differentiation, or what some have called the ‘negative starting point’ of integration, has always been the norm in EU defence policy. Political leaders in the European Council are nevertheless mindful of the need to protect their citizens against security threats from within and outside the EU’s borders. For this reason, a package of defensive measures has been developed with remarkable speed since 2016. Permanent Structured Cooperation (PESCO) is the most prominent innovation in this field. Somewhat surprisingly, PESCO has produced the most inclusive expression of enhanced cooperation, even if it is the most flexible of the differentiated integration mechanisms provided by the Treaties. This is largely the result of a German push for inclusivity, which prevailed over a French desire for a higher level of ambition. Driven by the European Defence Fund (EDF), PESCO has been touted as the formula to generate ‘positive differentiation’, or greater convergence in Europe’s defence sector. With varied clusters of member states lining up behind different types of projects, this chapter looks at the deeper forms of differentiated integration that are maturing below the Treaty level in EU defence. Is PESCO developing in the way that Germany envisaged or France wanted?
S. Blockmans
Chapter 8. The Participation of Members and Non-members in EU Foreign, Security and Defence Policy
Abstract
The idea of a common policy is, firstly, that it includes all Member States, and, secondly that it should include EU members only. The present contribution aims to assess how the Union has attempted to overcome the tension between the ambition to create a common foreign policy as a clear Union policy, and the need to pragmatically accept the fact that not all Member States are always onboard (and that third states sometimes are). The notion of ‘EU membership’ is thus approached from two different angles: 1. to what extent does EU membership entail the demand that all Member States agree to and implement CFSP decisions; and 2. to what extent is it legally possible for third states to participate in CFSP?
R. A. Wessel

The EU and Third European Countries

Frontmatter
Chapter 9. The Building Blocks and Stumbling Stones of Constructing the European Legal Space
Abstract
The integration of third European countries into the EU’s framework of policies and rules is a trajectory of renewed attention in law and politics. The international agreements setting up a legal relationship between the EU and the third European country might differ in detail, but are characterized by similar legal building blocks and legal tools. This chapter explains which categories of international agreements exist and which legal tools are employed to build a European Legal Space in which the EU rules and policies are extended to third countries. The legal content and the legal tools extending EU rules and enforcing and safeguarding their application in international agreements are decisively shaped by the EU’s formal, political and judicial conditions. These conditions are characterized by respecting EU’s competences, safeguarding the integrity of EU law and the autonomy of the EU courts.
A. Ott
Chapter 10. Where Do We Go from Here? EU Relations with the Eastern Partnership Avant Garde
Abstract
This chapter looks at the relations between the European Union and the Eastern Partnership avant garde, that is Ukraine, Georgia, Moldova. In the course of the last ten years these three countries negotiated and signed very ambitious Association Agreements, which promise enhanced bilateral relations but without an explicit offer of EU membership on the horizon. At the same time, the signals coming from Kyiv, Tbilisi and (occasionally) Chișinău indicate that the choice of a pro-EU trajectory is there to stay. With this in mind the analysis looks at the heart of the Association Agreements, that is, law approximation and, in broader terms, the way in which the association is developing. The author argues that the EU is reaching a point when, as in any close relationship, it will have to make its future intentions clear. Towards the end of the chapter a few suggestions as to the next steps forward are made. The easiest, and the most do-able option is to regularly update the lists of the EU acquis pencilled in for approximation. Furthermore, the relations could be upgraded by a reformed institutional framework, potentially modelled on the draft EU-Swiss Institutional Agreement and the EU-UK Withdrawal Agreement. The parties may also wish to explore additional areas of co-operation, going beyond the current parameters of the Association Agreements. The EU also needs to be prepared that at some point in the future applications for membership may arrive.
A. Łazowski
Chapter 11. Legal Status of the United Kingdom as a Third State: Strange Déjá Vu
Abstract
The UK government envisaged a clean break from the Union but, under the Withdrawal Agreement, the UK’s legal position as a “third state” is ambiguous. Throughout the transition period, the UK is in many respects hardly distinguishable from an EU member state. After the transition period, the UK remains outside Union institutions, but applies core EU rules in respect of specific persons (EU citizens settled in the UK) or areas (Northern Ireland). Furthermore, UK authorities must apply these EU rules in light of EU principles and are, by and large, subject to the control of EU institutions, particularly the Court of Justice. Several aspects of the new legal status of the UK are a déjà vu, since the Withdrawal Agreement is relatively similar to “integration-oriented agreements”, such as Association Agreements. To be sure, this similitude is imperfect, as the degree of integration of the United Kingdom varies considerably, depending on the subject matter, the persons and regions concerned, and/or the moment when the law is applied. The UK’s legal position, therefore, remains complex and contradictory: as it was the least integrated member of the Union, it is now a very integrated third state.
M. Gatti
Chapter 12. Brexit and the ‘Great British Trade-Off’: The Future of the EU’s and the UK’s External Treaty Relations
Abstract
The United Kingdom has left the European Union. While both sides continue to shape their future relationship, Brexit also reveals a distinctly global dimension. The UK government is negotiating “continuity agreements” with countries around the world to replace agreements concluded by the EU, while also aiming to strike new agreements where the EU has failed to do so thus far. At the same time, the EU as a global treaty-maker is not standing still either. This setting provides a fertile ground for a comparative analysis of the performance of both the UK and EU as international treaty negotiators, especially in the area of trade. This chapter argues that such a comparison serves as an unprecedented opportunity for testing some of the core assumptions of both Eurosceptics and proponents of European integration. The assumptions can be grouped under two opposing narratives designated here as “Global Britain” and “Market Power Europe”, respectively. While the former suggests that the UK will be better off “unshackled” from the EU by becoming a more agile and effective international actor, the latter argues that the benefits of being able to rely on the collective economic power of the EU outweigh the costs of heterogeneity of interests and more burdensome decision-making. Comparing the ability of both the EU and UK to conclude trade agreements with partners around the world, and comparing the respective terms accorded to them, will enable researchers to provide insights into the costs and benefits of “non-Europe” on the international stage. However, in order to produce meaningful findings, numerical, normative, relative and cumulative methodological challenges will have to be overcome. Therefore, a new interdisciplinary approach is required that combines rigorous legal analysis with empirical-legal, qualitative, and economic methods to answer a fundamental question: was striking out on its own in the world “worth it” for the first country that left the EU?
J. Larik

The EU and Migration Policies

Frontmatter
Chapter 13. Two Years After the Adoption of the Global Compact for Migration: Some Thoughts on the Role Played by the EU
Abstract
In December 2018, all the media attention was on the adoption of the Global Compact for Migration at the Marrakesh intergovernmental conference. Developed as an international answer to the migration crisis, the Global Compact for Migration became a political symbol for many States, including some EU Member States, in holding an anti-migration discourse. By contrast, the EU has played a great role in shaping the Global Compact for Migration since the beginning of the negotiations in 2017. The gradual lack of support of some EU Member States created a situation where the unity of EU representation on the international scene has been injured. Two years after its adoption, this contribution aims to offer some thoughts on the EU’s role in the process of negotiation and adoption of the Global Compact for Migration. It aims to discuss the (lack of) an EU legal framework for negotiations of international soft law instruments by looking at the case-law of the Court of Justice, notably Council v. Commission (C-660/13).
P. Melin
Chapter 14. The Externalisation of EU Migration Policies: The Implications Arising from the Transfer of Responsibilities to Third Countries
Abstract
The EU and its Member States have resorted very often to the externalisation of migration policies with the aim of preventing the access of irregular migrants and persons in need of international protection to the territory of the Member States. The transfer of responsibilities to third countries in the management of migration does not exonerate the EU and its Member States from the infringements of human rights that might take place on the territory of third countries. The aim of this chapter is to analyse the implications arising from the transfer of responsibilities to third countries in the management of migration and, in particular, the cooperation developed with Libya in recent years.
J. Santos Vara, L. Pascual Matellán
Chapter 15. The EU’s Policy Towards Combatting Trafficking in Human Beings in Its Relations with the Eastern Neighbourhood: A Human Rights-Based Approach?
Abstract
The fight against trafficking in human beings has been on the European Union’s (EU) internal and external agenda since the 1990s. Having acquired competence to regulate this matter, the EU has gradually developed a legal framework to combat this crime incorporating a human rights-based approach with an emphasis on victim protection. Cooperation with third countries, particularly those on its doorstep including the countries of the Eastern Partnership, has been essential to fight trafficking in human beings to the EU’s territory. The chapter traces the security and human rights nexus embedded in these efforts in the myriad of EU instruments established with the Eastern neighbours in bilateral and regional relations. It concludes that while firmly placed within the domain of the external aspects of the area of freedom, security and justice, the EU has transposed the human rights-based approach most prominently through the reforms associated with visa liberalisation.
N. Ghazaryan
Chapter 16. EU Cooperation with Third Countries on Migration and Asylum: The Case of Libya Revisited
Abstract
The so-called “migration crisis” that Europe has been facing since 2015 has led the European Union (UE) to reconsider its partnership with countries of origin and transit, especially Libya, as crucial in the fight against migration. In the meantime, extremely worrying accounts of horrors and serious human rights violations (including slave auctions) perpetrated against migrants and asylum-seekers detained in Libya by members of the Libyan security forces, armed groups and criminal gangs emerge from that country. From this observation and using an effort of analysis and critical reflection based on review of the relevant literature, this chapter attempts to answer the following two key questions: (i) To what extent can it be assumed that the EU indirectly exposes migrants and asylum seekers to unimaginable horrors by directly funding their detention system in Libya? (ii) Is EU cooperation with Libya undertaken in accordance with the values and principles enshrined in Articles 2 and 21 of the Treaty on European Union (TEU), on which the EU is founded? In this sense, the axial goal of this chapter is to analyse the adequacy or lack of adequacy to international and European law of ongoing EU cooperation with Libya in the area of migration and asylum. It therefore concludes by arguing that, to become a true “civil power” and contribute to good global governance of human mobility, the EU must align its migration control policies with its founding principles and values under European and international law.
A. dos Santos Soares, S. Beck-Mannagetta
Metadata
Title
The Evolving Nature of EU External Relations Law
Editors
Dr. W. Th. Douma
Prof. Dr. C. Eckes
Prof. Dr. P. Van Elsuwege
Dr. E. Kassoti
Dr. A. Ott
Prof. Dr. R. A. Wessel
Copyright Year
2021
Publisher
T.M.C. Asser Press
Electronic ISBN
978-94-6265-423-5
Print ISBN
978-94-6265-422-8
DOI
https://doi.org/10.1007/978-94-6265-423-5