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2017 | OriginalPaper | Buchkapitel

1. Introducing a Layered Global Player

verfasst von : Henri de Waele

Erschienen in: Legal Dynamics of EU External Relations

Verlag: Springer Berlin Heidelberg

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Abstract

This chapter enables readers to familiarise themselves with the layered structure of the European Union, its presence and activities on the global scene and the legal underpinnings thereof. After a short introduction (Sect. 1.1), the sub-sections discuss, successively, the particular characteristics of the various layers (Sect. 1.2), the division of competences and the attendant interrelation between the EU and the Member States (Sect. 1.3), the Union’s international legal personality (Sect. 1.4), EU treaty-making (Sect. 1.5) and the system of judicial review (Sect. 1.6). Once the essence of these general features is well understood, the ground will be prepared for an in-depth study of the dynamics of the ‘outer’, ‘middle’ and ‘inner’ layers that contain its different external policies, and are explored further in parts I, II and III of this book.

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Nächstes Kapitel The Common Foreign and Security Policy

Articles 3–6 TFEU.

See Case 22/70, Commission v Council (ERTA). More on this in Sect. 1.4.1 below.

Among the first to promote this particular view of the EU’s institutional set-up were Curtin and Dekker (1999). Similarly, Krajewski (2004) depicted the body of rules as a ‘multi-level constitution’ of EU foreign relations.

Which consists moreover of the Common Security and Defence Policy, but the CSDP is closely connected to the CFSP and can be viewed as its sub-domain. The interrelation between the two is clarified further in Chap. 3.

Including economic, financial, technical cooperation and humanitarian aid.

See e.g. Case C-124/95, The Queen, ex parte Centro-Com Srl v HM Treasury and Bank of England. More on these limits in Chap. 9, Sect. 9.3.

See also what was originally Article 211 of the EEC Treaty: ‘In each of the Member States, the Community shall enjoy the most extensive legal capacity accorded to legal persons under their laws; it may, in particular, acquire or dispose of movable and immovable property and may be a party to legal proceedings. To this end, the Community shall be represented by the Commission.’

Other privileges include the right to send representatives and be represented in international forums, and the right to enjoy immunities also accruing to other actors.

Case 22/70, Commission v Council (ERTA).

Most notably in Article 11 TEU (pre-Lisbon numbering).

Cf. Klabbers (1998).

This was a gradual process however. For instance, in the early 1990s, the Member States had to operate as a collective for the conclusion of a memorandum of understanding on the administration of the Bosnian city of Mostar, as the Union itself was considered incompetent to enter into the agreement on its own behalf.

Article 24 TEU (pre-Lisbon numbering). In what was then Article 38 TEU, a similar competence was installed for the former ‘third pillar’.

Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion), ICJ Reports 1949, p. 178.

In line with what is stipulated in Article 27 of the Vienna Convention on the Law of Treaties 1969: ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.’

If, after an international agreement has entered into force, the ECJ finds at a later stage that it was actually concluded on a wrong legal basis, the measure concluding the agreement will be invalidated. In order to protect third parties and comply with the VCLT rules, the agreement itself will remain valid and binding, not just by virtue of public international law, but also as a matter of EU law: see Case C-327/91, France v Commission. Moreover, the effects of the decision are ordinarily maintained until the moment a ‘corrective’ act is adopted.

In addition, Articles 229, 230 and 231 TEEC mandated the establishment of close cooperation with the United Nations, the Council of Europe and the OECD, and other ‘appropriate’ international organisations.

Case 22/70, Commission v Council (ERTA).

In legal doctrine, the Roman maxim ‘in foro interno, in foro externo’ is also often employed.

Joined Cases 3, 4 and 6/76, Criminal Proceedings against Kramer and Others.

Opinion 1/76, Draft agreement establishing a European laying-up fund for inland waterway vessels.

For example, the provisions on energy and transport still do not refer to corresponding external competences.

E.g. in the Open Skies judgments: see Case C-467/98, Commission v Denmark; Case C-468/98, Commission v Sweden; Case C-469/98, Commission v Finland; Case C-471/98, Commission v Belgium; Case C-472/98, Commission v Luxembourg; Case C-475/98, Commission v Austria; Case C-476/98, Commission v Germany; Case C-523/04, Commission v Netherlands.

Thus, we can e.g. conclude that when a power to conclude an international agreement is conferred by a non-legislative act, it will have to be considered as shared.

A long-standing point of mystery, unresolved by these provisions, remains the nature of the Common Foreign and Security Policy. According to some authors, the drafters of the Treaties sought to underline the specificity of the CFSP as a wholly distinct policy field, not subject to pre-emption nor merely complementary to Member State activities. See e.g. Cremona (2008), p. 64; Dashwood (2013), p. 6.

In the past however, the ambit of the CCP has considerably shifted. This will be discussed in greater detail in Chap. 4.

An explicit ‘relinquishing’ decision from the side of the EU is required for this situation to arise. Thus, a Member State may not assume that it has regained its powers by virtue of the fact that the EU has not put them to use for a protracted period of time: see Case 804/79, Commission v United Kingdom.

See further Chap. 9, Sect. 9.3.3.

Case C-114/12, Commission v Council (Convention on the protection of broadcasting organisations rights). See also Opinion 1/03, Competence to conclude the new Lugano Convention.

Opinion 1/13, Accession of third states to the Hague Convention on the civil aspects of international child abduction.

Ibid., paragraphs 72–74. In this vein, see also Opinion 3/15, Competence to conclude the Marrakesh Treaty.

Cf. Cremona (2008), p. 62.

The EU may engage in any type of undertakings binding under international law, irrespective of their formal designation: see Opinion 1/75, Draft Understanding on a Local Cost Standard.

Again however, disregard of these ‘internal’ requirements does not automatically prejudice the validity and bindingness of the agreement under international law.

Since the entry into force of the Lisbon Treaty, all proposed agreements need to be subjected to this procedure, irrespective of whether they lie within the scope of the CFSP or of any other external EU competence. For the Common Commercial Policy however, one should note that there is the lex specialis regime of Article 207(3) TFEU, which contains a number of deviations (detailed further in Chap. 4 of this book). An additional exception is to be found in Article 219 TFEU, for international agreements on monetary matters.

Since the 1970s, this has been standard practice in the so-called Luns-Westerterp procedure, later codified in the various framework agreements on relations between the Parliament and the Commission. On this see e.g. Thym (2008) and Passos (2016).

Case C-658/11, Parliament v Council (Mauritius agreement); see also Case C-263/14, Parliament v Council (Tanzania agreement).

MEPs cannot participate directly in these negotiations, but they may be granted observer status by the Commission, subject to the diplomatic, legal and technical possibilities in the dossier concerned.

Case C-425/13, Commission v Council (EU-Australia ETS negotiations).

Provisional application can be terminated by a party to the agreement without further notice and without giving reasons (see Article 25(2) VCLT). This renders it a weak position to be in for too many years, if only from the perspective of legal certainty. Under international law, parties usually resort to it for (agreements containing) minor amendments to existing treaties. The EU shows a greater enthusiasm, with regularity applying all parts of mixed agreements that fall within the Union competence provisionally. For further reflections, see Quast Mertsch (2012).

The Court has construed the word ‘exclusively’ in Article 218(6) TFEU to mean ‘predominantly’ in Case C-263/14, Parliament v Council (Tanzania agreement).

In case of urgency, the Parliament and the Council may agree upon a time-limit for consent.

Again, a time-limit may be set, here by the Council. If Parliament fails to deliver its opinion before the expiry of the deadline, the Council may press ahead with the conclusion.

To reason otherwise would infringe the principle of distribution of powers in Article 13(2) TEU and the principle of institutional balance: see Case C-660/13, Council v Commission (Addendum to the EU-Switzerland MoU).

See respectively Articles 258–260, Article 263 and Article 267 TFEU.

See e.g. Case 181/73, Haegeman v Belgium.

The Court has extended its competence to assess envisaged agreements of the EU whereby the Member States act as its medium (Opinion 2/91, Conclusion of ILO Convention No. 170 concerning safety in the use of chemicals at work) and, more controversially, to some agreements concluded by the Member States on their own behalf (Opinion 1/13, Accession of third states to the Hague Convention on the civil aspects of international child abduction).

An extensive discussion provides Adam (2011).

The latter remains a rare occurrence in EU law, and has never been triggered by the incompatibility of a proposed international agreement. However, the Court’s controversial position in Opinion 2/94, where it denied that the Community was competent to accede to the ECHR, did in the long run result in a specific legal basis being inserted (at the Treaty of Lisbon, with the revision of Article 6 TEU).

Again, in line with Article 27 VCLT (cf. supra, footnotes 15 and 16).

See e.g. Opinion 2/94, Accession of the Community to the European Convention on Human Rights, paragraph 13, and Opinion 1/09, Creation of a unified patent litigation system, paragraph 53.

Unless when it deems that there are imperative reasons to speak out nevertheless: see Opinion 3/94, Framework agreement on bananas, and Opinion 1/13, Accession of third states to the Hague Convention on the civil aspects of international child abduction.

Cf. Garbagnati Ketvel (2006), pp. 79–80.

Earlier case law suggested, and many scholars assumed, that such ‘cross-pillar surveillance’ would be possible vis-à-vis CFSP measures. A 1998 ruling in respect of a former ‘third pillar’ act foreshadowed the Court’s comprehensive approach; see Case C-170/96, Commission v Council (Airport Transit Visa).

Case C-91/05, Commission v Council (ECOWAS). The contested CFSP decision that purported to implement a CFSP joint action was ultimately annulled for disavowing the EC competence on development cooperation (and clashing with parts of the Cotonou Agreement, enacted on the basis of that competence (now contained in Article 209 TFEU)).

In line with Article 25 TEU, such acts will merely comprise ‘decisions’. Moreover, in line with Article 24(1) TEU, which rules out the adoption of legislative acts, these will mainly be of a technical and executive nature.

See e.g. Case C-263/14, Parliament v Council (Tanzania agreement).

On this, see more generally Case C-178/03, Commission and Parliament v Council (Incorporation of the Rotterdam Convention), and Case C-166/07, Parliament v Council (International Fund for Ireland).

As argued in van Elsuwege (2010), the trusted ‘centre of gravity’ test may well prove wholly unsuited for this specific domain.

As regards judicial review of the measures subsequently adopted on the basis of Article 215 TFEU, the jurisdiction of the EU Courts is self-evident.

Joined Cases C-402/05 P & C-415/05 P, Kadi and Al Barakaat International Foundation v Council and Commission.

Case T-228/02, Organisation des Modjahedines du peuple d’Iran v Council; T-157/07, People’s Mojahedin Organization of Iran v Council; Case T-256/07, People’s Mojahedin Organization of Iran v Council; Case T-284/08, People’s Mojahedin Organization of Iran v Council.

Case T-47/03, Sison v Council; Case C-266/05 P, Sison v Council; Case T-341/07, Sison v Council.

The ‘blacklists’ led to a wholesale freezing, in every Member State of the Union, of the financial assets and resources of the persons and enterprises concerned.

The early stance of the CFI had been rather reluctant, and it only grudgingly accepted its being overruled: see Case T-306/01, Yusuf and Al Barakaat International Foundation v Council and Commission, and Case T-315/01, Kadi v Council and Commission. The judgments triggered an avalanche of scholarly writing; further references can e.g. be found in de Búrca (2009) and Cuyvers (2011). A comprehensive study offers Eckes (2014).

Meanwhile, at the UN level, in the wake of the first Kadi appeal judgment, a special Ombudsperson was installed that can be approached by those alleging to have been blacklisted erroneously. For further details, see Boisson de Chazournes and Kuijper (2011).

Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, Commission and Others v Yassin Abdullah Kadi.

Case C-72/15, Rosneft Oil Company OJSC v Her Majesty’s Treasury, The Secretary of State for Business, Innovation and Skills, The Financial Conduct Authority.

Case C-455/14 P, H. v Council, Commission and EU Police Mission in Bosnia and Herzegovina.

Case C-439/13 P, Elitaliana SpA v Eulex Kosovo.

See Regulation 1049/2001/EC regarding public access to European Parliament, Council and Commission documents, OJ [2001] L 145/43.

Case T-14/98, Hautala v Council. Ms. Heidi Hautala requested access to a report of a working group on conventional arms exports. The Council acquiesced in the kernel of the Court’s decision, but did lodge an appeal challenging the application of the grounds of refusal listed in said Regulation. The ECJ rejected this claim in Case C-353/99 P, Hautala v Council.

Compare the ECtHR judgments in Bosphorus Hava Yollari Turizm v Ireland, Application No. 45036/98 and Posti & Rahko v Finland, Application No. 27824/95.

Opinion 2/13, Accession of the European Union to the European Convention on Human Rights.

Kuijper (2014).

Adam S (2011) Le contrôle par la Cour de justice de la compatibilité avec les traités d’un accord international envisage par l’Union européenne. Bruylant, Brussels

Boisson de Chazournes L, Kuijper PJ (2011) Mr. Kadi and Mrs. Prost: is the UN ombudsperson going to find herself between a rock and a hard place? In: de Waele H, Rieter E (eds) Evolving principles of international law. Martinus Nijhoff, The Hague, pp 71–90CrossRef

Cremona M (2008) Defining competence in EU external relations: lessons from the treaty reform process. In: Dashwood A, Maresceau M (eds) Law and practice of EU external relations. Cambridge University Press, Cambridge, pp 34–69CrossRef

Curtin D, Dekker I (1999) The EU as a ‘Layered’ International Organization: Institutional Unity in disguise. In: Craig P, De Búrca G (eds) The evolution of EU law. Oxford University Press, Oxford, pp 83–136

Cuyvers A (2011) The Kadi II judgment of the general court: the ECJ’s predicament and the consequences for member states. Eur Const Law Rev 7:481–510CrossRef

Dashwood A (2013) The continuing bipolarity of EU external action. In: Govaere I, Lannon E, Van Elsuwege P, Adam S (eds) The European Union in the World–Essays in Honour of Marc Maresceau. Martinus Nijhoff, The Hague, pp 3–16

de Búrca G (2009) The ECJ and the international legal order after Kadi. Jean Monnet Working Paper No. 01/09

Eckes C (2014) EU restrictive measures against natural and legal persons: from counterterrorist to third country sanctions. Common Mark Law Rev 51:869–905

Garbagnati Ketvel MG (2006) The jurisdiction of the European Court of justice in respect of the common foreign and security policy. Int Comp Law Q 55:77–120CrossRef

Klabbers J (1998) Presumptive personality: the European Union in international law. In: Koskenniemi M (ed) International law aspects of the European Union. Kluwer, Deventer, pp 231–253

Krajewski M (2004) Foreign policy and the European constitution. Yearb Eur Law 23:435–462

Kuijper PJ (2014) The case law of the court of justice of the EU and the allocation of external relations powers. Whither the traditional role of the executive in EU foreign relations? In: Cremona M, Thies A (eds) The European court of justice and external relations law. Hart, Oxford, pp 95–114

Passos R (2016) The external powers of the European parliament. In: Eeckhout P, Lopez-Escudero M (eds) The European Union’s external action in times of crisis Bloomsbury. Hart, Oxford, pp 85–128

Quast Mertsch A (2012) Provisionally applied treaties: their binding force and legal nature. Martinus Nijhoff, The HagueCrossRef

Thym D (2008) Parliamentary involvement in European international relations. In: Cremona M, de Witte B (eds) EU foreign relations law. Hart, Oxford, pp 201–232

van Elsuwege P (2010) EU external action after the collapse of the pillar structure: in search of a new balance between delimitation and consistency. Common Mark Law Rev 47:987–1019

Titel: Introducing a Layered Global Player
verfasst von: Henri de Waele
Verlag: Springer Berlin Heidelberg
Buch: Legal Dynamics of EU External Relations
Print ISBN: 978-3-662-54816-5

Electronic ISBN: 978-3-662-54817-2

Copyright-Jahr: 2017
DOI: https://doi.org/10.1007/978-3-662-54817-2_1