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Published online by Cambridge University Press: 27 October 2017
The Lisbon Treaty has fundamentally revised the external relations of the EU in pursuit of more visibility, coherence and consistency. The EU is, for instance, given a single legal personality, the pillar structure is (formally) abolished, new functions are created to reinforce its external representation and external policies appear to be streamlined. But is there more to it than meets the eye? A critical legal assessment is given of the major Treaty modifications relating to the EU external relations whilst addressing two underlying issues. First it is questioned whether the Member States have really given up their traditional reluctance to share fully the international scene with the EU. It is argued that the Lisbon Treaty in fact means to redress the balance in favour of intergovernmentalism under CFSP. A second crucial and related issue links to the silent dialogue with the CJEU to be discerned in the Lisbon Treaty. It wavers between the codification of important case law, such as Kadi, and attempts at containing or even reversing case law which was more prejudicial to the Member States’ interests, such as the Ecowas judgment. In so doing the Lisbon Treaty again raises interesting yet complex legal questions which will most likely necessitate further clarification through case law.
1 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C306.
2 Speech by H Van Rompuy, President of the European Council, at the College of Europe in Bruges, 25 February 2010, ‘The Challenges for Europe in a changing world’, PCE 34/10, available at www.coleurope.eu/template.asp?pagename=speeches.
3 Speech by H Van Rompuy, President of the European Council at the European Parliament, Brussels, 24 February 2010, PCE 32/10, available at www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/113028.pdf.
4 Art 47 TEU (Consolidated version of the Treaty on European Union [2010] OJ C83).
5 Art 218 TFEU (Consolidated version of the Treaty on the Functioning of the European Union [2010] OJ C83.
6 Ex Art 281 EC.
7 On the basis of ex Art 24 TEU (now Art 37 TEU) as first inserted by the Amsterdam Treaty.
8 See also Kaddous, C, ‘External Action under the Lisbon Treaty’, in Pernice, I and Tanchev, E (eds), Ceci n’est pas une Constitution—Constitutionalisation without a Constitution? (Baden-Baden, Nomos, 2009) 172, 173Google Scholar.
9 Before the Lisbon Treaty the principle of attributed or conferred competence was mentioned only in ex Art 5(1) EC.
10 See in particular the third paragraph of Declaration No 18, which reads: ‘Equally, the representatives of the governments of the Member States, meeting in an Intergovernmental Conference, in accordance with the ordinary revision procedure provided for in Art 48(2)–(5) of the Treaty on European Union, may decide to amend the Treaties upon which the Union is founded, including either to increase or to reduce the competences conferred on the Union in the said Treaties.’ (emphasis added).
11 See the new Art 50 TEU on the procedure to be followed for withdrawal agreements.
12 Prior to the Lisbon Treaty there were three possible actors, the EC, the EU and the Member States. On the implications of the abolishment of the pillar structure, see below at pt IV.
13 See for instance the speech by Angela Merkel at the College of Europe, as quoted in the conclusions, see below at pt VII.
14 Case 22/70 Commission v Council (ERTA) [1971] ECR 263, esp at para 70, where the CJEU firmly ruled: ‘Although the Council may, by virtue of these provisions, decide in each case whether it is expedient to enter into an agreements with third countries, it does not enjoy a discretion to decide whether to proceed through intergovernmental or Community channels.’ The ERTA case is especially well known for, and firmly associated with, the introduction of the doctrine of implied powers in EU law.
15 Art 208(11) TFEU.
16 Opinion 1/75, OECD Understanding on a local cost standard, [1975] ECR 1355.
17 See for instance Opinion 1/94, WTO Agreement, [1994] ECR I-5267; Opinion 1/03, Lugano Convention, [2006] ECR I-01145; Opinion 1/08, GATS, schedules of commitments subsequent to EU enlargement, [2009] ECR I-11129.
18 For instance, see Case 22/70 ERTA above n 14; Case C-25/94, Commission v Council (FAO) [1996] ECR I-01469; Case C-411/06 Commission v Council (Shipments of waste) [2009] ECR I-07585.
19 For a discussion of ‘legislative Kompetenz-Kompetenz’ and ‘judicial Kompetenz-Kompetenz’ as well as the linkage between the two, see, Govaere, I, ‘Beware of the Trojan Horse: Dispute settlement in (Mixed) Agreements and the Autonomy of the EU Legal Order’ in Hillion, C and Koutrakos, P (eds), Mixed Agreements Revisited (Oxford, Hart Publishing, 2010) 187–207, esp 188–89Google Scholar.
20 See Govaere, I, ‘External Competence: What’s in a Name? The Difficult Conciliation between Dynamism of the ECJ and Dynamics of European Integration’, in Govaere, I, Demaret, P and Hanf, D (eds), European Legal Dynamics/Dynamiques juridiques européennes (Brussels, Revised and updated edition, éditions PIE-Peter Lang SA-Presses Universitaires Européennes, 2007) 67–483 Google Scholar.
21 Case 22/70, ERTA, above n 14; Opinion 1/76, Draft Agreement establishing a European laying-up fund for inland waterway vessels [1977] ECR 741.
22 A recent illustration is the June 2009 judgment of the German Bundesverfassungsgericht on the Lisbon Treaty, as commented by Hanf, D, ‘L’encadrement constitutionnel de l’appartenance de l’Allemagne à l’Union européenne. L’apport de l’arrêt “Lisbonne” de la Cour constitutionnelle fédérale’ (2009) 46(5) Cahiers de droit européen 639 Google Scholar, and the follow-up article: Hanf, D, ‘Vers une précision de la Europarechtsfreundlichkeit de la Loi fondamentale. L’apport de l’arrêt “rétention des données” et de la décision “Honeywell” du BverfG’ (2010) 46(3) Cahiers de droit européen 515–49Google Scholar. See also D Thym, ‘In the Name of Sovereign Statehood: A Critical Introduction to the Lisbon judgment of the German Constitutional Court’ (2009) CMLRev 1795.
23 It is interesting to see the discussion raised already at the 2001 Laeken Summit on ‘A better division and definition of competence in the European Union’. Three sets of questions were identified, namely ‘A first series of questions that needs to be put concerns how the division of competence can be made more transparent … The next series of questions should aim, within this new framework and while respecting the “acquis communautaire”, to determine whether there needs to be any reorganisation of competence … Lastly, there is the question of how to ensure that a redefined division of competence does not lead to a creeping expansion of the competence of the Union or to encroachment upon the exclusive areas of competence of the Member States and, where there is provision for this, regions.’ See the Presidency Conclusions, European Council Summit in Laeken, 14 and 15 December 2001, SN 300/1/01 REV 1, at 21–22, available at www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/68827.pdf. On the developments after the 2001 Laeken Declaration, see Cremona, M, ‘Defining Competence in EU External Relations: Lessons from the Treaty Reform Process’ in Dashwood, A and Maresceau, M, Law and Practice of EU External Relations, (Cambridge, Cambridge University Press, 2008) 34–69 CrossRefGoogle Scholar.
24 Declarations of Competence were used in the external context already before the Lisbon Treaty, in particular so as to increase the transparency and give an indication on EU competence to third countries.
25 This essentially means that such a shared competence may not become EU exclusive in nature through the exercise thereof.
26 This entails that the EU may not adopt harmonisation measures.
27 Express external competence in the Lisbon Treaty: A. NEW legal bases: Neighborhood policy (Art 8 TEU); Humanitarian Aid (Art 214 TFEU—special shared); Solidarity clause (Art 222 TFEU—MS object of terrorist attack or natural or man-made disaster, EU and MS to act jointly in spirit of solidarity). B. PRE-EXISTING legal bases: CFSP Arts 24–46 TEU); External dimension Area of Freedom, Security and Justice (Art 77–80 TFEU—shared); Research and Technological development and Space (Art 186 TFEU—special shared); Environment (Art 191(4) TFEU—shared); Common Commercial Policy (Art 206–07 TFEU—new content and procedure—exclusive); Development cooperation (Art 209 TFEU—special shared); Economic, Financial and Technical Cooperation with third countries (Arts 212–13 TFEU—complementary); Restrictive measures (Economic/financial sanctions) (Art 215 TFEU); Association agreements (Art 217 TFEU); Monetary policy (Art 219 TFEU—exclusive for Eurozone).
28 Similarly, see Rosas, A and Armati, L, EU Constitutional Law (Oxford, Hart Publishing, 2010) 208 Google Scholar.
29 Art 3(1)(e) TFEU.
30 The concept of CCP is now enlarged in Art 207 TFEU to include trade related intellectual property, services as well as investment measures.
31 See Art 4(4) TFEU.
32 On the constitutional importance of establishing the proper legal basis, see Case C-370/07 Commission v Council (CITES) [2009] ECR I-08917, esp at para 45–49, where the CJEU clearly points to the need to indicate the legal basis so as to allow the Court to exercise judicial review, in view of the principle of allocation of powers to the EU, the need to preserve the prerogatives of the various EU institutions as well as to determine the division of powers between the EU and the Member States.
33 See for instance Case C-411/06 (Shipments of waste), above n 18 at paras 45–47.
34 Alan Dashwood points out that ‘Article 3(2) TFEU is an object lesson in the unwisdom of seeking to enshrine in a Treaty provision subtle concepts that have been developed, and are still developing, in the case law’, A Dashwood ‘Mixity in the Era of the Treaty of Lisbon’ in C Hillion and P Koutrakos (eds), Mixed Agreements Revisited above n 19, 351–66, 362.
35 Opinion 2/00, Cartagena Protocol, [2001] ECR I-09713.
36 Case C-281/01, Commission v Council (Energy Star Agreement) [2002] ECR I-12049.
37 Case C-94/03, Commission v Council (Rotterdam Convention) [2006] ECR I-00001, note that this ruling is contrary to the Opinion of Advocate General Kokott, delivered on 26 May 2005, who found those two legal bases to be incompatible.
38 On the sweeping approach and the implications of the Lisbon Treaty for CCP competence specifically, see Govaere, I, ‘EU Common Commercial Policy Throwing off the Shackles of Mixity’ in Govaere, I, Quick, R and Bronckers, M (eds), Trade and Competition Law in the EU and Beyond (Cheltenham, Edward Elgar Publishing, 2011) 144–58CrossRefGoogle Scholar.
39 Opinion 1/78, International Agreement on Natural Rubber, [1979] ECR 2871.
40 See the Single European Act Declaration on Art 130r of the EEC Treaty, para 5(2): ‘The Conference considers that the provisions of Article 130r (5), second subparagraph do not affect the principles resulting from the judgment handed down by the Court of Justice in the AETR case’.
41 The Cartagena protocol opinion seemed to favour the international environmental context, the Energy Star judgment, the effect and content of the agreement, and the Rotterdam Convention case to a combination of those criteria.
42 Case C-376/98 Germany v Council [2000] ECR I-08419; Case C-380/03 Germany v Council [2006] ECR I-11573.
43 But see also Art 37 TEU replacing ex Art 24 TEU expressly stating that agreements may be concluded also with respect to CFSP.
44 See Opinion 1/94, WTO Agreement, [1994] ECR I-5267, at paras 85–86; and Opinion 2/92, Third Revised Decision of the OECD on national treatment, [1995] ECR I-521, at para 32. This second track of implied powers is not to be confused with the escape clause of Art 352 TFEU (ex Art 308 TEC), which may not be used in relation to CFSP (Art 352(4) TFEU), nor to attain a sole Art 3(1) TEU objective (Declaration No 41); nor to widen the scope of EU competence (Declaration No 42).
45 Opinion 1/94, ibid, at para 95.
46 Case 22/70, ERTA, above n 14, at para 22.
47 Art 1, para 3 TEU.
48 Art 3(5) TEU and Art 21(2) (ex Art 11) TEU.
49 Art 3(5)TEU (emphasis added).
50 For a good illustration of the extent of the EU policies in that respect as well as problems posed by the absence of legal basis, see COM (2000) 726 final, Report from the Commission on the implementation of measures intended to promote observance of human rights and democratic principles in external relations for 1996–99. For a critical analysis of the pre-Lisbon situation, see I Govaere and A Van Bossuyt, ‘Le commerce à visage de plus en plus humain? Les droits de l’homme dans la politique commerciale commune’, and Hoffmeister, F, ‘Les politiques de coopération au développement et d’assistance économique, technique et financière et les droits de l’homme’ in Soriano, M Candela (ed), Les droits de l’homme dans les politiques de l’Union européenne (Brussels, De Boeck/Larcier, 2006) 225–54 and 255–68 respectivelyGoogle Scholar.
51 COM (1995) 216, final, Communication from the Commission on the inclusion of respect for democratic principles and human rights in agreements between the Community and third countries. Case C-268/94, Portugal v Council (India Cooperation Agreement) [1996] ECR I-06177. On the law, policy and practice prior to the Lisbon Treaty, see Bartels, L, Human Rights Conditionality in the EU’s International Agreements (Oxford, Oxford University Press, 2005)CrossRefGoogle Scholar.
52 For an express clarification that the objectives, including former sole CFSP objectives, are now common to all EU external action, see Arts 21(3) TEU and 205 TFEU.
53 See the different approach adopted by the CJEU and the General Court in Joined Cases C-402/05 P and C-415/05 P, Kadi I [2008] ECR I-06351, which appealed Case T-315/01, Kadi I [2005] ECR II-03649.
54 Three appeals have been introduced against the judgment delivered by the General Court on 30 September 2010 (Case T-85/09, Kadi II, not yet published): one on 13 December 2010 by the Commission (Case C-584/10 P) and two on 16 December 2010 by the Council and the United Kingdom (respectively Case C-593/10 P and Case C-595/10 P).
55 Art 207(3) TFEU.
56 Art 218(3) TEU.
57 Case C-91/05, Commission v Council (Ecowas) [2008] ECR I-03651, see below at pt IV(C). On this case, see eg, C Hillion and R Wessel, ‘Competence Distribution in EU External Relations after Ecowas: Clarification or Continued Fuzziness?’ (2009) CML Rev 551.
58 See Art 8 TEU on neighbourhood policy.
59 Emphasis added.
60 On the Common Security and Defense Policy Aspects of the Lisbon Treaty, see Kaddous, C, ‘External Action under the Lisbon Treaty’ in Pernice, I and Tanchev, E (eds), Ceci n’est pas une Constitution—Constitutionalisation without a Constitution? (Baden-Baden, Nomos, 2009) 172–88, 182–84Google Scholar.
61 The continuing use of the strict opposition supranational/intergovernmental in EU context, is the subject of academic debate, see in particular Hillion, C and Wessel, R, ‘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, 2008) 79–121 Google Scholar. For a similar analysis after the Lisbon Treaty, see eg, P Van Elsuwege, ‘EU External Action after the Collapse of the Pillar Structure: in Search of a new Balance Between Delimitation and Consistency’ (2010) CML Rev 987 esp 994–96. However, that terminology still denotes best the inherently different legal nature of CFSP and other EU external action and in particular the clear intention of the Member States to keep political, democratic and legal control over CFSP as much as possible at a national level. An interesting and more detailed discussion of this debate is provided by Thym, D, ‘Foreign Affairs’ in Bogdandy, A Von and Bast, J, Principles of European Constitutional Law 2nd edn (Oxford, Hart Publishing, 2009) 309 Google Scholar. At 336 he pertinently points out that: ‘The existence of international legal personality does not imply the pervasive supranationalisation of the intergovernmental Union legal order. Instead, one has to conclude on a case-by-case basis whether the structure of the second pillar argues for or against the transfer of supranational legal principles … The constitutional characteristics of the intergovernmental foreign and security policies underline that European integration does not lead towards the unmitigated federalization of European foreign affairs, thereby not generally calling into question the sovereign independence of the Member States in their international relations.’
62 Art 31 TEU.
63 Art 31(2) TEU, but note that even here Member States may oppose bringing decisions to a vote for ‘vital and stated reasons of national policy’, which can then only be settled by a unanimous vote in the European Council.
64 Art 31(3) TEU.
65 Art 329(2) TFEU.
66 On the double hat of the High Representative, see below at pt V.
67 Although some influence may be exercised by the European Parliament in the new EEAS set up, see Council Decision of 26 July 2010 establishing the organization and functioning of the European External Action Service, [2010] OJ L201/38.
68 Art 36, para 1 TEU.
69 Art 36, para 2 TEU.
70 Art 207(2) TFEU.
71 See below, at pt IV(A).
72 See also Art 275 TFEU.
73 On the Kadi cases, see below at IV(A). On the issue of CJEU jurisdiction and legality control in Kadi I, see Govaere, I, ‘The Importance of International Developments in the Case-law of the European Court of Justice: Kadi and the Autonomy of the EC Legal Order’ in Hiscock, M and van Caenegem, W (eds), The Internationalisation of Law: Legislation, Decision-Making, Practice and Education (Cheltenham, Edward Elgar Publishing, 2010) 316 Google Scholar.
74 Opinion 1/75, above n 16, pt III.A.
75 Art 24(3) TEU.
76 Case 26/62, Van Gend en Loos [1963], ECR 1.
77 Judicial control is then basically referred back to the sole national level, as is the case to a large extent also for democratic control of CFSP.
78 Art I(6) of the aborted Constitutional Treaty stated clearly, under the heading ‘Union law’: ‘The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States’.
79 It is to be expected that Declaration No 17 concerning primacy will only have a limited impact. Note that this Declaration merely acknowledges primacy of the EU treaty under conditions laid down by case law, which does not extend to CFSP. For a discussion of this declaration, see Wouters, J, Coppens, D, De Meester, B, ‘The European Union’s External Relations after the Lisbon Treaty’, in Griler, S and Ziller, J (eds), The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty? (Vienna/New York, Springer, 2008) p 143, 190–91CrossRefGoogle Scholar.
80 The CJEU was given jurisdiction with regard to ex Art 47 TEU by ex Art 46 TEU.
81 A clear example of this is Case C-91/05, Ecowas, above n 57.
82 This could also (indirectly) be inferred from the express statement in Art 1, para 3 TEU that the TEU and the TFEU have the same legal value.
83 See above, at pt III.B.
84 In Case C-91/05, Ecowas, above n 57, the CJEU favoured the sole legal basis under the EC Treaty, development cooperation, over CFSP in spite of the fact that it concerned a measure relating to small arms and light weapons. For an analysis, see eg P Van Elsuwege, ‘On the Boundaries between the European Union’s First Pillar and Second Pillar: A Comment on the Ecowas Judgment of the European Court of Justice’ (2009) Columbia Journal of European Law 531.
85 See the interesting article by A Dashwood, ‘Mixity in the Era of the Treaty of Lisbon’ in Hillion and Koutrakos (eds), above n 19, 351–66, esp 353–55. For a contrary view in particular on the continuing use of classical EU/MS mixity, see A Rosas, ‘The Future of Mixity’, in ibid, 367–74.
86 Especially bearing in mind the difficulties exposed with classical EU/MS mixity in the cases Case C-53/96, Hermes [1998] ECR I-03603; Joined Cases C-300/98 and C-392/98, Parfums Christian Dior, [2000] ECR I-11307; and Case C-431/05, Merck II, [2007] ECR I-07001. For an analysis of those cases, see P Koutrakos, ‘Interpretation of Mixed Agreements’, in Hillion and Koutrakos (eds), above n 19, 116–37.
87 Alan Rosas points to the following paradox: ‘the absence of real legal control may render such ruminations somewhat academic; yet it remains something of a paradox that, in the less supranational CFSP field, Union agreements (which often concerns military and civilian missions in third countries) are in practice concluded by the Union alone while … many non-CFSP agreements are concluded by the EU and the Member States together (mixed agreements)’, Rosas and Armati, above n 28, 208.
88 Art 21(3) TEU.
89 Art 18(4) TEU.
90 Art 18(1) TEU.
91 Arts 18(1–3) and 27 TEU.
92 Art 18(3) TEU.
93 Art 18(2) TEU.
94 Art 27(2) TEU.
95 Art 218(3) TFEU.
96 Art 27(3) TEU, see also Declarations 13–15.
97 See Council Decision 2010/427/EU of 26 July 2010 establishing the organisation and functioning of the European External Actions Service, [2010] OJ L201/30. For a legal analysis, see B Van Vooren, ‘A Legal-institutional Perspective on the European External Action Service’, (2011) CML Rev 475.
98 Arts 17 and 18(4) TEU.
99 Art 18(4) TEU.
100 See above, at pt IV(C).
101 See Council Decision 2010/412/EU of 13 July 2010 on the conclusion of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for the purposes of the Terrorist Finance Tracking Program, (SWIFT-Agreement), [2010] OJ L195/3. For an analysis, see J Monar, ‘The Rejection of the EU-US SWIFT Interim Agreement by the European Parliament: A Historic Vote and Its Implications’ (2010) European Foreign Affairs Review 143.
102 Joined Cases C-317/04 and C-318/04, European Parliament v Council of the European Union and Commission of the European Communities, Agreement between the European Community and the United States of America—Passenger Name Records of air passengers transferred to the United States Bureau of Customs and Border Protection, [2006] ECR I-04721.
103 Case C-130/10, European Parliament v Council, action brought on 11 March 2010. The European Parliament asks the CJEU to annul Council Reg (EU) No 1286/20091 of 22 December 2009 amending Reg (EC) No 881/20022 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban; but also to order that the effects of Council Reg (EU) No 1286/2009 be maintained until it is replaced. This shows that the European Parliament takes issue only with the procedural aspects, in particular the exclusion of its participation in decision-making, whereas it essentially agrees with the measure in substance.
104 Art 15(6) TEU.
105 Art 22(1) TEU.
106 Art 4(3) TEU.
107 Art 17(1) TEU.
108 Speech by Federal Chancellor Angela Merkel at the opening ceremony of the 61st academic year of the College of Europe in Bruges on 2 November 2010, at p7, available at www.coleurope.eu/template.asp?pagename=speeches.