External Relations of the European Union (IER4003)
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Summary External Relations of the European Union - Literature Summaries week 5
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External Relations of the European Union (IER4003)
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Maastricht University (UM)
Summaries of the readings for External Relations of the European Union week 5:
- M. Broberg in Wessel and Larik, Chapter 8, pp.247;
- Portugal v. Council, Case C-268/94;
- Case C-377/12, Commission v. Council (PCA with the Philippines), ECLI:EU:C:2014:1903ECOWAS;
- European Parliament v. Council, C...
External Relations of the European Union (IER4003)
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External Relations of the European Union – Literature Notes Week 5: EU Development
Policy
M. Broberg in Wessel and Larik, Chapter 8, pp.247
I The Three C’s of EU Development Policy: Complementary, Coherent and Coordinated
The essential features of EU development policy are traditionally captured in three ‘C’s:
Complementarity: Article 208(1) TFEU expresses that EU and Member State competences shall
complement and reinforce each other. This provision is closely linked to Article 4(4) TFEU which states
that in the areas of development cooperation and humanitarian aid, the Union competence
complements that of the Member States.
Coherence: Article 208(1) and (2) TFEU both express the need for coherence in different ways: it makes
a link to the general principles and objectives of EU external action, and paragraph (2) requires that
the EU and its Member States “shall” take account of objectives approved at the UN and other
competent international organisations.
Coordination: Article 210 TFEU lays down the obligation of coordination between the EU and Member
States in the implementation of their development policies, with a specific right of initiative for the
Commission to attain this objective.
The objectives of EU development policy are explicit in the second indent of Article 208(1) TFEU, which states
that the primary objective is to reduce and, in the long term eradicate, poverty.
II A Brief History of EU Development Policy
A. A Succession of Treaties and Conventions: Rome, over Yaoundé, to Lomé and Cotonou
The 1950 Schuman Declaration stated that one of the essential tasks of the Community would be the
development of the African continent. The 1957 Rome Treaty furthermore viewed France and its
colonies as a cultural unity and stated that one of the activities of the Community was “the association
of the overseas countries and territories in order to increase trade and promote jointly economic and
social development”. Then, after most African countries had gained independence, the first and
second Yaoundé Conventions were based on two fundamental principles: free trade and financial and
technical cooperation. The two Yaoundé Conventions were subsequently replaced by four consecutive
Lomé conventions which, like Yaoundé, were concluded as mixed agreements. Between Lomé I and II
little changed, but a notable shift occurred in Lomé III and IV: the incorporation of human rights into
EEC relations with the ACP countries, and a general broadening of development cooperation beyond
trade and aid. Finally, the Cotonou agreement entailed significant changes in a number of areas.
B. Complementarity of EU Development Policy: Position of the Member States
Under Article 4(4) TFEU, the Union, in the area of development and humanitarian aid, has a non-pre-
emptive and complementary shared competence. However, in contrast to another such competence
in Article 4(3) TFEU, this indicates that the EU can develop a “common policy and carry out activities”,
whereas the other only points to “carrying out activities”. In both cases, however, it is indicated that
“the exercise of that competence shall not result in Member States being prevented from exercising
theirs”.
III Coherence in EU Development Policy: Evolving Scope and Links with other Policies
A. ‘Policy Coherence for Development’: Legal and Policy Dimensions
In development cooperation, coherence has significant legal and political implications. The principle
has a firm footing in Article 208(1) TFEU, according to which there are three distinct aspects to
coherence in this policy area. First, coherence of EU development cooperation with the more general
principles and objectives of EU external relations (i.e. Article 21 TEU); second, poverty reduction as the
primary policy objective; third, the obligation to take account of development objectives in other
policies which are likely to affect developing countries. These legal obligations attract regular and
significant attention in EU policy making through the process called ‘Policy Coherence for
Development’ (PCD)’.
, B. EU Development Policy and Human Rights Conditionality
In the succession of treaties from Yaoundé over Lomé to Cotonou, a progressive dynamic of
politicisation and broadening the scope of the agreements beyond aid and trade has taken place with
the inclusion of human rights. This treaty-based obligation served as foundation to the Commission’s
efforts to elevate the respect for human rights by the parties to its international agreements to an
essential element of that agreement under Article 60(3)(b) VCLT. This essentially provides that, if a
developing country breaches a human rights clause in a treaty with the EU and this clause is an
‘essential element’ of that treaty, the EU is empowered to terminate or suspend whole parts of the
agreement. Human rights have therefore become a ‘conditionality’ for EU trade and association
agreements, leading to the question of whether the EU pursued a de facto ‘external human rights
policy’. The inclusion of such essential element clauses in agreements which could be used to suspend
the other provisions gave rise to the 1994 Portugal v Council case.
C. The Relationship Between Development and Security Policy
Stabilising or preventing armed conflict in neighbouring countries in the short term is commonly
addressed through the EU’s CFSP, whereas longer-term socio-economic development falls within the
realm of Article 208 TFEU, which raises the question of to what extent security initiatives fall within
the scope of EU development competence. In the pre-Lisbon cases of Philippine Border Mission and
ECOWAS, the CJEU confirmed that development cooperation has developed to a broad policy field
which meant that security-oriented measures could also be adopted by the Union under its
development competence, as long as they were focused on the socio-economic objectives of EU
development policy, in particular the eradication of poverty. In the ECOWAS judgement, the Court was
faced with having to establish the scope of EU development policy. It found that a concrete measure
aiming to combat the proliferation of small arms and light weapons may be adopted by the Union
under its development cooperation competence, if that measure by virtue both of its aim and its
content falls within the socio-economic objectives of development policy and it does not pursue and
security objective in itself (para 71).
IV Vertical and Horizontal Coordination in EU Development Policy
A. Introduction
Complementarity and coherence in practice requires coordination between all actors involved. We will
examine the vertical and horizontal dimensions by looking at the way EU development policy is
financed and implemented in practice.
B. Multi-Track Financing of Development Cooperation: EDF and EU Budget
The New European Consensus on Development provides for three dominant streams of development
assistance that make up European development cooperation: funds from the EU budget disbursed in
accordance with EU development policy priorities (Article 208 TFEU); funds from the Member State
budgets which are pooled in a ‘European Development Fund’ (EDF) and disbursed in accordance with
the priorities jointly agreed in the Cotonou Agreement with the ACP countries.
C. Executing EU Development Policy: Commission and EEAS
The process of EU development policymaking encompasses three phases: (1) management, (2)
programming, and (3) implementing EU development policy. Pre-Lisbon, the Commission oversaw this
process but post-Lisbon, a complex division of tasks exists between the EEAS and the Commission.
Portugal v. Council, Case C-268/94
Case facts
Portugal argued that the EC-India Partnership and Development Agreement, which had been founded on trade
and development legal bases, required the inclusion of the flexibility clause (current Article 352 TFEU) because
the development competence allegedly did not suffice to support the inclusion of human rights as an essential
element of that agreement. Portugal considered that respect for human rights could at most be a general
objective of the cooperation agreement if based on the development competence alone. Conversely, the
Council argued that action could be taken without using the flexibility clause provision. The Court sided with
the Council, drawing on an argument that reflects the coherence rationale of EU development policy as
, embedded in the Treaties. The fact that respect for human rights in development must be “taken into account”
(in current Article 208(1) TFEU) entails that it is possible for the EU to give substantive meaning to that
provision without needing recourse to the flexibility clause.
Judgement of the Court
Para 23: By declaring that `Community policy (...) shall contribute to the general objective of
developing and consolidating democracy and the rule of law, and to that of respecting human rights
and fundamental freedoms', [current Article 21 TEU] requires the Community to take account of the
objective of respect for human rights when it adopts measures in the field of development
cooperation.
Para 24: The mere fact that Article 1(1) of the Agreement provides that respect for human rights and
democratic principles `constitutes an essential element' of the Agreement does not justify the
conclusion that that provision goes beyond the objective stated in [current Article 208 TFEU] of the
Treaty. The very wording of the latter provision demonstrates the importance to be attached to
respect for human rights and democratic principles, so that, amongst other things, development
cooperation policy must be adapted to the requirement of respect for those rights and principles.
Para 29: It must therefore be held that, so far as Article 1(1) of the Agreement is concerned, the
contested decision could be validly based on Article 130y.
Case C-377/12, Commission v. Council (PCA with the Philippines), ECLI:EU:C:2014:1903ECOWAS
Case facts
This case concerned a Council decision to sign the Partnership and Cooperation Agreement (PCA) with the
Philippines. The problem here was that the Council had erroneously used a number of legal baes in addition to
the development cooperation legal basis of Article 209 TFEU and the CCP legal basis of Article 207 TFEU. It had
done so because the provisions in this PCA on the readmission of third-country nationals encompass
obligations and thus go beyond mere cooperation in this field. The Commission disagreed, however,
considering that the PCA should have been signed on the legal bases of Articles 207 and 209 TFEU, and
therefore brought an action for annulment before the Court. The main source of contention between the
institutions, therefore, was whether a number of provisions fell within the scope of the policy of development
cooperation.
Judgement of the Court
Para 35: In this instance, it must be determined [pursuant to the centre of gravity test, repeated in
para 34] whether, among the provisions of the Framework Agreement, those relating to readmission
of nationals of the contracting parties, to transport and to the environment also fall within
development cooperation policy or whether they go beyond the framework of that policy and
therefore require the contested decision to be founded on additional legal bases.
o Para 36: (…) For implementation of [development policy under Article 208 TFEU], Article 209
TFEU, upon which, inter alia, the contested decision is founded in particular, in paragraph 2,
that the European Union may conclude with third countries and competent international
organisations any agreement helping to achieve the objectives referred to in Article 21 TEU
and Article 208 TFEU.
o Para 37: It follows that European Union policy in the field of development cooperation is not
limited to measures directly aimed at the eradication of poverty (…)
Para 38: For the purpose of establishing whether certain provisions of a cooperation agreement (…)
did indeed fall within development cooperation policy, the Court found in paragraphs 37 and 38 of
Portugal v Council (…) that, in order to qualify as a development cooperation agreement, an
agreement must pursue the objectives of that policy, that those are broad objectives in the sense that
it must be possible for the measures required for their pursuit to concern a variety of specific matters,
and that that is so in particular in the case of an agreement establishing the framework of such
cooperation. It added that to require a development cooperation agreement to be based on another
provision as well as on the provision relating to that policy whenever the agreement touches on a
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