Summary European Union (EU) Law Masters (LLM): Union in the World Notes
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Module
EU Law - External Relations
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Universiteit Leiden (UL)
Book
EU Law
Masters module notes on the European Union (EU) external relations law. Such law surrounds the EU's competences to conduct international treaties; trade deals and foreign relations.
Samenvatting EU Law (Book, methodology clips and cases), ISBN: 9780198856641 European Law (RGBUIER003)
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Condensed Union in the World Notes
Topic 1: Actors and Processes of EU External Action
Legal Personality:
The EU is not a State:
ICJ, Reparation for Injuries (1949) Rec. 174:
“Whereas a State possesses the totality of international rights and duties recognised by international
law, the rights and duties of an entity such as the organisation must depend upon its purposes and functions as
specified in its constituent documents and developed in practice.”
- This confirmed that under certain conditions, international organization are subject to international law.
Lisbon Art. 47 TEU states: The Union shall have legal personality.
Therefore the EU is an international actor, an entity, which interacts with third countries and international
organisations (and even its own MS) in ways, which are politically and legally distinguishable from its
constitutive MS.
The Nature of the EU as an International Actor:
In 1957, the treaty gives competence to conduct inter trade relations (CCP) and to conclude international
agreements to associate with third countries.
EU Global Ambitions
Art. 3(5) TEU
• List of objectives and tasks of the EU - internally and externally.
o Promoting it’s values and interests.
Art. 21(1)
• Guided by principles
, o Seek to develop relations and build partnerships with third countries, and international,
regional or global organisations.
Art. 21(2)
• Objectives of the EU on the International stage.
o Wide range of issues: safeguarding values --> fighting poverty
Art. 21(3)
• Union shall respect the objects in Art. 21 (2) and (3) in the implementation of EU external action.
o Not disconnected from the development of internal policies.
o Internal policies also reflect the external policies.
EU Institutional Framework:
Article 13 TEU:
1. The Union shall have an institutional framework which shall aim to promote its values, advance its
objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency,
effectiveness and continuity of its policies and actions.
...
2. Each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity
with the procedures, conditions and objectives set out in them. The institutions shall practice mutual and sincere
cooperation.
So there is a division of power within the external competence of the EU. This division of power is subject to
the respect three principles:
• Conferral
• Loyalty
• Institutional Balance
The Actors:
The Commission
Article 17(1) TEU: (...) With the exception of the common foreign and security policy, and other cases
provided for in the Treaties, it shall ensure the Union's external representation. (...)
Article 3 TFEU: In areas of shared competences both the Commission and the MS have powers of
representation in respect of their respective competences
The High Representative for Foreign Affairs and Security Policy
Art. 27(2) TEU: The High Representative shall represent the Union for matters relating to the common foreign
and security policy.
Art. 27(3) TEU: In fulfilling his mandate, the High Representative shall be assisted by a European External
Action Service.
- The instructions of the EEAS do not come from Commission or Council but directly from the HR.
- The EEAS has not been delegated powers of the EU institutions, and cannot take legally binding
decisions.
,The President of the European Council
Art. 15(6) TEU: The President of the European Council shall, at his level and in that capacity, ensure the
external representation of the Union on issues concerning its common foreign and security policy, without
prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy.
- e.g. Tusk signed the CETA agreement, which is not covered by CFSP.
- The European Council conclusions can be considered as an ‘instrument’ of EU external relations, even
if it is not legally binding.
Art. 22(1) TFEU: The European Council shall identify the strategic interest and objectives of the Union.
- It is important to note that some international agreements are only open for State and not for
international organization as such. Therefore MS sign these agreements, even if it is the competence of
the EU. In this extend, MS represent the EU.
The Member States
Article 34(1) TEU: Member States shall coordinate their actions in international organisations and at
international conferences. They shall uphold the Union's positions in such forums
- Raises some issues of loyalty on the international stage if they are not in coordination
The Council
Art. 16(6) TEU: The Foreign Affairs Council shall elaborate the Union's external action on the basis of
strategic guidelines laid down by the European Council and ensure that the Union's action is consistent.
- In general and jointly with the EP, the Council exercises legislative and budgetary functions, and also
policy-making and coordination functions.
European Parliament
Since the Lisbon Treaty the Parliament’s role has been supported by a number of innovations:
• Art 218 TFEU: EP is required to give consent for all international agreements... (§6) except when they
relate exclusively to the CFSP.
• The EP has a say on expenses related to EU external relations, in particular concerning CFSP .
• Art 17 TEU: The President, the HR and other members of the Commission shall be subject as a body
to a vote of consent of the EP.
• Generally, the EP is regularly consulted by the HR on the main aspects and basic choices of CFSP and
is informed of how those policies evolve.
• The EP is a very proactive stance. Ex: TTIP.
The Court of Justice
The Court has no jurisdiction for CFSP, except to monitor the dividing between CFSP and non-CFSP matters
laid down in Art. 40 TEU, as well as the review of legality of the external restrictive measures laid down in Art.
275 TFEU.
A main task of the Court is to decide on the delimitation of external competences between the Union and its
MS: AETR doctrine.
, The Actions:
By autonomous measures: it is measure that the EU can take on its own.
• Title V TEU: for example, sanctions which start with CFSP decision taken by unanimity of the
Council.
• Title III and IV TFEU: for example, Art. 207, which establishes the Common Commercial Policy. On
this basis, the EU can adopt trade measures, which can be autonomous such as anti-dumping measures.
Developing measures are also autonomous measures.
By contractual measures: the EU negotiate an external relations instrument with one third party or in the context
of multinational setting for the purpose of concluding international treaties. Art. 218 is the procedural basis for
contractual measure.
Procedure of Contractual Measures
Art. 218 TFEU:
Summary of the different steps:
- §2: Commission (or HR) initiates the process. It goes to the Council asking the permission to start negotiating.
At this occasion, the Commission will come with a proposition of what the negotiation mandate could be.
- §3-4: The Council must authorize the opening of negotiation. It also has to adopt the negotiating directives.
- The Commission or HR starts negotiating. During this phase, the Council can create a committee of
consultation in order to keep an eye on the Commission.
- §5: Once the negotiations are over, Commission or HR comes back to the Council, which has to decide on the
signature. As long as the agreement is not signed by the EU, it is not recognized as an instrument. At that point
the Council may decide to provisionally implement the agreement.
- §6: Then another decision has to be taken by the Council on the conclusion of that agreement. Such decision
must be taken after obtaining the consent of the EP in some cases or after the consultation of the EP in other
cases.
Regarding this procedure, it is important to note that the procedure varies:
• Depending on the subject matter (CFSP).
• Depending on internal procedural requirement.
Art. 218.11 TFEU provide a specific procedure in the context of EU external relations. It is the involvement of
the Court before the conclusion of the agreement. The possibility to ask an opinion is fundamental because once
the agreement is concluded, the CJEU does not have jurisdiction anymore. For example: Opinion 2/13 on the
accession to the ECHR.
The Distribution of Power: Case Law
Case C-327/91 France v Commission:
This makes it clear that institutions must respect the distribution of power of Art. 218 TEFU.
Facts:
The French Republic brought an action for a declaration that the Agreement signed by the Commission of the
European Communities and the Government of the United States of America regarding the application of their
competition laws (hereinafter 'the Agreement') is void.
Judgment:
19: Article 228(1) of the EEC Treaty: Subject to the powers vested in the Commission in this field,
such agreements shall be concluded by the Council, after consulting the European Parliament where required by
this Treaty.'
41: Even though the Commission has the power, internally, to take individual decisions applying the
rules of competition, a field covered by the Agreement, that internal power is not such as to alter the allocation
of powers between the Community institutions with regard to the conclusion of international agreements
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