External Relations of the European Union – Literature Notes Week 7: Association Policy,
CFSP, and Brexit
Lecture Readings
Wessel in Wessel and Larik, Chapter 9 – Common Foreign, Security and Defence Policy (pp. 283 –
325)
I Foreign Policy as an Integral Part of EU External Relations
The CFSP emerged separate from the EEC in an incremental, pragmatic fashion in the beginning of the 1970’s. It
has developed from a more intergovernmental form of information exchange, coordination, and cooperation in
the days of the European Political Cooperation (EPC), to an EU competence in its own right and an area in
which the Member States have accepted significant forms of institutionalisation and legalisation. However, it is
the only substantive policy domain found in the TEU, whereas others are found in the TFEU. Still, Article 2(4)
TFEU, which gives the Union competence to define and implement a common foreign and security policy,
indicates that CFSP has moved beyond intergovernmentalism. However, it is not mentioned in the competence
catalogue (Articles 3-6 TFEU) but would probably come closet to a complementary or parallel competence,
though it remains unclear to what extent activities of the Union would pre-empt Member State action.
II The Nature of CFSP
A. The Position of CFSP in the Treaty
Since the entry into force of the Lisbon Treaty and the end of the ‘pillar structure’, CFSP is no
longer the ‘second pillar’, but an integral part of the single legal person that is the EU. Still, the key
differences as regards the institutional balance and the role of the CJEU in CFSP are spelled out in
Article 24 TEU, mainly concerning different voting rules, instruments, role for the institutions, and
a more limited role for the CJEU.
B. The Choice for the Correct Legal Basis
As a result of the principle of conferral, all EU action must find a legal base in the Treaties, for
which purpose the centre of gravity test is often used, though this may be problematic in the area
of CFSP. Pre-Lisbon, choices for the correct legal base were made based on former Article 47 TEU,
which provided that “nothing in [the TEU] shall affect the Treaties establishing the European
Communities”, in which regard the ECOWAS case was important. Post-Lisbon, however, Article 40
TEU reflects the current focus on coherent EU external relations and reflects the ‘centre of gravity’
test, even though it implies that EU CFSP measures are excluded once they start to interfere with
the exclusive powers of the Union. In the Smart Sanctions case, it was confirmed that different
decision-making procedures and legal instruments render combinations of CFSP and other legal
bases difficult. In the PCA with Kazakhstan case, the Court was given a chance to clarify how to
deal with decisions or agreements that cover both CFSP and other policy areas. Applying, its
centre of gravity test, it found that it was not necessary to include a CFSP basis merely because
there are CFSP elements in a certain agreement or decision. This line of reasoning is consistent
with views earlier held by the Court in Mauritius and Tanzania.
III Member State Obligations under CFSP
A. The Information and Consultation Obligation
Article 25(c) TEU provides that in the CFSP, the Union shall strengthen systematic cooperation
between member States. The concept of systematic cooperation directly builds on the system of
European Political Cooperation (EPC), in which it was agreed that the participating states
“undertake to inform and consult each other on any foreign policy matters of general interest”.
Article 32 TEU moreover emphasises that this goes for matters of foreign and security policy of
general interest, though this has not been specified by the European Council. However, since
today there are very few foreign policy issues that really do only concern a single Member State, it
may be argued that the Member States are indeed under a broader obligation to inform and
consult one another.
, B. The Loyalty Obligation
Article 24(3) TEU explicitly states that “The Member States shall support the Union’s external and
security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and shall
comply with the Union’s action in this area”. In addition, Article 4(3) lays down the more general
‘duty of sincere cooperation’.
IV CFSP Decision Making and the Role of the Institutions
A. The European Council
Under Articles 22(1) and 26(1) TEU, the European Council has a leading role in the formulation of
CFSP. Its competences in implementing CFSP are indirect: they make possible or facilitate the
decision-making by the Council and its strategic decisions form the basis for the CFSP decisions
taken by the Council. The permanent President of the European Council moreover ensures the
external representation in CFSP without prejudice to the HR under Article 15(6) TEU and may
convene extraordinary meetings under Article 26(1) TEU.
B. The Council
The Council, under Article 26(2) TEU, can be regarded as the main CFSP decision-making
institution. More specific provisions (Articles 28 and 29 TEU) stipulate that it shall adopt decisions
and (Article 24(1) that unanimity remains the form of CFPS decisions, “except where the Treaties
provide otherwise”. In practice, most CFSP decisions are adopted without any debate, as they
have been prepared by the Council’s subsidiary organs. Moreover, the Political and Security
Committee (PSC) under Article 38(1) TEU has developed into a key preparatory and implementing
organ for CFSP and CFSP.
C. The High Representative and the EEAS
Article 30(1) TEU lays down the general rule that the HR (with the Commission’s support) may
refer any question relating to CFSP to the Council and may submit to it initiatives or proposals. The
pivotal position of the HR is strengthened by the fact that the person holding the position at the
same time acts as vice-president of the Commission (Article 17(4) and (5)).
D. The European Commission
The limited formal competences of the Commission in the CFSP area have not led to the
Commission being completely passive in this field. Within the negotiating process in the Council, it
is a full negotiating partner. However, in the implementation of CFSP Decisions, its role is formally
non-existent as delegation of executive competences from the Council to the Commission is
prevented by the fact that CFSP acts are not legislative acts (Article 29 TFEU).
E. The Role of the European Parliament: A Democratic Deficit in CFSP?
Even though, under Article 26 TEU, the EP must be informed by the HR, its influence is not
directed towards a concrete decision but only towards ‘the main aspects and the basic choices’ of
CFSP. Despite its limited role, the CJEU held in Mauritius, that the CFSP context cannot form a
reason to deprive the EP of its essential democratic function.
F. The Court of Justice of the European Union
Some powers of the CJEU are excluded by Treaty provisions in order to shield the CFSP from
‘judicial activism’, as a result of which Articles 24(1) TEU and 275 TFEU seem to fully exclude the
Court’s role in CFSP. Nonetheless, the second part of Article 275 TFEU mentions two situations in
which it shall have jurisdiction, namely (1) to monitor compliance with Article 40 TEU, and (2) to
rule on proceedings under Article 263 TFEU, paragraph (4) of which gives the Court the possibility
to directly scrutinise a CFSP measure. The ‘generalist’ conception of the Court’s jurisdiction in the
area of CFSP led it to consider that its legality control over CFSP restrictive measures is not limited
to annulment proceedings envisaged in Article 263(4) TFEU but includes the possibility for it to
give a preliminary ruling on their validity, as provided in Rosneft. While this case does not perhaps
open the preliminary procedure to all kinds of CFSP questions (as it relates to economic sanctions
that were already singled out in the Treaty) recent case law points to an interesting observation,
keeping in mind the distinctive nature of CFSP: in principle, the Court’s legality control over certain
CFSP acts is similar to the one it exercises over other EU acts whenever fundamental EU rules and
principles are at state. This is further illustrated by several cases with a CFSP dimension. First, the
, Court has made clear that since international agreements in the area of CFSP are concluded on
the basis of the general provisions of Article 218 TFEU, the Court would exercise judicial control to
ensure compliance with the terms of that procedure. Second, in Elitaliana (para 49), the Court has
considered that it would have jurisdiction in the context of an EU CSDP Mission given that the
contract concerned involved an expenditure to be allocated to the EU budget, and thereby subject
to the provisions of the EU Financial Regulation. Third, the EU judicature has applied a similar
approach in H v Council and Commission (para 55).
V The CFSP Instruments
A. Informal Instruments
CFSP is often shaped based on ‘Declarations’, which are often issued on behalf of the EU by the HR
and react to world events. Although Declarations may be used for policy orientations vis-à-vis a
third state, they lack an operational framework, which ultimately calls for a formal legal act to
implement that policy.
B. Legal Acts
(i) CFSP Decisions as Legal Acts?
CFSP legal acts cannot be adopted in the form of Regulations or Directives, but only as
‘Decisions’. Article 25 TEU makes a distinction between decisions defining: (i) actions to
be undertaken by the Union; and (ii) positions to be taken by the Union, both of which
may be laid down in the form of a CFSP Decision. At the same time, Decisions can be used
for “(iii) arrangements for the implementation of the decisions referred to in points (i) and
(ii). CFSP Decisions, under Article 28(2) TEU, commit the Member States in the position
they adopt and in the conduct of their activity. Their binding nature may moreover be
derived from Article 29 TEU, which forms the legal basis for most CFSP Decisions.
However, a first possibility to depart from adopted CFSP Decisions is offered by Article
28(1) TEU and concerns a change in circumstances. The subsequent paragraphs of Article
28 TEU moreover emphasise that CFSP Decisions can only be modified or terminated by
the Council. Furthermore, paragraph (4) provides that Member States may avoid
obligations laid down in CFSP Decisions “In cases of imperative need arising from changes
in the situation and failing a review of the Council decision”.
(ii) International Agreements
Article 218 TFEU lists several modifications to the standard procedure that apply to
agreements that ‘relate exclusively to the CFSP’. These diverging procedural
requirements make it difficult for the Union to combine CFSP and other issues in one
single international agreement. At the same time, as underlined by Kazahkstan, it is
possible for international agreements to conclude CFSP elements without having to add a
CFSP legal basis.
(iii) Restrictive Measures
Restrictive measures are a combination of economic and political policies, which is
reflected by the two-step system in Article 215 TFEU: first a CFSP Decision is adopted,
providing for sanctions. This is then followed by a measure adopted by the Council,
following the procedure in Article 215. Article 75 TFEU furthermore provides for
sanctions in relation to the AFSJ, as it explicitly relates to the objectives set out in Article
67.
Case C-658/11 EP v Council (Pirate Transfer Agreement with Mauritius)
Para 81: That rule is an expression of the democratic principles on which the European Union is
founded. In particular, the Court has already stated that the Parliament’s involvement in the decision-
making process is the reflection, at EU level, of the fundamental democratic principle that the people
should participate in the exercise of power through the intermediary of a representative assembly
(see, to that effect, Case 138/79 Roquette Frères v Council EU:C:1980:249, paragraph 33, and
Parliament v Council EU:C:2012:472, paragraph 81).
