External Relations of the European Union – Literature Notes Week 1: EU External
Representation, EU actors, and treaty-making powers
J. Larik and R.A.Wessel (eds.), Chapter 1: The European Union as a Global Legal Actor (pp. 1-26)
I The Nature of the European Union as an International Actor
A. An International Organisation or Something Else?
The EU is an international actor with a distinct legal existence akin to its Member States or other
international organisations, rooted in the 1957 Rome Treaty establishing the EEC, under which it was
explicitly given competence to conduct international trade relations through its Common Commercial
Policy and to conclude international agreements with third states. We define the EU as an
international actor in abstract terms as an entity which interacts with third countries and international
organisations (and even its own Member States), in ways which are legally and politically
distinguishable from its constitutive Member States. In the global context, this entity thus has a stand-
alone identity composed of values, interests, and policies which it seeks to define and promote
internationally as its own. The EU is moreover a legal international actor, meaning that it is subject to
the rules of international law.
The EU is often characterised as an international organisation. However, as Bengoetxea notes, it must
be a special one, not because of the high degree of ‘constitutional’ development, supranational
components and the rule of law features within this organisation making it look almost like a
federation of states. Indeed, it may be an international organisation, but the fact that it is exclusively
competent to act in certain areas – at the expense of its own Member States – is unprecedented.
Furthermore, as underlined by case law, the Member States’ loyalty towards the Union is believed to
take precedence over international law obligations.
B. The EU and its Member States in the International Legal Order
The above discussion points to the core difficulty of EU external relations: who represents the
‘European interest’ on the international scene – the EU or its Member States? From a legal
perspective, it makes sense to continue to distinguish between the European Union as an international
organisation of which states can be members, and the (Member) States themselves. In this sense, the
EU is clearly more than merely a collection of states, as it has express legal personality (accorded to it
by Article 47 TEU) and capacity to act in the international legal order. However, the EU can only act
where its Member States have given it the competence to do so (conferral of powers), as a
consequence of which the Member States have to a certain degree a prominent role in the formation
and execution of international action in the relevant area.
II EU External Relations in the Treaties
A. A Tale of Two Treaties
The EU and its competences are based on the TEU and the TFEU. The TEU is considered the framework
treaty, as it sets out the most fundamental legal properties of the EU. The TFEU, in comparison,
‘fleshes out’ the functioning of this international organisation.
B. Values and Objectives
The key external objectives of the EU are mentioned in Articles 3(5) and 21 TEU. The former provides
that the EU shall uphold and promote its values and interests in the world, as well as protect its
citizens and contribute to peace, security, and the sustainable development of the earth. The latter
then, in paragraph (1) provides that the EU shall be guided by democracy, the rule of law, and
fundamental rights. In order to do so, it shall, under paragraph (2), define and pursue common policies
and actions and work for a high degree of cooperation in all fields in international relations.
These articles give a double response to the question as to what kind of international actor the EU is
and how it relates to the international order. On the one hand, they impose substantive requirements
on EU international relations by stating that there are certain fundamental objections which shall
guide its internal and external policies. On the other, these provisions also impose a strong
methodological imperative upon EU international action: it must pursue its action through a
, multilateral approach based on the rue of law. It is then also clear that the scope of objectives which
EU action must pursue is extraordinarily broad. As Larik notes, “the EU Treaties codify a range of
global objectives both in terms of substance but also specifically harnessing law [which together]
coincide with the idea of the Union as a ‘transformative power’, chaning not only fundamentally the
relations among its members but also of the world around it”.
C. Protocols and Declarations
Attached to the Treaties are a number of binding Protocols, of which a number are directly or
indirectly relevant to EU external relations, though these shall be discussed in subsequent chapters.
III Introducing the Key Players
A. The European External Action Service and the High Representative
Article 27 TEU provides that the High Representative shall chair the Foreign Affairs Council, represent
the Union in matters relating to CFSP, and be assisted by the EEAS, which was formally established by
Council Decision 201/427/EU in 2010 and was officially launched in January 2011. The position of the
Union as an autonomous international actor developed as a piecemeal construction of political and
legal developments pushed forward by geopolitical and socio-economic stimuli, such as events in the
Middle East and the collapse of the USSR. The EEAS, then, is a continuation of that process: a new
institutional structure set up against a decades-old struggle of the Union seeking to project a strong,
coherent voice on the international scene, counterbalanced by the Member States; wish to retain
control over various aspects of international relations. The High Representative moreover has the
‘triple hats’ of also being vice-President of the Commission and Chairperson of the Foreign Affairs
Council (article 18 TEU), which is hoped to attain consistency in EU external relations (Article 21(3)
TEU). It should be noted, however, that the EEAS is not an EU institution, which significantly constrains
its power to legally influence EU external decision-making, and that it has no say in the Common
Commercial Policy.
The aforementioned Council Decision from 2010 contains a number of important provisions:
In its preamble, it reaffirms that coherence remains the final objective of the EEAS;
Article 2 states that it supports the High Representative and assists the Presidents of the
European Council and of the Commission, and the Commission itself, in the exercise of their
respective actions in the area of external relations;
Article 1(2) provides that the EEAS “shall be a functionally autonomous body”, separate from the
General Secretariat of the Council and from the Commission with the “legal capacity necessary to
perform its tasks and attain its objectives”. These notions should be interpreted as meaning that
in supporting the High Representative, the EU diplomatic service does not take instructions from
either the Council or the Commission, but from the office of the High Representative, who is
accountable to the EU institutions, notably also the EP;
Article 3 on the duty of cooperation is exemplary of the carefully crafted new institutional balance
in EU external relations. The legal obligations of cooperation are strongest with the Commission,
while relations with the Council and its ‘normal tasks’ are less clear. Accountability to the EP is less
extensive but will have to be given form and substance in practice.
Since the Lisbon Treaty, the High Representative has also been the Vice President of the Commission,
and the title was changed to better reflect the fact that they represent the Union and not the
(collective) Member States. The HR is appointed by the European Council (with the agreement of the
President of the Commission) by QMV. Furthermore, the HR’s de facto membership of the European
Council is codified in Article 15 TEU, which states that they take part in the work of the European
Council.
B. The European Council
Under Article 22(1) TEU, the European Council identifies the strategic interests and objectives of the
Union. This it does through the adoption of ‘conclusions’ which may be considered instruments of EU
external relations, though they are not listed in Article 288 TFEU and are thus not legally binding, as
the European Council, under Article 15(1) TEU does not exercise legislative functions. Finally, Article
