External Relations of the European Union – Literature Notes Week 3: EU external relations
law principles and the integration of international law into the EU legal order
Ott and Matera in Wessel and Larik, Chapter 3 Competences, pp.61
I Current State of Affairs in EU External Competences
A. Treaty-making Power of the European Union
International organisations such as the European Union are endowed with treaty-making capacity only
when this is conferred upon them, which is based on their constant rules. Among such rules is the
general principle of conferral, which must be observed internally and externally, as established by
COTIF, and thus limits the Union’s capacity to make treaties. This capacity is now addressed by Article
216 TFEU, which codifies a number of judgements, primarily the ERTA doctrine and thereby addresses
(1) the existence, under Article 216(1) TFEU, and (2) the nature and scope, under Article 3(2) TFEU of
the EU’s external competences.
B. The Competence Catalogue and the ERTA Codification
To the end of clarification and codification of competences, Articles 216 and 3 TFEU are
complemented by the competence catalogue in Articles 2 to 6 TFEU, which ranges these competences
from exclusive, to shared, to supporting, coordinating or supplementing. This codification served the
three aims of strengthening the EU as a global actor, preventing competence creep, and codifying case
law, though, considering the number of cases post-Lisbon, these objectives can be argued to have
failed. The recurring constitutional conflict on competences can be primarily explained by the
unfortunate and incomplete wording of Articles 216(1) and 3(2) TFEU, and by the difference in
judgements that are fundamental to these provisions. This is because the first cases on external
competences suggested a (misleading) interconnection between the existence and exclusivity of
external competences, as is visible in the ERTA case, where the Court found that the Community’s
treaty-making power flows from “the whole scheme of the Treaty” (para 15). The Court moreover
defined for the first time an exclusive competence of the Union in contrast to those of the Member
States (paras 17, 21, 22), and thereby extended the Union’s treaty-making power to any field of
internal policy and legislation, potentially leading to an exclusive competence.
In addition to the critical reception the codification of the rules on existence and nature of a
competence received by scholars, the literature perceives the competence catalogue as an unfinished
job and a mismatch between the typology and the concrete legal basis found in the respective
Chapters of the TFEU. A closer look at the competence catalogue and its categories reveal that the
clear-cut categorisation is challenged by the underlying complexity that competences are to be linked
to the respective policy field and the legal bases found in the policy chapters of the TFEU. Only one of
the a priori exclusive competences listed in Article 3(1) TFEU coincides with the policy fields presented
by the TFEU, namely the CCP (Article 207 TFEU). The other areas concern a limited field within a
broader policy chapter of the Treaty. Finally, the list of shared competences (Article 4(2) TFEU) are the
‘principal areas’ and constitute a non-exhaustive list.
II The Existence of an External Competence
Article 216(1) TFEU carves out four situations under which the Union is assigned treaty-making powers to
conclude international agreements:
A. Express External Powers Based on Primary Law
Express powers (or explicit powers) in the Treaties are legal norms which refer to the treaty-making
power of the Union in the policy chapters of the TEU and the TFEU; these powers can be exclusive or
shared. This power is thus only vested in Treaty norms that explicitly state that the EU can conclude
international agreements with third countries and international organisations (e.g. trade under Article
207 TFEU). Furthermore, some internal policy areas with an external dimension include an express
legal base to conclude international agreements (e.g. Article 79(3) on readmission). Other policy areas,
whose legal base merely refers to fostering of cooperation also provide the Union with an express
competence to conclude international agreements, but its scope of action is limited by the wording
, and nature of those competences as supporting and coordinating powers under Article 6 TFEU. Then,
it is often disputed whether Article 220 contains a mandate for the Commission and the HR to agree
on legally binding agreements with international organisations. Lastly, Article 219 TFEU covers the
conclusion of monetary agreements with third states.
B. Implied External Power Necessary to Attain Treaty Objectives
Article 216 TFEU also states “where the conclusion of an agreement is necessary in order to achieve
[…] one of the objectives referred to in the Treaties”, but this insufficiently captures the pre-Lisbon case
law. The 2002 Open Skies judgement stressed that implied powers could derive from an internal
Treaty norm upon which secondary rules have been adopted or where these internal rules are only
adopted on the occasion of the conclusion and implementation of an international agreement (para
57). This incomplete incorporation of case law has led to two misconceptions. One is the argument
that Article 216 TFEU broadens the power to act within the purpose of achieving objectives mentioned
under Article 3 TEU and Article 21 TFEU. However, these provisions differ in nature to Article 216 TFEU
as they refer generally to the objectives of the EU and of EU external action, but all of which are
reflected in a specific policy norm and concrete bases. Opinion 1/13 (Hague Convention) stresses that
a competence exists “whenever EU law creates for those institutions powers within its internal system
for the purpose of attaining a specific objective”. The second misconception is that an implied power
always results in an exclusive power. In COTIF (para 67), however, the Court underlined that the
existence of an external EU competence is not dependent on the prior Union exercise of its internal
legislative competences.
C. Provided for in a Legally Binding Act
The third option, covered by Article 216(1) TFEU, is that a legally binding act (i.e. secondary legislation)
assigns a treaty-making power to the EU, though this was already mentioned in ERTA. It should be
noted that the wording in Article 216 TFEU (“legally binding act”) is similar but not identical to the
wording in Article 3(2) TFEU (“provided in a legislative act”), the difference being that the former is
broader as it also covers CFSP decisions, i.e. legally binding acts that are not adopted based on the
legislative procedure. Legal acts which empower the Union to act can be legislative acts, legal acts
under Articles 290 and 291 TFEU and Article 25 TFEU or international agreements (adopted through a
Council Decision).
D. Likely to Affect Common Rules or Alter their Scope
This holds no separate importance in relation to the other alternatives mandating the conclusion of
international agreements. If common rules are adopted in certain fields of Union law internally, the
second condition establishing implied powers (section IIIB) is also fulfilled.
E. The Function of the Flexibility Clause, Article 352 TFEU
Pre-Lisbon, the Court acknowledged a gap-filling function under very strict conditions but denied an
exclusive power could be derived from it. The role of this norm has further diminished, and its limits
are now clearly reflected in Article 352 TFEU, as paragraph 3 clearly states that “measures based on
this Article shall not entail harmonisation of Member States’ laws or regulations in cases where the
Treaties exclude such harmonisation”.
III The Nature and Scope of EU External Competences: The Question of Exclusivity
Article 3(1) lists the areas in which the Union has internal as well as external exclusivity and only the Union can
legislate and conclude international agreements. Thus, the customs union and monetary policy are exclusive
based on primary law, though competition (under Article 3(1)(b) TFEU) is only exclusive in so far as it is
necessary for the functioning of the internal market. Exclusivity does not entail that the Member States are
fully excluded from acting, as the Union can empower the Member States to act in an area of exclusive
competence (Article 2(1) TFEU). Article 3(2) then establishes three abstract conditions under which an area can
become exclusive:
A. Provided for in a Legislative Act
The condition “provided in a legislative act” was for the first time taken up in Opinion 1/94 on the
accession of the Community to the WTO. Whenever the Union has included “in its internal legislative
acts provisions relating to the treatment of nationals of non-member countries or expressly conferred
, on its institutions powers to negotiate with non-member countries, it acquires exclusive external
competence in the spheres covered by those acts” (para 95).
B. Necessary to Enable to Exercise its Internal Competence
This condition decisively connected to exclusivity in the past case law, where the necessity to exclude
the individual action of the Member States was related to the situation that it either concerned the
common policy or the unity of the internal market. Hence, the area was largely covered by EU rules or
completely harmonised.
C. Affecting Common Rules or Altering their Scope
The Court established early on in its case law that the adoption of common rules prevents Member
States from acting collectively or individually. Exclusivity is, however, also established if the EU adopts
within a certain policy or parts of it, particular rules which result in harmonisation (Lugano Convention,
paras 116-118). The question of whether common rules only equate internal secondary EU rules or
could also refer to EU international agreements or primary law has been settled by the Singapore
Opinion, where it was established that “[international agreements] cannot ‘affect’ rules of primary EU
law or ‘alter their scope’, within the meaning of Article 3(2) TFEU”.
In sum, in establishing exclusivity, the following two aspects find consideration:
A risk assessment of whether common rules are affected by the Member States’ international
commitments or whether the risk exists that EU rules are altered by those Member State
commitments;
To determine this risk and define the scope of analysis, a comparison needs to be drawn between
the EU’s envisaged international agreement field of application and existing or foreseeable EU
secondary rules.
IV The Choice of a Legal Basis and the Scope of Specific Policies
The extent of the EU’s competences in external action depends on the areas covered in the policies chapters.
Article 216 TFEU does offer a general competence for the EU to conclude international agreements, but a
concrete and substantive legal basis is still required in line with the principle of conferral (Article 5 TEU).
A. The Criteria for the Choice of a Legal Basis
In the case of the conclusion of international agreements, the detailed procedure is found in Article
218(6) TFEU. The Court has developed two criteria for determining the correct legal basis when a
legislative act is enacted, namely (1) that it is necessary to identify the main aim and content of the
measure at hand, and (2) that exceptionally two or more legal baes con be combined, provided that
several objectives are inseparably linked, no hierarchy between the norms exists, and they are
compatible in their respective legislative procedure. For international agreements, the Court has
moreover added in the Tanzania case that the context of the agreement must be considered (paras
48-50)
(i) Identifying the Centre of Gravity: An Objective Test Amenable to Legal Review?
According to case law, the centre of gravity test implies that if one policy is predominant and
the other incidental, the choice will be made for the predominant norm (Case C-338/01
Commission v Council, paras 54-55).
(ii) Several Legal Bases
The compatibility of several legal baes is assessed on the basis of the respective legal base in
the Treaty norms and the procedures indicated in Article 218(6) and (8) TFEU, as these
determine the voting procedure in the Council and the participation of the EP for a legislative
act or an international agreement. However, it is not clear whether both procedural
conditions must be in line with each other or one incompatibility can be reconciled when
more than one legal basis is chosen. Pre-Lisbon, it was undisputed that it was incompatible to
combine procedures deriving from the different EU ‘pillars’. In the Smart Sanctions case, the
Court for the first time addressed the question of procedures under CFSP and TFEU legal
bases under the current TFEU and TEU for a unilateral act and concluded on their
incompatibility. In contrast, for international agreements, Article 218(6) TFEU reveals one
treaty-making procedure only.
