External Relations of the European Union – Complete Summary
Week 1 – EU External Representation, EU Actors and Treaty-Making Powers
Lecture 1 – EU External Representation, EU Actors and Treaty-making Powers
Evolution of EU External Relations
1957 Treaty of Rome (establishing the European Economic Community (EEC))
o Under the Rome Treaty, the EEC was explicitly given the competence to conduct international
trade relations through its Common Commercial Policy (CCP) and to conclude international
agreements with third states. It furthermore proposed the creation of a customs union. The
EEC was moreover active in the fields of development and association, which were part of its
external action from the very beginning.
o The EEC Treaty, however, only allowed for a ‘piecemeal’ approach to external action, as this
was solely based on rudimentary provisions and the treaty only provided the EEC with a
limited number of explicit external competences.
From the 1986 Single European Act (SEA) to the 2001 Nice Treaty
o The SEA introduced the European Political Cooperation that would later become the CFSP.
The 1992 Maastricht Treaty then transformed this into a ‘pillar’ (though Lisbon would
‘depillarise’ this) and introduced new treaty-making instruments, which led to the bipolarity
between intergovernmentalism and supranationalism in the EU’s external action.
o The Amsterdam and Nice Treaties then treaty provisions and codified the case law on trade.
2004 Draft Constitutional Treaty
o The Constitutional Treaty was supposed to prepare the Union for enlargement and increase
the coherence and visibility. It moreover set up a Convention on the Future that was to clarify
the principles and objectives of EU external action and enhance its efficiency.
2007 Lisbon Treaty
o Lisbon provided the Union with international legal personality under Article 47 TEU and
codified the case law on its (external) competences in Article 3 TFEU, paragraph (2) of which
may be considered the codification of the ERTA doctrine (see week 2).
o Furthermore, treaty-making provisions were combined in a section on external action in the
TFEU (Articles 216-219 TFEU).
o Next, Article 21 TEU and Article 205 TFEU, which refers to the former article, contained the
principles and objectives of the Union in its external action, including the consistency of such
action.
o Finally, despite the ‘depillarisation’, the CFSP was to kept separate in the TEU (see Article 24
and 40 TEU), as opposed to other policy areas that were moved to the TFEU.
Article 24 TEU states that and outlines how the CFSP is subject to specific rules and
procedures.
Article 40 TEU (pre-Lisbon Article 47) was complemented a second paragraph, under
which the implementation of integrated policies should not affect CFSP-action. It
thereby put CFSP and non-CFSP policies on an equal footing, which is different from
its pre-Lisbon version, which provided for a hierarchy between the two areas (see
also ECOWAS case (week 5).
o One may question, however, whether Lisbon’s endeavour to create coherence in the EU’s
external action has been successful
It may be argued that it was indeed successful, given that the Union now has one
legal personality under Article 47 TEU, there is one treaty-making norm under Article
218 TFEU. Articles 3 and 21 TEU furthermore contains general objectives for the
entire policy area, and the HR, together with the EEAS, now has the objective of
ensuring consistency in this area.
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, However, EU external action is still based on two treaties. Furthermore, CFSP, under
Articles 24(1) TEU, is subject to special rules and procedures and, under Article 40
TEU, is kept separate from non-CFSP areas. This is reflected by Article 215 TFEU on
sanctions, as this requires first a CFSP-decision, which can only then be implemented
by a ‘TFEU’-measure.
EU External Representation -> who acts and how is the procedure to be determined?
Does it concern the conclusion of international agreements? -> If yes, see Article 218 TFEU procedure:
o Para (2): The Council authorises the opening of negotiations and the signing and conclusion of
agreements;
o Para (3): The Commission or the HR may submit recommendations to the Council when the
agreement relates “exclusively or principally to the [CFSP]”:
If the agreement relates exclusively to CFSP, the HR negotiates
If the agreement relates principally to CFSP, the Commission negotiates
Whether an agreement relates exclusively or principally to CFSP is often decided
through the centre of gravity test, as proposed by the EP in the Tanzania case. In
practice, however, the HR and the Commission will negotiate collectively.
o Para (6)(a): The EP must consent to a number of types of agreements;
o Para (10): the EP must be informed throughout the process.
In case of soft law, i.e. ‘Non-Treaties’ and ‘arrangements’:
o Article 17 TEU: The Commission ensures the Union’s external representation “With the
exception of the common foreign and security policy, and other cases provided for in the
Treaties”. -> “other cases” may refer to Article 218 TFEU;
o Article 16 TEU: The Council carries out “policy-making and coordinating functions as laid
down in the Treaties”;
o Article 218(4) TEU: The HR must ensure the consistency of the Union’s external action;
o Article 220 TFEU: The HR and the Commission implement relations with organs of the UN,
CoE, etc.
Tutorial 1 – EU Actors and EU External Representation (Treaties and Non-Treaty Arrangements)
1) The Lisbon Treaty: main changes in the field of EU external action
First, the Lisbon Treaty has streamlined the objectives and principles of the Union’s external action in
Articles 3(5) and 21 TEU;
The EU has been given one international legal personality (as its legal personality pre-Lisbon was
disputed) under Article 47 TEU;
The TFEU has gained a Title on external action (Title Five), which brings together the external relations
policies of the CCP (Articles 206-207 TFEU), cooperation with third countries and humanitarian aid
(Articles 208-214 TFEU), restrictive measures (Article 215 TFEU), international agreements (Article 216-
219 TFEU), relations with international organisations and third countries and Union delegations
(Articles 220-221 TFEU), and a solidarity clause (Article 222 TFEU);
The competences of the Union vis-à-vis the Member States have been codified under Articles 3-6 TFEU.
This includes codification of the ERTA doctrine in Article 3(2) TFEU, pursuant to which the Union has an
exclusive competence to conclude international agreements when a legislative act enables the Union
to do so or when it is necessary for the Union to exercise its internal competence, or if such a
conclusion may affect common rules or alter their scope;
Lisbon has furthermore ‘depillarised’ the Treaties, meaning that all external policies, except CFSP, have
been moved to the TFEU. CFSP is still intergovernmental, as highlighted by Article 24 TEU, as it does
not allow for QMV or legal review by the CJEU, and the Commission and the EP only have limited roles.
Moreover, Article 40 TEU, the so-called ‘non contamination clause’, does not allow for ‘spillover’
between the fields of intergovernmentalism and supranationalism.
EU external action has been made more coherent under Article 21(3) TEU, which provides for
consistency between the areas of the Union’s external action and for cooperation between the
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, Union’s external relations actors. This is complemented by Article 218 TFEU, which sets out a single
procedure for the negotiation and conclusion of agreements with third states. This is moreover
reflected by Article 27 on the HR, as it provides that (s)he they only chair the Foreign Affairs Council,
but also implements the decisions adopted by the Council and the European Council. Important is also
the role of the EEAS and the fact that the TEU and the TFEU in Articles 1 TEU and TFEU are of the same
legal value.
Finally, Lisbon made a number of institutional changes:
o The HR, under Articles 18 and 27 TFEU, is responsible for coordinating the Union’s external
action policies, and is now also the Vice President of the Commission. The EEAS, though not
created by Lisbon itself but by Decision 201/427/EU, supports the HR, as provided by Article
27(3) TEU, and has the task of bridging the gap between the Commission and the Council, and
to coordinate CFSP and non-CFSP measures, and thereby contribute to the coherence of EU
external action,
o The President of the European Council, pursuant to Article 15(5) TEU, ensures the
representation of the Union on issues concerning CFSP, but only “at his level” and “without
prejudice to the powers of the High Representative”,
o Concerning the EP, Lisbon established that it must consent to almost all international
agreements (Article 218(6) TFEU) and to the MFF, which includes expenses related to EU
external action. It must furthermore approve of the HR and the other members of the
Commission (Article 17(7) TEU, and it must be consulted on the main aspects and basic
choices of the CFSP (Article 26 TEU).
2) The coherence of EU external action post-Lisbon
One may argue that Lisbon has created one legal personality for the Union and one EU external
relations policy. In favour of this statement speak Articles 21, 3(5), and 27 TEU, and Article 218 TFEU.
Articles 21(3) and 27 TEU provide for consistency between the areas of the Union’s external action and
for cooperation between the Union’s external relations actors (the Council, Commission, and the High
Representative). Article 3(5) TEU then reflects this unity by referring to one single set of common
values of the Union. Finally, Article 218 TFEU sets out a single procedure for the negotiation and
conclusion of agreements with third states.
Against this statement, however, speak, first of all, the fact that there are still two different Treaties,
which, under Articles 1 TEU and 1 TFEU, are to be of the same legal value. Furthermore, Article 40
TEU, which is often referred to as the ‘non-contamination clause’, does not allow for ‘spillover’
between the fields of intergovernmentalism and supranationalism. Paragraph (2) in particular ensures
that the implementation of integrated policies should not affect CFSP-action and thereby puts CFSP
and non-CFSP policies on the same legal level. Moreover, Article 24(1) allocates a special role and
specific rules and procedures to CFSP. This division between CFSP and non-CFSP policies is further
reflected by Article 17(1) TEU, which allows the Commission to represent the EU externally except in
the area of CFSP. One could argue instead that the current system is rather characterized by ‘sectoral’
external representation.
3) The EU and the Vienna Convention on the Law of Treaties (VCLT)
The EU is not bound by the 1969 VCLT because, under its Article 2(1), that Convention is addressed to
States only, and since the EU is not a State, it cannot be considered to be bound by it. This might
nonetheless be solved by the 1986 Vienna Convention, Article 1(a) defines a treaty as an international
agreement governed by international law and concluded in written form, either between one or more
states and one more international organisations, or between international organisations. Still, this
latter VCLT has not yet entered into force, as it requires the ratification of 35 states and so far, only 32
states and 12 non-state actors have ratified it, among which are only a limited number of EU Member
States, but ratification by the EU is still lacking.
Nevertheless, the CJEU has decided that most of the VCLT is to be considered international custom
(see Racke judgement (Week 3)), for which reason the EU is still bound by a number of its provisions.
Still, international agreements to which the Union is a party remains binding on it, considering that
Articles 27 and 46 VCLT provide that a party may not invoke provisions of internal law or violations of
its internal law as justification for its failure to perform a treaty, except where that “violation was
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