The volume explores the marked differences between the complex and rapidly changing legal organization of EU external relations and the EU's 'internal' constitutional order.
The European Union is unique as a polity organized along federal lines but with fully-fledged States as its component political entities. The tension between the self-conscious Member States and their constitutional relationship within the EU is especially pronounced in the foreign policy field, where they remain determined to assert their status as full subjects of the international order. This book explores how foreign policy fits within the constitutional structure of the EU, characterized by the division of external relations competences between the EU and the Member States ('the vertical axis'), and between the 'pillars' of which the Union is composed, (the division between the Community competences of the first pillar and the common foreign and security competences of the second pillar ('the horizontal axis')).
This is a study of the extent to which foreign policy is legally sui generis within the sui generis constitutional order of the EU, and of how the common foreign and security policy is in turn sui generis within the foreign policy structure of the Union. It provides both an exploration of the constitutional reality of EU foreign policy and theoretical analysis which suggests possibilities for reform.
Author(s): Geert De Baere
Series: Oxford Studies in European Law
Edition: 1
Publisher: Oxford University Press
Year: 2008
Language: English
Pages: 350
Tags: Law; Constitutional law; European Union; Treaty on European Union; Constitutional law of European Union Countries; European Union countries--Foreign relations--Law and legislation; European Union countries--Defenses
Contents
General Editors’ Preface ix
Foreword xi
Acknowledgements xiii
Abbreviations xxi
Table of Cases xxiii
Table of Legal Instruments and Other Documents xxxi
Introduction 1
PART ONE: EC EXTER NA L R EL ATIONS
1. Conferral 9
1.1 Introduction 9
1.2 Explicit Attribution 11
1.2.1 Th e EC Treaty 11
1.2.2 Th e Treaty of Lisbon 15
1.3 Implied External Relations Competences 16
1.3.1 Introduction 16
1.3.2 Capacity v competence 18
1.3.3 Existence or nature 20
1.3.4 Specifi c competences 21
1.3.5 ERTA-competence 21
1.3.6 Complementarity 23
1.4 General Legal Bases in the EC Treaty and the
Existence of External Competences 29
1.5 Conclusion 31
2. Vertical Confl ict Resolution in EC External Relations:
Exclusivity and Non-exclusivity 33
2.1 Introduction 33
2.2 Confl ict Resolution in Internal Community Matters:
Direct Eff ect, Primacy and the New Legal Order 34
2.3 Confl ict Resolution in Community External Relations:
Exclusivity and Non-exclusivity 38
2.3.1 Introduction 38
2.3.2 Exclusivity 39
2.3.2.1 Th e Treaty itself grants exclusive competence:
a priori exclusivity 39xvi Contents
2.3.2.2 Exclusivity arising out of the exercise of Community
internal competence: the ERTA doctrine 43
2.3.2.3 Exclusivity arising out of internal Community
legislative acts 51
2.3.2.4 Exclusivity arising out of the fact that the
internal and external aspects of the policy area
can only be exercised eff ectively together 52
2.3.2.5 General legal bases in the EC Treaty and exclusive
external competence 58
2.3.2.6 Eff ects of exclusivity 59
2.3.3 Non-exclusivity 61
2.3.3.1 Non-exclusive competence pending exercise of
Community competence 62
2.3.3.2 Non-exclusive competence fl owing from the legal
basis for external action in the Treaty 62
2.3.3.3 Non-exclusive external competence on the basis of
internal Community minimum standards 65
2.3.3.4 Non-exclusive competence in areas where Community
and Member State competence can co-exist 67
2.4 Categories of Competence in the Treaty on the
Functioning of the European Union 67
2.4.1 Exclusive competences 68
2.4.2 Shared competences 70
2.5 Concluding Observations on Primacy and Exclusivity
in Community External Relations 71
3. Th e Community Method 73
3.1 Introduction 73
3.2 Autonomous Measures 74
3.2.1 Initiative stage 74
3.2.2 Decision-making stage 75
3.3 International Agreements 77
3.3.1 Introduction 77
3.3.2 Negotiation 79
3.3.3 Signature 83
3.3.4 Conclusion 84
3.3.5 Suspension (and termination) 89
3.3.6 Decision-making in a body set up by an
international agreement 90
3.4 Implementation Stage 91
3.5 Th e Court of Justice in Community External Relations 93
3.6 Conclusions 96xvii Contents
PA RT T WO: THE COMMON FOR EIGN A ND
SECUR IT Y POLICY
4. Th e CFSP in Contrast with EC External Relations 101
4.1 Introduction 101
4.2 Conferral 101
4.2.1 Th e EU Treaty 101
4.2.2 ‘All areas’ and the vertical and horizontal questions 106
4.2.3 Th e Constitution and the Treaty of Lisbon 108
4.3 CFSP Decision-Making Compared With the Community Method 112
4.3.1 Introduction 112
4.3.2 CFSP legal instruments for autonomous action 113
4.3.2.1 Introduction 113
4.3.2.2 Common strategies 113
4.3.2.3 Joint actions 115
4.3.2.4 Common positions 118
4.3.2.5 Sui generis instruments 119
4.3.2.6 Enforceability 122
4.3.2.7 Legal instruments for the CFSP under the Constitution
and the Treaty of Lisbon 122
4.3.2.8 Concluding remarks on CFSP legal instruments 123
4.3.3 CFSP decision-making 125
4.3.3.1 Introduction 125
4.3.3.2 An enhanced role for the European Council 125
4.3.3.3 Th e decision-making process: autonomous measures 128
4.3.3.4 Th e decision-making process: international agreements 138
4.3.4 Implementation of CFSP acts 146
4.3.4.1 General framework 146
4.3.4.2 Implementing the ESDP 150
4.4 Conclusions 157
5. Democracy and the Rule of Law in EU Foreign Policy 159
5.1 Introduction 159
5.2 Legitimacy, Accountability, and Democracy
in EU Foreign Policy 161
5.2.1 Th e European Parliament 161
5.2.2 National parliaments and EU foreign policy 167
5.2.3 Foreign policy and open government 169
5.3 Th e Rule of Law in the CFSP 176
5.3.1 Introduction 176
5.3.2 Th e Court of Justice of the European
Communities and the CFSP 177
5.3.2.1 Scope for judicial control under existing constitutional
arrangements 177
5.3.2.2 Th e Treaty of Lisbon 189xviii Contents
5.4 Conclusions 191
6. Th e Dichotomy between EC External Relations and the CFSP 201
6.1 Introduction 201
6.2 Th e CFSP and the ‘New Legal Order’ 201
6.3 Changes Proposed by the Constitution and the Treaty of Lisbon 209
6.3.1 Legal order 209
6.3.2 From Union Minister for Foreign Aff airs to High
Representative of the Union for Foreign Aff airs
and Security Policy 213
6.4 By way of Conclusion: No Salvation
without Communitarization? 219
PA RT THR EE: M A NAGING THE V ERTICA L A ND
HOR IZONTA L A X ES
7. Managing the Vertical Axis 231
7.1 Introduction 231
7.2 Mixity 231
7.2.1 Introduction 231
7.2.2 Mixed agreements 232
7.2.2.1 Negotiation 238
7.2.2.2 Signature and ratifi cation 239
7.2.2.3 Implementation and international responsibility 241
7.2.2.4 Partially mixed agreements 245
7.2.3 Mixed representation in international organizations 246
7.3 Vertical Consistency through Loyal Cooperation 250
7.3.1 Introduction 250
7.3.2 Loyalty in the Community 252
7.3.3 Loyalty in the Union 259
7.3.4 Loyalty under the Treaty of Lisbon 262
7.4 Conclusions 264
8. Managing the Horizontal Axis 267
8.1 Introduction 267
8.2 Horizontal Consistency or Divide et Impera? Th e
Relationship Between Community External
Relations and the CFSP 267xix Contents
8.3 Two Border Quarrels 274
8.3.1 Th e Yusuf and Kadi Cases 275
8.3.2 Th e Small Arms and Light Weapons Case 283
8.4 ‘Cross-Pillar Mixity’? 294
8.5 Conclusions 298
PA RT FOUR: CONCLUSIONS
Conclusions 307
Th e Constitutional Particularities of EU Foreign Policy 307
EU Foreign Policy, Identity, and Law 312
Bibliography 316
Index 333
