Summary plus additional notes on EU External Relations Law. Class was taught by editor/author of the book. Addresses chapter 1 t/m 10 + additional readings.
Week 1
Bradley – What is Foreign Relations Law (3-20)
Knop – Chapter 3: Foreign Relations Law Comparison (45-61)
The inward face of foreign relations law would equate with the generally recognized area known
as “international law in domestic legal systems” or “international law in domestic courts.” But
public international law would only inventory a subset of a state’s foreign relations issues.
Foreign relations issues can operate below international law’s radar. Public international law
overlooks domestic law issues that reflect internationalization by “policy consciousness” as
opposed to the application of international law. Public international law does not readily
generate foreign relations issues for which it merely sets the background conditions.
Anxieties
- Displacing international law
o Introducing the course of foreign relations law could displace the study of public
international law as a field
- Discounting international law
o The debate decides whether international law and domestic law are one system
(monism) or two (dualism). The field of foreign relations law is structured as a
divide between an internal realm in which law is the default and an external
realm in which foreign relations is the default.
- Distorting international law
o ?
Larik – EU Foreign Relations Law as a Field
The scholarship of EU external relations law can be divided into four periods:
- Period of emergence milestone here are the ERTA judgment of 1971 which
established that the Community acquired the power to act internationally in certain
areas as well, and in Opinion 1/75 where the ECJ rules that some of the Community’s
external powers could also be a priori exclusive without the need to adopt internal rules
first. Key topic is that of mixed agreements.
- Period of growth Maastricht Treaty of 1993 where founded the EU and two more
pillars, including the Common Foreign and Security Policy
- Period of consolidation 2008 Kadi judgment where the ECJ pronounced itself on the
primacy of EU Treaties over the UN Charter, and the Lisbon Treaty where the pillars
were absorbed into one legal personality.
- Period of seminormalization law of external relations will appear less exotic
Week 2
Wessel and Larik – Chapter 1: The EU as a Global Legal Actor (1-28)
The term entity: although the EU is not a state, it is subject to the rules of international law
when it wishes to take action on the global stage. It may be an international organization, but
,the fact that it remains exclusively competent to act in certain areas at the expense of the MS is
unprecedented. The loyalty toward the Union is believed to take precedence over international
law obligations.
The EU and its MS in the international legal order
The EU as an international actor is an umbrella term for a set of external policies, instruments
and actors across range of domains. From a legal perspective it makes no sense to distinguish
between the EU as an international organization and the MS themselves. Article 47 TEU: The
Union shall have legal personality.
The EU is based on the principle of conferred powers and states may no longer be allowed to
act once competences have been transferred.
EU external relations in the Treaties
EU and competences are based on the Treaty on European Union (TEU) and the Treaty on the
Functioning of the European Union (TFEU). The Treaties are supplemented by the Charter of
Fundamental Rights and Euratom. In the TEU the key provisions of EU external relations are
those stating the core legal principles governing all EU action (international relations, roles in
pursuing foreign policy etc) and for historic reason it also contains the rules and procedures
governing the common foreign and security policy. The TFEU states how this international
organization should function, it also contains provisions governing the relationship between the
EU and IL.
Articles 3(5) and 21 TEU mention the key external objectives of the Union. These provisions
impose substantive requirements on EU international relations by stating that there are certain
fundamental objectives which shall guide its internal and external policies, on the other hand
they also impose a strong methodological imperative: it must pursue its action through a
multilateral approach based on the rule of law.
Protocols form an integral part of the Treaty structure, they are as such equal to the TEU and
TFEU. Declarations are not legally binding, though have an important interpretative effect in
relation to the TEU or TFEU provisions to which they refer.
Introducing the key players
- The European External Action Service (EEAS) and the High Representative (HR ): idea is to
bring together policy preparation and implementation on external relations into one
new body, under the HR for Foreign Affairs and Security Policy. It is not an EU institution,
which constraints its power to legally influence EU external decision-making. It also has
no say in the Common Commercial Policy. It is functionally autonomous and separate
from the Council Secretariat and Commission, the instructions come from the office of
the HR instead. The HR represents the Union and not the collective MS. The HR is
appointed by the European Council (EC) by qualified majority voting. The HR further
assists the Council and the Commission in ensuring consistency between the different
areas of the Union’s external action and ensures compliance by the MS with their CFSP
obligations.
, - The European Council: The EC does not exercise legislative functions, yet they are
politically important for EU external relations since it is tasked with setting out the future
policy direction of EU external action. Conclusions of the EC may trigger action at all
levels of governance within the EU as an international actor and also to foreign policy
activity.
- The Council: Exercises legislative and budgetary functions and carries out policy making
and coordinating functions with the European Parliament. Similar to the European
Council, the conclusions adopted at the end of the meetings are not legally binding
instruments, but they do drive the decision-making processes that underpins EU external
action. The Foreign Affairs Council is the key configuration in the area of external action.
The Council deals with the whole of EU’s external action. COREPER I and COREPER II.
- The Commission: Is in the lead and should initiate new decisions and legislation. Given
the external dimension of most policy areas, the Commission has remained a key player.
Commission can represent the Union externally; this is only the case with non-CFSP
issues and other cases provided for in the Treaties. The Commissions competences are
defined by the principle of conferral.
- The European Parliament: Has maximized the use of its powers and has proven to be an
active player. Is regularly consulted by the HR on the main aspects and basic choices of
CFSP.
- The Court of Justice: Jurisdiction with respect to CFSP is limited. Core task of the Court
has been to decide on the delimitation of external competences between the Union and
its MS.
Thies – Chapter 2: Principles of EU External Action (29-60)
The role and development of EU principles
General principles have been acknowledged as judge-made EU law that sits below the treaties
and above secondary EU law in the hierarchy of EU norms. They include fundamental rights and
direct effect, supremacy, proportionality, sincere cooperation and state liability. The CJEU has
employed general principles to further integration and constitutionalizing of the EU’s legal
order.
Developing principles in light of objectives
The EU’s external action objectives are orientational and general rather than functional and do
not prescribe concrete end-goals to be achieved in foreign affairs. The objectives that the EU
pursues on the international scene are linked to IL principles, objectives and mechanisms. This
commitment to the international legal order poses challenges to the CJEU’s capacity to develop
and employ EU principles in the context of external action as the objectives are not exclusively
defined by the EU internal order (for which the CJEU holds jurisdiction). EU external action is
shaped by the international law obligations of the EU and its MS as well as interests of non-EU
actors.
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