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Common Foreign and Security Policy and the EU’s external action objectives: an analysis of Article 21 of the Treaty on the European Union

Published online by Cambridge University Press:  24 September 2018

Luigi Lonardo
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Abstract

Boundaries within EU policies – Common Foreign and Security Policy – EU external relations – Management of boundaries – Institutional interpretation – External action objectives – Linking policies to objectives – Restrictive measures – Area of Freedom Security and Justice – Securitisation of migration – Energy policy – Development – Multilateral diplomacy – Global strategy

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Articles
Information
European Constitutional Law Review , Volume 14 , Issue 3 , September 2018 , pp. 584 - 608
Copyright
© The Authors 2018 

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Footnotes

*

PhD Candidate, King’s College London. The author is grateful to Professor Takis Tridimas for the insightful discussion and suggestions, and to Professor Panos Koutrakos and the anonymous reviewers for their comments.

References

1 Mostly regulated in Part Five of TFEU. This encompasses a number of competences but will be referred to, collectively, in the rest of this article as the ‘TFEU competence’.

2 Art. 24 TEU. CFSP decision-making mostly follows the unanimity rule in the Council. The Parliament plays hardly any role and the adoption of legislative acts is excluded. On the ‘distinctiveness’ of CFSP see Wessel, R.A. The European Union’s Foreign and Security Policy. A Legal Institutional Perspective (Kluwer Law 1999);Google Scholar more recently Opinion of AG Wahl in ECJ 19 July 2016, ECLI:EU:C:2016:212, H v Council of the European Union, paras. 38 and 45, and other works mentioned throughout the article.

3 Art. 24 TEU, emphasis added.

4 They are defined singulatim, one by one. The phrase ‘external action’ is used in Chapter 1 of Title V TEU and in Part V of the TFEU to list all external relations competences including CFSP. Art. 2 TFEU divides all EU competences into five categories: exclusive; shared; coordinating and supporting; coordinating and supplementing; and CFSP.

5 A. Dashwood, ‘The Continuing Bipolarity of EU External Action’, in I. Govaere et al. (eds.), The European Union in the World: Essays in Honour of Marc Maresceau (Nijhoff 2013) p. 1.

6 Wessel, R.A. ‘The Dynamics of the European Union Legal Order: An Increasingly Coherent Framework of Action and Interpretation’, 1 EuConst (2009) p. 117 Google Scholar; Wessel, R.A. ‘ Lex Imperfecta: Law and Integration in European Foreign and Security Policy’, 2 European Papers: A Journal on Law and Integration (2016) p. 439 Google Scholar

7 Among many: T. Bickerton, European Integration. From Nation States to Member States (Oxford University Press 2013).

8 J. Larik, Foreign Policy Objectives in European Constitutional Law (Oxford University Press 2016) 72.

9 Cardwell, P.J. ‘On “Ring-Fencing” the Common Foreign and Security Policy in the Legal Order of the European Union’, 64(4) Northern Ireland Legal Quarterly (2015) p. 443–463 Google Scholar

10 The literature is extensive: see e.g. Govaere, I. ‘Multi-faceted Single Legal Personality and a Hidden Horizontal Pillar: EU External Relations Post-Lisbon’, 13 Cambridge Yearbook of European Legal Studies (2011) p. 87 at p. 112CrossRefGoogle Scholar; Van Vooren, B. ‘The Small Arms Judgment in an Age of Constitutional Turmoil’, 14(2) European Foreign Affairs Review (2009) p. 231;Google Scholar Van Elsuwege, P. ‘The Potential for Inter-Institutional Conflicts before the Court of Justice: Impact of the Lisbon Treaty’, in M. Cremona and A. Thies (eds.), The European Court of Justice and External Relations Law: Constitutional Challenges (Hart 2014 Google Scholar); Butler, G. ‘Pinpointing the Appropriate Legal Basis for External Action’, 6(2)European Journal of Risk Regulation (2015) p. 323 CrossRefGoogle Scholar

11 A. Dashwood, ‘Article 47 TEU and the relationship between first and second pillar competences’, in A. Dashwood and M. Maresceau, Law and Practice of EU External Relations (Cambridge University Press 2008) p. 100. See also AG Bot Opinion in ECJ 19 July 2012, Case C-130/10, European Parliament v Council ECLI:EU:C:2012:50 para. 9 and AG Bot Opinion in ECJ 24 June 2014, Case C-658/11, European Parliament v Council ECLI:EU:C:2014:41, para. 86; H. Merket, The EU Security-Development Nexus: Bridging the Legal Divide (Brill 2016) p. 264.

12 The present analysis is ‘static’ in the sense that it does not discuss trends or possible future variations in institutional behaviour. Moreover, it is not a quantitative treatment of institutional behaviour. These may be avenues for future research.

13 On which, see the discussion in below and n. 22.

14 They are also scattered throughout the Treaties: Article 8 TEU specifies the objective on the EU in its neighbourhood; specific articles in the TFEU refer to other policies.

15 For example, see the case of the EU Association Agreement with Ukraine discussed below.

16 Art. 24 TEU.

17 Considering that the institutional figure who conducts CFSP is called the High Representative for the Union Foreign Affairs and Security Policy (Art. 18 TEU), the phrases foreign policy, foreign affairs, external action, or international relations are used interchangeably in this article.

18 According to Dashwood, CFSP consists of the ‘political, security and defence aspects’ of foreign policy: Dashwood, supra n. 5, p. 3.

19 If it is even possible to define what is ‘political’. If taken to the extreme, the argument leads to the conclusion that the presence of a political element in all areas must imply that all EU internal competences are the same. However, arbitrary distinctions matter ‘less’ in internal competences: it is in the external sphere that, due to the ‘third country’ element, mistakes are harder to correct.

20 Gosalbo-Bono, R. ‘Some Reflections on the CFSP Legal Order’, 43 Common Market Law Review (2006) p. 337 Google Scholar

21 Van Vooren, B. ‘The Small Arms Judgment in an Age of Constitutional Turmoil’, 14(2)European Foreign Affairs Review (2009) p. 245 Google Scholar

22 AG’s Opinion in Case C-130/10, supra n. 11, para. 63. Similarly, see Larik, supra n 8, p. 215.

23 AG’s Opinion in Case C-658/11, supra n. 11, para. 87.

24 P. Eeckhout, EU External Relations Law (Oxford University Press 2013) p. 169.

25 P. Van Elsuwege, ‘EU external action after the collapse of the pillar structure: in search of a new balance between delimitation and consistency’, 47 CMLR (2010) p. 987 at p. 1006.

26 P. Koutrakos, EU International Relations Law (Hart 2015) p. 420.

27 See e.g. ECJ 14 June 2016, Case C-263/14, Parliament v Council ECLI:EU:C:2016:435, para. 44. On the problems of this test, Van Elsuwege, supra n. 25, p. 1004; and P. Koutrakos, The Common Security and Defence Policy (Oxford University Press 2013) p. 242. The Court has held that recourse to a dual legal basis is not possible where the procedures laid down for each legal basis are incompatible with each other, see paras. 17-21 of ECJ 11 June 1991, Case-300/89, Commission v Council (‘Titanium dioxide’) [1991] ECR I-2867; see also ECJ 19 July 2012, Case C-130/10, European Parliament v Council ECLI:EU:C:2012:472, para. 45. AG Mengozzi in ECJ 20 May 2008, Case C-91/05, Commission v Council ECOWAS ECLI:EU:C:2008:288, para. 176 excluded recourse to a dual legal basis implying two different voting rules. The opposite conclusion was reached by AG Bot at paras. 33 and 39 of his Opinion in C-658/11. In its grand chamber judgment, as well as in Case C-263/14, supra n. 27, the Court did not decide directly on the points raised by the AG; therefore it has still not yet been explicitly ruled out whether it is possible to adopt a decision on a substantive dual legal basis.

28 Including internal competences.

29 For this reason, Art. 7 TEU establishes a system for ensuring Member State compliance with EU fundamental values.

30 Security is further defined in Art. 43(1). J. Schmidt, ‘Common Foreign and Security Policy and European Security and Defence Policy after Lisbon: Old Problems Solved?’, 5 Croatian Yearbook of European Law and Policy (2009) p. 240.

31 Eeckhout, supra n. 24, p. 169; Van Elsuwege, supra n. 25, p. 1006; Koutrakos, supra n. 26, p. 420.

32 ECJ 13 March 2014, Case C-512/12, Front Polisario v Council ECLI:EU:T:2015:953.

33 Council Decision 2012/497/EU of 8 March 2012 on the conclusion of an Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco concerning reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products, the replacement of Protocols 1, 2 and 3 and their Annexes and amendments to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part.

34 Para. 165. The final outcome of the case was nonetheless the annulment of the agreement insofar as it extended to Western Sahara, but on appeal the Court of Justice reversed the judgment because it found that the agreement did not apply to Western Sahara.

35 Following the European Commission’s adoption in February 2015 of a ‘Framework Strategy for a Resilient Energy Union with a Forward-Looking Climate Change Policy’, a new Gas Regulation was proposed in 2016 (Proposal for a Regulation of the European Parliament and of the Council concerning measures to safeguard the security of gas supply and repealing Regulation (EU) No. 994/2010).

36 Regulation 994/2010 of the European Parliament and of the Council of 20 October 2010 concerning measures to safeguard security of gas supply and repealing Council Directive 2004/67/EC, 5th Recital.

37 The European Union Energy Security Strategy of 2014 warns that ‘[t]he most pressing energy security of supply issue is the strong dependence from a single external supplier’.

38 The data are from Van Vooren, B. and Wessel, R., EU External Relations Law (Oxford University Press 2014)CrossRefGoogle Scholar for instruments up to 2014; the data after that date were calculated by the author.

39 See also GC 10 October 2014, Case T-720/14, Rotenberg ECLI:EU:T:2016:689 para. 176; and C-658/11 AG Opinion para. 119.

40 GC 28 May 2013, Case T-200/11, Al Matri ECLI:EU:T:2013:275.

41 Second recital of Decision 2011/72/CFSP, with a similar formulation in Art. 1 thereof.

42 See also, in the same context, GC 28 May 2013, Case T-187/11, Trabelsi ECLI:EU:T:2013:273 para. 80; GC 30 June 2016, Case T-224/14, CW ECLI:EU:T:2016:375 para. 69 and GC 5 October 2017, Case T-165/15, Mabrouk ECLI:EU:T:2017:694 para. 64.

43 GC 2 April 2014, Case T-133/12, Ben Ali ECLI:EU:T:2014:176.

44 GC 22 April 2015, Case T-190/12, Tomana ECLI:EU:T:2015:222.

45 Para. 103.

46 GC 19 July 2017, Case T-348/14, Yanukovych ECLI:EU:T:2016:508 para. 88.

47 GC 8 November 2017, Case T-246/15, Yvanyushchenko ECLI:EU:T:2017:789.

48 GC 8 November 2017, Case T-245/15, Klymenko para. 69.

49 GC 23 September 2014, Case T-646/11 Ipatau ECLI:EU:T:2014:800.

50 Other cases which reached the same conclusion are GC 7 July 2017, Case T-215/15 Azarov ECLI:EU:T:2017:479 para. 83; GC 27 July 2017, Case T-221/15, Arbuzov ECLI:EU:T:2017:478 para. 103.

51 Case C-263/14, supra n. 27, para. 36.

52 Council Decision (CFSP) 2016/1693 of 20 September 2016 concerning restrictive measures against ISIL (Da’esh) and Al-Qaeda and persons, groups, undertakings and entities associated with them and repealing Common Position 2002/402/CFSP, 8th recital.

53 Case C-130/10, supra n. 27.

54 ECJ 3 September 2008, Joined Cases C-402/05 P and C-415/05 P, Kadi ECLI:EU:C:2008:461; ECJ 18 July 2013, Joined Cases C-584/10 P, C-593/10 P and C-595/10 P Kadi II ECLI:EU:C:2013:518 para. 103; Kadi II (Joined Cases C-584/10 P, C-593/10 P and C-595/10 P) ECLI:EU:C:2013:176 AG Opinion paras. 73-74.

55 Rosneft challenged the validity of certain provisions of Council Decision 2014/512/CFSP of 31 July 2014, concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2014 L 229/13) and of Council Regulation (UE) No. 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2014 L 229/1).

56 Para. 112. See also GC 11 January 2017, Case T-255/15, Almaz Antey v Council ECLI:EU:T:2017:25 para. 99; GC, Case T-262/15 Kiselev ECLI:EU:T:2017:392 paras. 58 and 81; Rotenberg, supra n. 39, para. 176.

57 Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of passenger name record data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime.

58 Regulation (EU) 2015/847 of the European Parliament and of the Council of 20 May 2015 on information accompanying transfers of funds and repealing Regulation (EC) No. 1781/2006.

59 See below.

60 See also AG’s Opinion in Case C-658/11, supra n. 11, para. 114.

61 AG’s Opinion in Case C-130/10, supra n. 11, para. 81.

62 Case C-263/14, supra n. 27.

63 ‘As the Council and the Kingdom of Sweden very rightly state, the crucial factor is that the relevant rules in Articles 82 TFEU and 87 TFEU deal only with cooperation within the Union. This can be seen, on the one hand, from a glance at the wording of the two provisions, but, on the other, it also follows from the concept of the area of freedom, security and justice, to the creation of which they contribute. It is the Union that provides its citizens with such an area and it is the Union that constitutes that area (Article 67(1) TFEU), with the emphasis on an area without internal frontiers (Article 3(2) TEU and 67(2) TFEU). By contrast, the contested decision — or the disputed agreement which it approves — does not regulate judicial or police cooperation within the Union. Nor does it affect or alter such cooperation in accordance with the last variant of Article 216(1) TFEU. Rather, contrary to the claim made by the Parliament and the Commission, the Member States’ power to prosecute international crimes like piracy is completely unaffected by the agreement. The sole subject of the agreement is cooperation with the authorities of Tanzania, a third State, and then only if the authorities of the Member States do not take on the prosecution themselves’: AG’s Opinion in Case C-263/14, paras. 63-64 (emphasis in the original).

64 G. Butler, ‘Forcing the law to overlap? EU foreign policy and other EU external relations in times of crisis’, in E. Kużelewska et al. (eds.), Irregular Migration as a Challenge for Democracy (Intersentia 2018).

65 2011/137/CFSP.

66 2014/145/CFSP.

67 Butler, supra n. 64. An example of a CFSP decision was Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union Military Operation in the Southern Central Mediterranean (EUNAVFOR Med) OJ L 122/31, establishing Operation Sophia.

68 Arts. 1(1) and 2(2) Council Decision (CFSP) 2015/778, supra n. 67. Applying the rationale proposed by AG Bot in the Opinion in Case C-658/11, supra n. 11, para. 112, this is an area of freedom, security and justice competence.

69 Staying on the distinction between the area of freedom, security and justice and CFSP: ‘Of course, the distinction is not always clear as it is true that the development of a form of crime in a certain region may pose a threat to both the internal security of the Union and the stability of the region concerned’: AG’s Opinion in Case C-658/11, supra n. 11, para. 113.

70 Para. 46.

71 GC 27 February 2014, Case T-256/11, Ezz ECLI:EU:T:2014:93.

72 This point of the General Court was confirmed for procedural reasons on appeal in ECJ 5 March 2015, Case C-220/14, Ezz v Council ECLI:EU:C:2015:147, paras. 43-44.

73 GC 21 February 2018, Case T-731/15, Klyuyev v Council ECLI:EU:T:2018:90, para. 85.

74 Yanukovych, supra n. 46, para. 95.

75 Koutrakos, supra n. 27, p. 212.

76 Shared Vision, Common Action: A Global Strategy for the European Union’s Foreign and Security Policy. The word ‘development’ appears 67 times in the 48 pages of text.

77 Regulation (EU) No. 230/2014 of the European Parliament and of the Council of 11 March 2014 establishing an instrument contributing to stability and peace.

78 European Parliament, ‘Financing of CSDP missions and operations’ available at <www.europarl.europa.eu/RegData/etudes/ATAG/2016/577958/EPRS_ATA(2016)577958_EN.pdf> visited 23 July 2018.

79 ECJ 11 June 2014, Case C-377/12, Commission v Council ECLI:EU:C:2014:1903.

80 See, e.g. Council Decision 2013/755/EU of 25 November 2013 on the association of the overseas countries and territories with the European Union.

81 Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part of 21 March 2014 OJ L161/3.

82 See e.g. 6th recital of the Agreement.

83 See also Art. 7 of the Agreement.

84 The Council conclusions adopted on the day it adopted the negotiating directives for the agreement in January 2007 would suggest otherwise: ‘The Council and the Commission declare that […] through this Agreement, the European Union aims to build an increasingly close relationship with Ukraine, aimed at gradual economic integration and deepening of political cooperation’.

85 See above the mention of Rosneft and CFSP measures adopted by the EU.

86 Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC, on which see M. Blauberger and M. Weiss, ‘“If you can’t beat me, join me!” How the Commission pushed and pulled member states into legislating defence procurement’, 20(8) Journal of European Public Policy (2013) p. 1120.

87 T. Paine, Common Sense, 1st edn (1776). See also Front Polisario, discussed under Art. 21(2)(a).

88 Quoted in D. Tussie, ‘Trade Diplomacy’ in A.F. Cooper, J. Heine, R. Thakur (eds.), The Oxford Handbook of Modern Diplomacy (Oxford University Press 2013).

89 ECJ 19 October 1995, Case C-70/94, Fritz Werner Industrie-Ausrustingen GmbH v Germany [1995] ECRI-3189.

90 ECJ 17 October 1995, Case C-83/94, Criminal Proceedings against Peter Leifer and Others [1995] ECRI-3231.

91 A. Dashwood, ‘Dual-use Goods: (Mis)Understanding Werner and Leifer’, in D. Arnull et al. (eds.), Continuity and Change in EU Law: Essays in Honour of Sir Francis Jacobs (Oxford University Press 2008).

92 Regulation 1334/2000.

93 More precisely, on the CFSP and the Treaty on the European Community.

94 Dashwood, supra n. 91, p. 357.

95 Ibid., p. 358.

96 Council Decision (EU) 2016/1841 of 5 October 2016 on the conclusion, on behalf of the European Union, of the Paris Agreement adopted under the United Nations Framework Convention on Climate Change.

97 E.g. Council Decision (CFSP) 2015/1336 of 31 July 2015 amending decision 2010/413/CFSP concerning restrictive measures against Iran.

98 Council Decision 2010/427/EU establishing the organisation and functioning of the European External Action Service, OJ L 201/30.

99 European Union External Action Service, ‘Strategy for Security and Development in the Sahel’, available at <eeas.europa.eu/sites/eeas/files/strategy_for_security_and_development_in_the_sahel_en_0.pdf> visited 23 July 2018.

100 The competence to adopt measures for civil protection was created for and assigned to the Community in the Treaty of Maastricht: S. Villani, ‘The EU Civil Protection Mechanism: instrument of response in the event of a disaster’, 26 Revista Universitaria Europea (2017) p. 121 at p. 127.

101 GC 30 September 2015, Case T-450/12 Anagnostakis v Commission ECLI:EU:T:2015:739, para. 60; ECJ 12 November 2015, Case C-493/13 P, Elitaliana v EULEX Kosovo ECLI:EU:C:2014:2416, AG Opinion, para. 17; AG Bot’s Opinion in Case C-130/10, supra n. 11, para. 65. For details, see Lonardo, L., ‘Integration in European Defence: Some Legal Considerations’, 2(3)European Papers (2017) p. 887 Google Scholar at p. 895.

102 So is the Civil Protection Mechanism, established and implemented on Art. 196 TFEU. Decision 1313/2013/EU of the European Parliament and of the Council of 17 December 2013 on a Union Civil Protection Mechanism and Council implementing Decision 2014/762/EU; and the previously mentioned Instrument contributing to Stability and Peace.

103 ‘Joint proposal for a Council Decision on the arrangements for the implementation by the Union of the Solidarity Clause’ presented, pursuant to Art. 222(3) TFEU, on 21 December 2012 by the High Representative of the EU for Foreign Affairs and Security Policy and the European Commission.

104 Council Decision 2014/415/EU of 24 June 2014 on the arrangements for the implementation by the Union of the solidarity clause. However, the Council Decision does not provide a general framework for dealing with actions having military defence implications, because the joint proposal excluded ‘defence implications’.

105 Lonardo, supra n. 101, p. 895.

106 Myrdal, S. Rhinard, M. ‘The European Union’s Solidarity Clause: Empty Letter or Effective Tool?’, 2 Ui, Swedish Institute of International Affairs Occasional Papers (2010) p. 17.Google Scholar

107 European Global Strategy, supra n. 76, p. 4.

108 See e.g. the EU-NATO Joint Declaration of 8 July 2016.

109 E.g. Council Decision 2011/318/CFSP of 31 March 2011 on the signing and conclusion of the Framework Agreement between the United States of America and the European Union on the participation of the United States of America in European Union crisis management operations (L143 1).

110 Barnard, C. The Substantive Law of the EU (Oxford University Press 2013) p. 67 CrossRefGoogle Scholar on the boundaries between Art. 110 TFEU and other Treaty provisions.

111 See e.g. Dashwood, A. and Hillion, C. (eds.), The General Law of EC External Relations (Sweet and Maxwell 2000).Google Scholar

112 T. Tridimas, ‘Banking Union: An Unfinished Story of Federalization’, Conclusions of the XXVII FIDE Congress (2016).

113 It would go beyond the scope of this article to discuss the separate issue of whether the EU imposes greater legal constraints on its foreign policy than do other federations or states.

114 This is not meant to deny the historical and political reality faced by Member States for the retention of a CFSP, but only to reflect on the arbitrariness thereof.

115 See also ECJ, 26 November 2015, Case C-660/13, Council v Commission (Swiss Financial Contribution) ECLI:EU:C:2015:787 AG Opinion, para. 106.