EU and the world

In this class, we will look at the EU as an international actor. We will:

• look at the relevant provisions in the TFEU and TEU to understand who the relevant institutional actors are, and which competence the Union has;
• discuss the relation between international law and EU law, as viewed from the CJEU perspective.

→ you will have to read the Treaties alongside the blogpost!

External competences according to the Treaties

The external competences of the Union are regulated both in the TFEU and the TEU. The chapter in the TEU deals with aspects related to foreign policy, security and defence, whereas the TFEU deals with the external competences in all other areas (most notably, of course, international trade). These two areas are held together by two articles in the TEU holding “general provisions” on EU’s external action:

• Articles 21–22 TEU: General provisions on EU’s external action
• Articles 23–46 TEU: the Common Foreign and Security Policy (CFSP), which includes the Common Security and Defence Policy (CSDP)
• Article 205–222 TFEU: external action in all other areas where the Union is competent (e.g. common commercial policy)

General provisions

The competences granted by TEU and TFEU, respectively, are different in many regards. However, they are under the common roof of general provisions for external action. Article 21 TEU provides a laundry list of principles and objectives that is supposed to characterize the external action of the Union both under the TEU and the TFEU:

Article 22 TEU authorizes the European Council to make more specific choices as to the Union’s “strategic interests and objectives” in regard to external action, which the competent institutions are supposed to pursue both under the TEU and the TFEU.

Institutional actors + procedure

TEU and TFEU competences for external action differ significantly in both institutional (who is authorized to act) and procedural (which rules apply e.g. to lawmaking) aspects:

• The TFEU is “supranational”, and this also shapes the external dimension of the TFEU. Here, the role of the EU institutions is strong: the EP is involved at the legislative side alongside with the Council, the Commission is proposing, negotiating and executing, and the CJEU is reviewing.
• By contrast, the TEU is “intergouvermental”. The central actor is the European Council and the Council (i.e., the Member States representatives), and the execution rests on the so-called “High Representative” and the Member States (rather than on the Commission). By contrast, the role of the “supranational” EU institutions — CJEU, EP, Commission — is limited. There are no legislative acts. This “intergouvernmental” character of the CFSP is described by Article 24 TEU:

Consequently, the EU is represented externally by different institutions:

• In the TFEU policies it is the Commission who represents the Union (e.g. in negotiating international agreements like TTIP).
• By contrast, in the TEU policies (CFSP) the EU is represented externally by the “High Representative”, who is aided by the “European External Action Service” (EEAS).

Article 27 TEU holds:

The “High Representative” is an interesting and unusual figure, who is located at different EU institutions at the same time (see Article 18 TEU).

→ Read Article 18 TEU and Article 15(2) TEU to see which.

The EEAS is only a few years old. Its personnel is composed of employees from the Council, from the Commission, as well as employees seconded (i.e., “borrowed” for a few years) from the Member States.

External competences under TEU and TFEU — overview

The Union’s external competences under the TEU (CFSP) are defined by Article 24 TEU as follows:

According to Article 37 TEU, this also includes the competence to conclude international agreements:

Regarding the Union’s external competences under the TFEU, Article 3 TFEU (defining the EU’s exclusive competences) holds:

The EU may also conclude international agreements in fields that are in the shared competence of both EU and Member States; these so-called “mixed agreements” require consensus from both the EU and the Member States (see below).

External competences in the TEU: CFSP (+CSDP)

As just discussed, the TEU competences follow the “intergovernmental” model, where Member States are in charge. Remember that, according to Article 24 TEU, there are no legislative acts in the CFSP ( → why is that so?). Instead, the institutions act in the following ways:

• Article 26(1) TEU: the European Council defines “general guidelines for the common foreign and security policy, including for matters with defence implications”
• Article 26(2) TEU: these guidelines are further defined and implemented via “decisions” by the Council
• Article 26(3) TEU: the High Representative and the Member States execute these decisions

A specific part of the CFSP is the “Common security and defence policy” (CSDP), which essentially deals with military and civil operations abroad. The following points are important:

• the Council votes unanimously in the CSDP.
• The infrastructure, equipment and personnel for such operations come from the Union and the Member States (in case of military equipment and personnel of course only from the Member States, as the EU does not have an army) (Article 42(1) TEU).
• “Member States shall make civilian and military capabilities available to the Union for the implementation of the common security and defence policy” (Article 42(3) TEU)
• However, in practice, states or groups of states will “volunteer” for certain tasks: Article 42(5) TEU allows the Council to entrust the execution of the operations to a group of states.
• The CSDP is “built” with an eye on increasing cooperation in the field: “The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.” (Article 42(2) TEU)

→ try to find an example for an operation implemented under CSDP!

→ does the EU’s CSDP remind you more of a “regular” state, or more of the UN?

External competences in the TFEU

We saw that Article 3 TFEU gives a general overview of the Union’s ability to engage in external actions within its exclusive competence. These are further specified in Part Four and Five of the TFEU:

• Part Four: Association of the Overseas Countries and Territories (Arts 198–204 TFEU)
• Part Five: External Action by the Union (Articles 205–222 TFEU)

Part Four: Association of the Overseas Countries and Territories (Arts 198–204 TFEU)

This competence was already part of the Treaty of Rome (1957), and points to the colonial past of some EU countries. Back in 1957, a number of Member States (France, Belgium, Netherlands) were still colonizers, and further Member States with over-sea territories entered later (UK, Denmark, Spain, Portugal) — this situation was taken into account by the Treaties. Today, only a few of these territories remain. While each of these Member States has organized the relations with their respective territories differently, the TFEU knows two distinct categories:

• territories that are part of the EU Member State itself (e.g. French Guiana, Azores, Canary Islands). EU law applies there automatically, but the EU can make exceptions for them (Article 349 TFEU).
• territories that have some other form of relationship with an EU Member State. These are regulated under Part IV of the TFEU. According to Article 198 TFEU, this includes all countries and territories listed in Annex II to the Treaties. EU law applies in parts.

→ try to find out which regime applies to Sint Maarten!

from wikipedia — the article provides a nice overview.

Part Five: External Action by the Union (Articles 205–222 TFEU)

In part Five, the following aspects are regulated:

• common commercial policy (Articles 206–207 TFEU)
• development cooperation + other cooperation + humanitarian aid
• restrictive measures (Article 215 TFEU)
• international agreements (Article 216–219 TFEU)
• solidarity clause (Article 222 TFEU)

→ figure out for yourself what Article 222 TFEU and Article 215 TFEU are about.

→ Which CJEU case that you already know is partly concerned with Article 215 TFEU?

→ Identify one legislative measure enacted on the basis of Article 215 TFEU and one court case dealing with the provision (just identify the objective of the measure, and the name of the case): use advanced search on eur-lex, choose collection “Treaties”, search for Article 215 TFEU; then choose “document information”, and then scroll down to the field “relationship between documents” (see screenshot) and click on the first or third option.

Common commercial policy (CCP)

This competence exists since the Treaty of Rome: as the EU is a customs union with a common tariff at its external border, Member States cannot independently enter trade agreements with third countries any more; the common commercial policy is therefore a necessary correlate to the customs union. However, the scope of areas that falls within the CCP has expanded over the years, most recently by the Treaty of Lisbon (which added intellectual property and investment).

→ please use eur-lex to find one example of an international agreement based on Article 207 TFEU, and one example for another type of regulatory measure based on Article 207 TFEU.

International agreements

Article 216 TFEU is a general competence of the Union to conclude international agreements. Articles 216(1) TFEU holds:

The article lists a number of authorizations for the EU to conclude international agreements. It is an attempt of codifying the CJEU’s case law on the Union’s competence to conclude international agreements:

• if the Treaties authorize the Union to do so (→ this is not really an independent authorization, because the respective Treaty provision already constitutes, by itself, a sufficient legal basis for concluding an agreement. But obviously it makes sense to include it for reasons of comprehensiveness)
• if it is provided for in a legally binding Union act ( → relates to Opinion 1/94 on whether the WTO agreements conform to EU law)
• if an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties ( → this is a reformulation of the CJEU opinion 1/76 — see screenshot below; this “implicit” Union competence to conclude international agreement is very broad, essentially mirroring the broad flexibility clause of Article 352 TFEU)

• if an agreement is likely to affect common rules or alter their scope ( → this formulation does not really make sense, and is probably a mistake. Given the same formulation used, this appears to be an attempt to codify the AETR judgment (case 22/70 — see screenshot below) which holds that Member States cannot conclude international agreements in areas where the EU has enacted internal policies — however, Article 216 TFEU does not really express this point correctly.)

→ Can you find an example of an international agreement the conclusion of which is authorized explicitly by the Treaties?

Association Agreements

Article 217 TFEU also allows the Union to conclude a specific type of international agreement, namely the “association agreement”.

Association agreements tend to be more comprehensive than “normal” international agreements (for which Article 216 TFEU is applicable): they may involve the creation of common institutions, and a partial integration of the associated country into the legal system of the EU (e.g. the EU-Turkey Association Agreement has distinct institutions, most notably the Association Council, and integrates Turkey into the EU customs union and partially the internal market). However, in practice the difference is gradual, and many of the EU’s international agreements could be concluded on the basis of either Article 216 or 217 TFEU. In procedural terms, the negotiation procedure is a bit different (see Article 218) for “normal” international agreements on the one hand and for association agreements on the other.

Mixed Agreements

If international agreements reach beyond the exclusive competence of the Union and include regulatory issues where the Member States are competent or share competence, the agreement has to be concluded as a “mixed agreement.” In procedural terms this means that an international agreement must be concluded according to the Treaties’ procedural requirements (Article 218 TFEU) and ratified by all Member States (depending on their national constitutional system, this will usually require a parliamentary vote.) An example for an international agreement concluded as a “mixed agreement” is TTIP, which we will discuss in Thursday’s class.

Whether the Union has exclusive competence or whether a mixed agreement is necessary is often not perfectly clear. The Union tends to prefer mixed agreements for political reasons. Please read the following excerpt from Robert Schütze’s book “European Constitutional Law”.

Relation between international law and EU law

In this section we look at the relation between international and European law, seen from the perspective of the CJEU. We will do so on the basis of the CJEU case C-366/10, Air Transport Association of America (please read it). I have described the background to the case here (you find it under the headline “Example 1: EU ETS, jurisdiction and international aviation”). Also read paras 42–44 of the judgment as intro. The case deals with an EU Directive, which includes international aviation into the EU Emission Trading System (ETS). According to the Directive, international flights landing at or leaving from an EU airport have to acquire emission certificates for the emissions produced throughout the flight. The American airlines challenges British law that implements the Directive, arguing that it breaches international law; the British court sends a reference to the CJEU. The CJEU has to answer two questions:

• which rules of international law (relevant in regard to the Directive) are directly applicable within the European legal system? (para 46)
• is the Directive invalid in the light of international law? (para 112)

The following provides comments on the case, but they may not be sufficient to understand the case (please read it).

• paras 47–48: CJEU reiterates: only the CJEU can declare EU law invalid, not the national courts ( → remember that this situation is one of two instances where a national court is obliged to send a reference to the CJEU)
• now the Court discusses the effect of international law in EU law:

• In other words, the international agreement itself may determine whether it is supposed to have direct and supremacy over EU law; if it does not do so, then the CJEU will decide.
• the CJEU then clarifies the general hierarchy between international and EU law:

• However, this does not mean that EU law can be invalidated on the basis of any international agreement; rather, they must satisfy certain conditions to do so (para 51):

(this strikes me as terribly obvious, but who am I to judge)

• This second criterion is interesting; it essentially grants the CJEU a very broad, undetermined scope of discretion to deny deny direct effect to certain international agreements.
• Finally, in order to have direct effect, an international law provision must conform to the same conditions as provisions of EU law ( → remember Van Gend en Loos?):

Subsequently, the CJEU checks which international law could be relevant:

• Chicago Convention (paras 57–72)
• Kyoto Protocol
• Open Skies Agreement
• principles of customary international law

First the CJEU looks at the Chicago Convention:

• check out what the Chicago Convention is about, e.g. by scanning the wikipeadia article.
• The EU is not member to the Chicago Convention, which raises the question in how far it’s binding on the EU. The Court analyzes this within the context of its doctrine of functional succession (first developed in the case International Fruit Company in regard to the GATT):

→ oke, so the Chicago Convention cannot bind the EU.

Next one is the Kyoto Protocol:

The CJEU reasons as follows:

→ Consequently, the Kyoto Protocol is not directly applicable.

(we will skip the discussion of the Open Skies Agreement, but you can see that certain provisions of the agreement can have direct effect under the usual conditions)

Finally, the CJEU tackles customary international law:

• Please remember that international customary law, like international treaties, is a source of international law. The CJEU describes the relation between international customary law and EU law as follows:

• The Court then finds three principles of international customary law to be applicable.
• (we will end our discussion of the case here, because the rest does not concern as such the question we are interested in).

→ Can you write down a concise summary of the Court’s understanding of how international and EU law relate?