TAMARA ĆAPETA

JEAN MONNET CHAIRFACULTY OF LAW, UNIVERSITY OF ZAGREB

2015

The External Powers of the EU

Division of powers in external relations

Unlike most federal states, in which external power is exercised by federation, in the EU external power is shared between the EU and its Member States

division of powers between the EU and its Member States is complex and constantly changing

When can EU act in international relations?

Legal personality

Article 47 TEU : “The Union shall have legal personality.”

EU has legal personality since Lisbon TreatyUntill Lisbon treaty, European Communities

had legal personality

Legal personality means, among other, that EU is legal subject in international relations

Objectives of EU external action

Principles and objectives stated in Article 21 TEUThey relate to the entire EU (supranational and

CFSP):Article 21/3:

“The Union shall respect the principles and pursue the objectives set out in paragraphs 1 and 2 in the development and implementation of the different areas of the Union's external action covered by this Title and by Part Five of the Treaty on the Functioning of the European Union, and of the external aspects of its other policies.”

Principle of conferral

EU has powers to regulate only those relations for which Member States have transferred a competence

Applicable also in the field of external powers To enable the EU to conclude an international

agreement, Treaty needs to contain a legal basis which authorizes EU to do so

If the legal basis does not exist, an international agreement concluded by the EU is legally invalid

Choice of legal basis is subject to judicial review

Difference ‘ordinary’ external relations and CFSP

Principle of conferral applies to both ‘ordinary’ external relations and the CFSP

International action, including an international treaty signed by the EU must demonstrate legal basis

Procedure for signing, implementation and the legal effect of international agreement within the supranational pillar and the CFSP differ

CFSP v supranational pillar

Since Lisbon Treaty, no specific objectives of CFSPArticle 24/1 TEU:

“The Union's competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union's security, including the progressive framing of a common defence policy that might lead to a common defence.”

Since Lisbon, no preference for either method (Article 40 TEU) – complicates judicial review of proper choice of legal basis

Principle of conferral in (not CFSP) international relations

EU can sign an international agreement When the Treaty expressly grants external powers –

express powers When the Treaty is silent about the possibility of

signing an international agreement, but there is a power to regulate this area internally– implied powers

Wide EU powers in international relations , based on the doctrine of implied powers, are largely the result of case-law, starting with the case ERTA (1971.)

Codification of case law by the Lisbon Treaty?

Article 216 TFEU1. The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of 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, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope.

Express external powers

Sector-by-sector approach: external aspect today mentioned in different ways in different policy areas, but not in all

Lisbon Treaty has increased number of such areas:CCP and common customs tariff, agriculture, movement of capital and payments, transport, monetary policy, education and vocational training, culture, public health, trans-European networks, research and technological development, cooperation in the field of environmental protection, development cooperation, humanitarian aid, economic and financial cooperation with third countries, association agreements

Implied external powers

Case ERTA: Existence of external power linked to the adoption of internal measures

Later case-law:- EU has external power whenever there is an internal power, even if the internal power was not yet exercised (no internal measures were yet adopted)

Exclusive or shared power?

Exclusive power – means that Member States have lost the power to regulate certain issue on the international level – the EU only can sign an international agreement

Shared power – means that certain issue may be regulated internationally by both, the EU and the Member States

Shared powers become exclusive in certain situations

When an EU external power becomes exclusive?

When thus provided in the Treaty (eg. customs treaties, CCP, monetary issues for euro countries …)

ERTA – when the EU has enacted internal measures implementing certain policy, the external power is exclusive

Later case-law– additional conditions for the power to become exclusive If an agreements contains rules which could affect internally

adopted common rules (Open Sky cases) If internal rules largely regulate the area covered by an

international agreement (2/91 ILO Convention on Chemicals) If secondary law provides that the EU will regulate relations with

third states (1/03 – Lugano Convention)

Case-law since the mid-1990s: presumption of shared powers

Exclusive external powers in Lisbon Treaty

Article 3/2 TFEU:

“The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope.”

Consequences of the existence of exclusive power

Only EU can in such case negotiate and sign an international agreement

If the Member States entered into agreements within the areas of EU exclusive competence, they have the obligation to cancell such agreements according to the rules of international law

Example: Open skies cases

Shared powers – examples

When thus provided by the TreatyE.g. Article 191/4 TFEU (environment) :

“Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and with the competent international organisations. The arrangements for Union cooperation may be the subject of agreements between the Union and the third parties Concerned.”

Shared powers – examples

When the EU has not yet adopted detailed rules in the area covered by an international agreement

When the agreement to be signed regulates issues which fall both under the EU and under the Member State competences (SAAs; 1/78 Natural Rubber Agreement)

Whe the EU has only power to enact minimum rules, and the Member States are entitled to keep higher standards (1/91 ILO Convention on Chemicals at Work)

When an area is parallelly regulated by both the EU and theMS (e.g. trademarks)

Concurrent and Parallel Powers

Shared powers are concurrent powers – this means that Member States’ action is prevented if the EU has signed an international agreement

In certain areas, powers of the EU and the Member States can be exercised simultaneously – parallel powers: Development policy Humanitarian aid Research, space

Political importance of shared powers

Justification for conclusion of mixed agreements Mixed Agreements: international agreements in

which both the EU and its Member States appear as a party on the same side of the agreement

Example: all Stabilisation and Association Agreements

For entry into force of such agreements, EU and each Member State has to ratify them

Important for states in order to retain international visibility and control international legal commitments

Mixed Agreements

EU must conclude an agreement together with its Member States if such agreement relates also to issues for which EU lacks competence

EU may conclude an agreement together with its Member States if it has competence in the area which agreement covers, but such competence is shared with its Member States.

EU may sign such agreements without the participation of Member States as parties

Obligation to cooperate

When the power is shared, the EU and the MSs must cooperate

This is sometimes expressly provided for by the Treaty: e.g. Article 210 TFEU (development cooperation)“1. In order to promote the complementarity and efficiency of their action, the Union and the Member States shall coordinate their policies on development cooperation and shall consult each other on their aid programmes, including in international organisations and during international conferences. They may undertake joint action. Member States shall contribute if necessary to the implementation of Union aid programmes.”

Obligation to cooperate

Obligation to cooperate exists even if not expressly provided for in the Treaty

Opinion 1/94:“108) Next, where it is apparent that the subject-matter of an agreement or convention falls in part within the competence of the Community and in part within that of the Member States, it is essential to ensure close cooperation between the Member States and the Community institutions, both in the process of negotiation and conclusion and in the fulfilment of the commitments entered into. That obligation to cooperate flows from the requirement of unity in the international representation of the Community...”

General obligation to cooperate

Article 4/3 TEU:

“Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.”

Procedure for signing international agreements

Article 218 TFEUActors:

Commission or High Representative: initiate and negotiate

Council: gives negotiating mandate, signs and ratifies internally (by unanimity or qualified majority)

European Parliament – consent or consultation A priori control by the CJEU – Article 218/11 TFEU

EU in international organisations

EU can be a founder of an international organisation, or succeed to the place or parallel to Member States (WTO)

Membership in existing organisations – dependent on the rules of that organisation

Problem – if organisation does not allow for participataion of international organisations UN Council of Europe – rules modified

When EU cannot be a member of an international organisation

Obligation to cooperate and adopt common positionsOpinion 1/13

the Hague Convention on international child abduction MS are parties; EU is not if EU is not a party to an international agreement its external

competences have to be exercised jointly by Member States MS have to decide jointly on admitting new state to the

agreement

Case C-399/12 Germany v Council (OIV) if EU is not a member of an international organisation, the

Member States who are members have to adopt common position in order not to influence EU internal policies

Multiannual financial framework 2014-2020External Action

The total amount agreed for the external relations package is €51,419 million over the period 2014-2020

Four policy priorities: enlargement, neighbourhood, cooperation with strategic partners and development cooperation.

Instrument for Pre-accession Assistance (IPA): €11,699 million European Neighbourhood Instrument (ENI): €15,433 million Development Cooperation Instrument (DCI): €19,662 million Partnership Instrument (PI): €955 million Instrument contributing to Stability and Peace

(IfSP): €2,339 million European Instrument for Democracy & Human

Rights (EIDHR): €1,333 million

Conclusions

EU has wide external powers, which allow it to pursue its economic interests on the global scene

E.g. TTiP (the Transatlantic Trade and Investment Partnership) – currently in the process of negotiation- could boost EU economy by €120 billion; US economy by €90 million, and the economy of the rest of the world by €100 billion