Abstract
The process of European integration has led to the creation of numerous external actions at the Union level, and these should now be brought together to reinforce the coherence of EU foreign affairs. The attainment of coherence finds an apparently insurmountable obstacle in the delimitation of the powers conferred on EU institutions, since a rigid separation of the powers of Union bodies hinders the generation of positive connections among EU policies. The Lisbon Treaty sought to increase coherence in foreign affairs in part by creating the European External Action Service. This chapter examines the EEAS’s mandate and responsibilities in order to elucidate the interplay of coherence and conferred powers in external relations law. The first part of the analysis investigates the EEAS mandate, showing that the Treaties require the Service to coordinate external relations in order to ensure coherence. The second part examines the nature of this coordination, focusing on the technique legislators used to enable the EEAS to have a role in the implementation of development aid. Legislators identified the EEAS’s responsibilities by balancing the principle of the coherence of external action against the delimitation of conferred powers, with a view to fostering synergy in foreign affairs. It is argued that a similar approach can also be adopted in other areas where the EEAS brings added value as a coordinator, and in particular in the area of crisis response. An enlargement of the EEAS’s responsibilities is politically difficult, but it may be simplified by an amendment of the Treaties (where the mandate of the Service is spelled out), in such a way as to reinforce the Service’s legitimacy and effectiveness as a foreign-policy coordinator.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Van Vooren (2011).
- 2.
Wouters et al. (2013), p. 26.
- 3.
- 4.
- 5.
Duke and Blockmans (2010).
- 6.
Cf. Blockmans et al. (2013), p. 14.
- 7.
OJ 2010 L 201/30. It must be stressed from the outset that, even though the EEAS Decision may be revised soon, its content is unlikely to be radically altered, especially as concerns the division of labour between the EEAS and Commission services; therefore, the findings of this paper are likely to remain valid even after the forthcoming amendment to Decision 2010/427/EU. Cf. High Representative, “EEAS Review”, http://eeas.europa.eu/library/publications/2013/3/2013_eeas_review_en.pdf. Accessed 18 September 2013.
- 8.
See European Council, A Secure Europe in a Better World: European Security Strategy, 12 December 2003, p. 13, http://www.consilium.europa.eu/uedocs/cmsUpload/78367.pdf. Accessed 24 June 2013.
- 9.
Single European Act, OJ 1986 L 169/1, Preamble. See also Article 30(5).
- 10.
Articles 18(4), 26(2) TEU and 196(1)(c), 212(1), 214(7), 329(2) TFEU. For a general survey of how Treaty drafters tried to address the lack of coherence in external action, see Chap. 9 by Wouters and Ramopoulos in this volume.
- 11.
Hillion (2012), p. 4.
- 12.
- 13.
- 14.
- 15.
See Mignolli (2009), pp. 10, 281–282.
- 16.
As has been noted by the International Law Commission, ‘it is a generally accepted principle that when several norms bear on a single issue they should, to the extent possible, be interpreted so as to give rise to a single set of compatible obligations’. See Conclusions of the Study Group on the Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Yearbook of the International Law Commission, 2006, vol. II, Part Two.
- 17.
The consistency of international law, for instance, is ensured also via the norms on treaty conflict, see inter alia Conforti (2011) (significantly titled ‘Consistency among Treaty Obligations’).
- 18.
Mignolli (2009), p. 282.
- 19.
Report by Mr. Leo Tindemans, Prime Minister of Belgium, to the European Council, Bulletin of the European Communities, Supplement 1/76.
- 20.
Berthelot, quoted in Outrey (1953), p. 718.
- 21.
Blockmans (2011), p. 7; Gauttier (2004), p. 26; Tietje (1997), p. 213. This is not to say that the Treaties do not request also the non-contradiction of EU law; as noted in den Hertog and Stroß (2013), pp. 379–381, also notions of consistency are advanced in Union primary law, namely through rules of delimitation.
- 22.
- 23.
Portela and Raube (2009), p. 4.
- 24.
See in particular Articles 13(1), 24(3), 26(2) and 28(5) TEU.
- 25.
Bosse-Platière (2009), p. 524.
- 26.
Neframi (2009), p. 49.
- 27.
Franklin (2011), p. 47.
- 28.
As is well known, coherence is hindered by a number of other factors, too, and in particular by the delimitation of Union and Member State competences, as shown, inter alia, in Cremona (2008), Bosse-Platière (2009), Neframi (2009), Mignolli (2009), Franklin (2011), and Hillion (2012). A holistic appraisal of the obstacles to the pursuit of coherence falls beyond the scope of this chapter.
- 29.
It may seem that this conundrum is solved, in a sense favourable to institutional balance, directly by the letter of Article 7 TFEU, according to which ‘the Union shall ensure consistency between its policies and activities, taking all of its objectives into account and in accordance with the principle of conferral of powers’ [emphasis added]. However, that interpretation of Article 7 TFEU is not appropriate, since this provision refers not to the powers of EU institutions but to the conferral of competences on the Union itself. This comes through clearly in the French version of the TFEU, according to which ‘l’Union veille à la cohérence entre ses différentes politiques et actions, en tenant compte de l’ensemble de ses objectifs et en se conformant au principe d’attribution des compétences’ [emphasis added]. As was previously noted, this paper does not seek to investigate the relationship between coherence and the delimitation of Union competences. It suffices to stress here that, even if the former were subordinated to the latter, as the letter of Article 7 TFEU may seem to suggest, the same would not be true of the interplay between coherence and institutional powers. Indeed, this interplay is not regulated by Article 7 TFEU but, as was indicated above, it rather depends on a systematic reading of Article 13(2) TEU and Article 7 TFEU (‘the Union shall ensure consistency between its policies and activities’).
- 30.
Van Elsuwege (2010), p. 1015.
- 31.
See in particular Articles 18(2) and 26(3) TEU.
- 32.
Article 221(2) TFEU.
- 33.
Article 18(3) TEU.
- 34.
Article 18(4) TEU.
- 35.
- 36.
It should be noted that Article 21(3) TEU, too, stresses that the High Representative should assist the Council and the Commission in ensuring external action consistency, while Article 26(2) TEU, located in the CFSP Chapter of the EU, states that the Council and the HR shall ensure ‘the unity, consistency and effectiveness of action by the Union’.
- 37.
Cf. CFI, Case T-309/03 Camós Grau v Commission [2006] ECR II-1173, para 66; in this sense, see also GC, Case T-264/09 Technoprocess v Commission and Delegation of the European Union to Morocco [2011] ECR II-00208, para 70; GC, Case T-395/11 Elti d.o.o v Delegation of the European Union to Montenegro [2012] nyr, para 36.
- 38.
Article 1(2).
- 39.
See Regulation 1081/2010/EU/Euratom of the Parliament and of the Council, OJ 2010 L 311/9; Regulation 1080/2010 of the European Parliament and of the Council, OJ 2010 L 311/1.
- 40.
Van Vooren (2011), p. 491.
- 41.
Cf. European Council Conclusions, 16 September 2010, EUCO 21/1/10 REV 1, Annex I para f; Commission and High Representative, Issue paper on the European External Action Service, Annex II to Council doc. 9956/05, para 7. See also the European Parliament Resolution on the institutional aspects of setting up the European External Action Service, 2009/2133(INI), 22 October 2009, preamble, letter J. Notice also that some versions of Article 27(3) TEU explicitly mention the HR’s ‘functions’ (in the plural); see the Italian version (‘funzioni’) and the Portuguese (‘funções’).
- 42.
See also Articles 3(1) and 9(2). Cf. Duke (2012), p. 50.
- 43.
Blockmans et al. (2013), p. 11.
- 44.
Article 2(1).
- 45.
Union institutions are in fact subject to the same mutual duties of sincere cooperation that govern relations between Member States, on the one hand, and EU institutions, on the other. See ECJ, Case 230/81 Luxembourg v European Parliament [1983] ECR 255; ECJ, Case 204/86 Greece v Council [1988] ECR 5323, para 16; ECJ, Case C-65/93 Parliament v Council [1995] ECR I-643, para 23. For a general survey on the principle of sincere cooperation, see Chap. 5 by Casolari in this volume.
- 46.
ECJ, Case C-266/03 Commission v Luxembourg [2005] ECR I-4805, para 58.
- 47.
If the EEAS were directly bound by an obligation, it would arguably be a legal person, something that seems to be ruled out by the letter of the EEAS Decision (although this aspect is far from certain); since this matter goes beyond the scope of the present analysis, it will not be addressed in any greater detail. However, see Article 1(2) of the EEAS Decision; see also Van Vooren (2011).
- 48.
The Service may even slow the decision-making process, by not approving the proposals for the College of the Commissioners which are prepared by other departments. In the absence of consensus on a proposal, the Commission would indeed be able to adopt a Decision only through a lengthy oral procedure, whereas the agreement of all departments enables the use of a rapid written procedure in the College, cf. Commission rules of procedure, Commission Decision 2010/138/EU, Euratom, of 24 February 2010, OJ 2010 L 55/60, Articles 8, 12 and 23(3).
- 49.
SEC (2012) 48, 10 January 2012, not published in the OJ. It is worth stressing, for the sake of accuracy, that the Working Arrangements are not formally an interservice arrangement, since they appear as an internal Commission document. However, they are de facto a service-level arrangement, since they were negotiated ‘word by word’ with the EEAS. This was pointed out to me by two EEAS officials I interviewed in September 2012 and confirmed by two Commission officials I interviewed in September 2012.
- 50.
It cannot be ruled out that the EEAS may enter into binding arrangements on administrative issues. However, this question exceeds the scope of this chapter and is consequently not analysed here.
- 51.
Grant (2013).
- 52.
House of Lords (2013).
- 53.
Dusepulchre (2008), p. 273.
- 54.
Or, more accurately still, current instruments are based on former Article 177 of the Treaty establishing the European Community (now Article 209 TFEU), and in some cases on Article 181a TEC (now Article 212 TFEU). Notice that the existing instruments are presently being reviewed. This analysis addresses the instruments as they exist, but the conclusions it reaches probably will hold in the future as well, since the overall architecture of development cooperation is likely to remain unchanged. Cf. Commission and High Representative, Joint Communication to the European Parliament and the Council, Global Europe: A New Approach to Financing EU External Action, COM (2011) 865 final, 7 December 2011.
- 55.
ECJ, Case C-268/94 Portugal v Council [1996] ECR I-06177, para 37.
- 56.
See ECJ, Case C-403/05 Parliament v Commission [2007] ECR I-9045, para 57; ECJ, Case C-91/05 Commission v Council [2008] ECR I-3651, para 65.
- 57.
Regulation of the Parliament and the Council 1717/2006/EC, OJ 2006 L 327/1, Article 3. The crisis-response part of the IfS is by definition non-programmable, in that as it deals with emergencies. Commission decisions in this field are nonetheless prepared by administrative departments, i.e. the EEAS and the Foreign Policy Instrument Service, a Commission department under the authority of the High Representative/Vice-President, which is co-located with the EEAS. For the sake of simplicity, the management of short-term part of the IfS is addressed here along with the programming of other development instruments.
- 58.
Regulation 1889/2006/EC of the European Parliament and of the Council, OJ 2006 L 386/11.
- 59.
Regulation of the Parliament and of the Council 1905/2006/EC, OJ 2006 L 378/41. ‘Thematic’ programmes, which are subsidiary to ‘geographic’ programmes, ‘encompass a specific area of activity of interest to a group of partner countries not determined by geography, or cooperation activities addressed to various regions or groups of partner countries, or an international operation that is not geographically specific’ [Article 11(1)].
- 60.
Council Regulation 300/2007/Euratom, OJ 2007 L 81/1. To be sure, the INSC is based neither on Article 209 nor on Article 212 TFEU but on Article 203 Euratom, which is the ‘flexibility clause’ of this Treaty. Nonetheless, the INSC appears to be related to both development and nondevelopment cooperation, since it is likely to foster both the interests of the EU and the development and welfare of developing countries, not unlike other thematic instruments, like the EIDHR and the IfS.
- 61.
See Regulation 1717/2006/EC, supra n. 57, Article 4.
- 62.
Regulation of the Council 617/2007/EC of 14 May 2007, OJ 2007 L 152/1. Even the EDF is not based on Article 209 TFEU but on an ‘internal agreement’ among the Member States (OJ 2006 L 247/32), an agreement that in turn serves to implement the ACP-EC partnership agreement, Signed in Cotonou on 23 June 2000, revised in Luxembourg on 25 June 2005, and newly revised in Ouagadougou on 22 June 2010, see OJ 2000 L 317, OJ 2004 L 297, OJ 2005 L 209, OJ 2005 L 287, OJ 2006 L 247, OJ 2010 L 287. Even so, the EDF is indubitably an instrument for the Development Cooperation of the Union, which is managed through procedures that closely resemble those applicable in the former Communitarian framework (see also ECJ, Case C-316/91 European Parliament v Council of the European Union [1994] ECR I-625, para 41). Therefore, for the sake of simplicity, the EDF is analysed here along with other development-cooperation instruments.
- 63.
Regulation 1638/2006 of the European Parliament and of the Council, OJ 2006 L 310/1.
- 64.
Interviews with six Europeaid officers March–July 2011, June 2012; interviews with three EEAS officers April–June 2012.
- 65.
Van Reisen (2010).
- 66.
The Service cannot have any formal power as concerns the management of development cooperation, simply because, like the Committee of Permanent Representatives (COREPER), ‘it is not an institution of the Communities upon which the Treaty confers powers of its own’. See ECJ, C-25/94 Commission v Council [1996] ECR I-1469, para 26. See also Van Vooren (2011).
- 67.
- 68.
Mekonnen (2010), p. 13.
- 69.
Duke and Blockmans (2010), p. 11.
- 70.
See Article 221 TFEU and Article 5 of the EEAS Decision.
- 71.
Interview, April 2012.
- 72.
It may be noted that the legislators preferred this approach to other scenarios originally suggested by C. Ashton (such as the transfer of the entire programming to the EEAS and a regional division of labour in which the Commission would have been responsible for Africa and the Service would have taken care of Asia and Latin America, cf. Tannous 2013, p. 334).
- 73.
Ministries of foreign affairs of Austria, Belgium, Denmark, Estonia, Finland, Germany, Italy, Latvia, Luxembourg, Netherlands, Poland, Slovakia, Spain, and Sweden, Non-paper: Strengthening the European External Action Service, 1 February 2013, available at http://eurotradeunion.eu/documents/20130201_nonpaper.pdf. Accessed 18 June 2013.
- 74.
Cf. House of Lords (2013), p. 46. In this sense, the Parliament is probably right to reject ‘any intergovernmentalisation’ of the neighbourhood policy. See European Parliament recommendation to the High Representative of the Union for Foreign Affairs and Security Policy and Vice President of the European Commission, to the Council and to the Commission of 13 June 2013 on the 2013 review of the organisation and the functioning of the EEAS [2012/2253(INI)], para 7.
- 75.
Casolari (2012), p. 152.
- 76.
Communication from the Commission to the European Parliament and the Council, Towards a stronger European disaster response: The role of civil protection and humanitarian assistance, COM (2010) 600, 26 October 2010.
- 77.
Proposal for a Decision of the European Parliament and of the Council on a Union Civil Protection Mechanism, COM (2011) 934, 20 December 2011, Articles 11(7) and 16(3).
- 78.
Interview, September 2012.
- 79.
Even the Working Arrangements do not clarify the issue, since they tautologically affirm that the division of labour between the ERCC and the Situation Room is to be determined ‘by the nature of [the] crisis’. See Working Arrangements, supra n. 49, 30. See also, in this sense, the EEAS Review, supra n. 7, p. 5.
- 80.
Article 2(10) of Council Decision 2007/779/EC, Euratom.
- 81.
Working Arrangements, supra n. 49, 32.
- 82.
Gatti (2012), pp. 190–191.
- 83.
Cf. Casolari (2012), p. 149.
- 84.
In fact, Dr. Miozzo, Managing Director for Crisis Response and Operational Coordination in the European External Action Service, noted that there is a reluctance from some quarters to cede control to a central coordinating figure, in a speech he delivered at the Institute of International and European Affairs on 8 March 2012, at the event ‘EU Crisis Response: From Pakistan to Libya’, http://www.iiea.com. Accessed on 28 June 2013.
- 85.
Justification for preferring the verb support to assist [the former also used in the EEAS Decision, the latter currently used in Article 27(3) TEU] lies in the language of Article 298 TFEU, stating that ‘in carrying out their missions, the institutions, bodies, offices and agencies of the Union shall have the support of an open, efficient and independent European administration’ [emphasis added].
- 86.
The Treaties refer to the HR exclusively in the masculine, but an argument can be made that they ought to instead use a gender-neutral form such as the ‘he/she’ used in EEAS Decision.
- 87.
The reference to Union ‘administrations’ is made by analogy to Article 298 TFEU.
References
Blockmans S (2011) Beyond conferral: the role of the European External Action Service in decision-shaping. In: Larik J, Moraru M (eds) Ever-closer in Brussels—Ever-closer in the world? EU External action after the Lisbon Treaty. European University Institute, pp 5–18
Blockmans S et al (2013) EEAS 2.0: a legal commentary on council decision 2010/427/EU Establishing the Organisation and Functioning of the European External Action Service. EU Foreign Policy, CEPS Paperbacks. http://www.ceps.eu/book/eeas-20-legal-commentary-council-decision-2010427eu-establishing-organisation-and-functioning-e
Bonavita V (2012) The FSJ component of EU–Libya relations: building coherence, avoiding contradictions or none of the above? In: Flaesch-Mougin C, Rossi LS (eds) La Dimension extérieure de l’espace de liberté, de sécurité et de justice après Le Traité de Lisbonne. Bruylant, Bruxelles, pp 549–574
Bosse-Platière I (2009) L’article 3 du Traité UE: Recherche sur une exigence de cohérence de l’action extérieure de l’Union Européenne. Bruylant, Bruxelles
Casolari F (2012) The external dimension of the EU disaster response. In: de Guttry A et al (eds) International disaster response law. T.M.C. Asser Press, The Hague, pp 129–154
Christiansen T (2012) The European Union after the Lisbon Treaty: an elusive ‘Institutional Balance’? In: Biondi A et al (eds) EU law after Lisbon. Oxford University Press, New York, pp 228–247
Conforti B (2011) Consistency among treaty obligations. In: Cannizzaro E (ed) The law of treaties beyond the Vienna convention. Oxford University Press, New York, pp 187–191
Constantinesco V (2006) L’équilibre institutionnel dans la constitution de l’Union Européenne. In Raux J (liber amicorum) (ed) Le droit de l’Union Européenne en principes. Apogée, Rennes, pp 481–491
Constantinesco V, Petculescu I (2005) La personnalité de l’Union. In: Constantinesco V et al (eds) Le Traité Etablissant une Constitution pour l’Europe. Presses Universitaires de Strasbourg, Strasbourg, pp 65–78
Cremona M (2008) Coherence through law: what difference will the Treaty of Lisbon make? Hamburg Rev Soc Sci 3:11–36
Den Hertog L, Stroß S (2013) Coherence in EU external relations: concepts and legal rooting of an ambiguous term. Eur Foreign Aff Rev 18:373–388
Duke S (2012) The European External Action Service: antidote against incoherence? Eur Foreign Aff Rev 17:45–69
Duke S, Blockmans S (2010) The Lisbon Treaty stipulations on development cooperation and the Council Decision of 25 March 2010 (Draft) Establishing the Organisation and Functioning of the European External Action Service. European Institute of Public Administration. http://www.eipa.nl/en/news/show/&tid=333
Dusepulchre G (2008) Dimension Politique de la Politique Communautaire de Coopération au Développement, quelle Cohérence? In: Dony M, Rossi LS (eds) Démocratie, Cohérence et Transparence: Vers une Constitutionnalisation de l’Union Européenne? Editions de l’Université de Bruxelles, Bruxelles, pp 265–286
Edwards G (1998) Common foreign and security policy: incrementalism in action? In: Koskenniemi M (ed) International law aspects of the European Union. Martinus Nijhoff, Leiden, pp 3–18
Franklin CNK (2011) The burgeoning principle of consistency in EU law. Yearbook Eur Law 30:42–85
Gatti M (2012) The role of the European External Action Service in the external dimension of the area of freedom security and justice. In: Flaesch-Mougin C, Rossi LS (eds) La dimension extérieure de l’espace de liberté, de sécurité et de justice après le Traité de Lisbonne. Bruylant, Bruxelles, pp 171–193
Gatti M, Manzini P (2012) External representation of the European Union in the conclusion of international agreements. Common Mark Law Rev 49:1703–1733
Gauttier P (2004) Horizontal coherence and the external competences of the European Union. Eur Law J 10:23–41
Gosalbo Bono R (2006) Some reflections on the CFSP legal order. Common Mark Law Rev 43:337–394
Grant C (2013) The European External Action Service. Centre for European Reform. http://www.cer.org.uk/sites/default/files/publications/attachments/pdf/2013/bal_comp_cg_eeas_15march13-7094.pdf
Guest S (2012) Ronald Dworkin. Stanford University Press, Stanford
Hillion C (2012) Cohérence et action extérieure de l’Union Européenne. EUI Working Paper. http://cadmus.eui.eu/handle/1814/22354
House of Lords (2013) The EU’s External Action Service. 11th Report of Session 2012–13. The Stationery Office, London
Jacqué J-P (2004) The principle of institutional balance. Common Mark Law Rev 41:383–391
Mekonnen DR (2010) The Draft Council Decision on the establishment of the European External Action Service and its compliance with the Lisbon Treaty: European solidarity towards equal participation of people. http://www.eurostep.org/wcm/dmdocuments/Mekonnen_Legal_Opinion_100511.pdf
Mignolli A (2009) L’azione esterna dell’UE e il principio della coerenza. Jovene, Naples
Neframi E (2009) Exigence de cohérence et action extérieure de l’Union Européenne. In: Michel V (ed) Le droit, les institutions et les politiques de l’Union Européenne face a l’imperatif de la cohérence. Presses Universitaires de Strasbourg, Strasbourg, pp 49–80
Outrey A (1953) Histoire et principes de l’administration française des affaires etrangères. Revue française de science politique 2:298–318
Portela C, Raube K (2009) (In-)coherence in EU foreign policy: exploring sources and remedies. Paper Presented at the European Studies Association Biannual Convention. http://aei.pitt.edu/33122/1/portela._clara_(2).pdf
Schiavello A (2001) On ‘Coherence’ and ‘Law’: an analysis of different models. Ratio Juris 14:233–243
Stroß S (2012) Programming financial instruments post-Lisbon: the European External Action Service and the new institutional architecture of EU external action. Paper for the conference ‘The European Union in International Affairs III’, Vrije Universiteit Brussel, 3–5 May 2012
Tannous I (2013) The programming of EU’s external assistance and development aid and the fragile balance of power between EEAS and DG DEVCO. Eur Foreign Aff Rev 18:329–354
Tietje C (1997) The concept of coherence in the Treaty on European Union and the common foreign and security policy. Eur Foreign Aff Rev 2:211–233
Van Elsuwege P (2010) EU external action after the collapse of the pillar structure: in search of a new balance between delimitation and consistency. Common Mark Law Rev 47:987–1019
Van Reisen M (2010) Note on the legality of inclusion of aspects of EU development cooperation and humanitarian assistance in the European External Action Service (EEAS). Europe External Policy Advisors. http://www.eepa.be/wcm/dmdocuments/EEPA_briefing_paper_EEAS.pdf
Van Vooren B (2011) A legal-institutional perspective on the European External Action Service. Common Mark Law Rev 48:475–502
Wouters J et al (2013) The organisation and functioning of the European External Action service: achievements, challenges and opportunities. European Parliament. http://www.europarl.europa.eu/committees/en/studiesdownload.html?languageDocument=EN&file=90650
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2014 Springer International Publishing Switzerland
About this chapter
Cite this chapter
Gatti, M. (2014). Coherence vs. Conferred Powers? The Case of the European External Action Service. In: Rossi, L., Casolari, F. (eds) The EU after Lisbon. Springer, Cham. https://doi.org/10.1007/978-3-319-04591-7_10
Download citation
DOI: https://doi.org/10.1007/978-3-319-04591-7_10
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-04590-0
Online ISBN: 978-3-319-04591-7
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)