European Union for some years has been preoccupied with strengthening and highlighting its international role and identity. Until recently, the complex three-pillar structure governing EU international relations significantly hindered this endeavour. However, Lisbon Treaty brought several important changes in the field of EU external relations.
One of the most important changes brought by the Lisbon Treaty in this regard is Article 47 of TEU, which declares that EU has legal personality, giving formal status to EU as an actor in international relations. Then, several other changes were introduced, like creation of the High Representative of the Union, which is charged with coordinating and carrying out the EU’s foreign and security policy; or creation of European External Action Service, integrating civil servants and diplomats from the Commission, Council and Member States. Finally, an important step was taken by the Treaty, trying to codify parts of the ECJ’s case law on implied external powers.
One of the crucial issues for the conduct of EU international relations is effective coordination across many dimensions and levels. This includes coordination across policy fields, coordination between EU and the Member States, and coordination at the level of international representation. Consistency across and between policies has become an important requirement of EU external relations. In an EU of 28 members with several applications for membership pending, the problem of coordinating the EU’s international relations, the problem of effective international law-making and the ambition of presenting a single face to the outside world become increasingly challenging.
One of the main challenges with regard to external relations of the Union is the competences. While Article 3 TFEU confers exclusive competences to the EU, including customs union, political dialogue etc., most of other competences remain shared with Member States, and are executed mostly by so-called mixed agreements. Mixed agreements are a very common EU phenomenon, and they are agreements to which both EU and Member States are contracting parties on the basis that their joint participation is required, because not all matters covered by the agreement fall exclusively within EU competence or exclusively within Member States competence. Therefore, the very first step on dealing with external policy is to distinguish between competences and to identify who is competent to act for the subject matter.
Except competences, there are several other important issues which need attention. Two of the most important and complex issues with regard to EU external relations are international agreements and EU representation in international organizations.
EU and International agreements: who does what?
In principle, it is the Commission who negotiates the international agreements (Article 17(1) TEU), and it is the Council who conclude them. Article 218 TFEU regulates the procedural steps for the conclusion of an agreement by the EU, and regulates as well the tasks of each of the EU institutions involved in this process.
First, it is the Council who shall authorise the opening of negotiations, adopt negotiating directives, authorise the signing of agreements and conclude them, as foreseen in Article 218(2) TFEU.
Then, according to Article 218(3) TFEU, the Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or head of the Union’s negotiating team.
Further, the Council may address directives to the negotiator and designate a special commit- tee in consultation with which the negotiations must be conducted (Article 218(4) TFEU).
Then, as regulated in Article 218(5) TFEU, the Council, on a proposal by the negotiator, shall adopt a decision authorising the signing of the agreement and, if necessary, its provisional application before entry into force.
After this, the European Parliament gives its consent in cases foreseen in Article 218(6) TFEU. The European Parliament and the Council may, in an urgent situation, agree upon a time-limit for consent. The European Parliament shall deliver its opinion within a time-limit which the Council may set depending on the urgency of the matter. In the absence of an opinion within that time-limit, the Council may act.
As a general rule, the Council should act with a qualified majority during this procedure. However, Article 218(8) TFEU introduces some exceptions from this general rule. The Council shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of a Union act as well as for association agreements and the agreements referred to in Article 212 TFEU with the States which are candidates for accession.
As Article 218(10) describes, the European Parliament shall be immediately and fully informed at all stages of the procedure.
Regarding role of High Representative and the European External Action Service, it is important to mention Article 27 TEU. Even that the role of HR is bigger in CFSP than in ACP, the HR still can conduct political dialogue with third parties on the Union’s behalf and shall express the Union’s position in international organisations and at international conferences (Article 27(2) TEU).
Representation of EU in international organizations: who speaks in the name of EU?
With the Treaty of Lisbon, the previous three pillar structure has been replaced by the EU which has been explicitly granted a single international legal personality (Article 47 TEU). On this basis, the EU can, within the ambit of its competences, exercise rights and assume obligations towards other international subjects (States and international organisations).
Generally speaking, there is no Treaty provision regulating possible EU membership of an international organization. However, Lisbon Treaty contains an Article on the Union’s relations with international organizations and third countries and Union delegations. Article 220(1) TFEU provides that ‘’ the Union shall establish all appropriate forms of cooperation with the organs of the United Nations and its specialised agencies, the Council of Europe, the Organisation for Security and Cooperation in Europe and the Organisation for Economic Cooperation and Development.’’
Even though there are assumptions that there are not enough legal provisions to regulate the EU external representation in details, it is fact that EU is already represented in many international organizations, like United Nations and others.
When it comes to representation, prior to the external representation, it is necessary to establish a position of the Union through the proper EU internal decision making process. The determination of an EU position, and the modalities which govern its adoption, depend on the purpose of the meeting contemplated and whether it is called to adopt an act having legal effect or not.
At ministerial level, the representation of the EU often goes beyond the mere presentation of the EU position, and includes the task of chairing or co-chairing the meeting. Whilst chairing should normally be ensured by the High Representative, the presentation of EU positions should be attributed according to the division of competences in the external representation: CFSP or non-CFSP. If a meeting in the framework of a ‘mixed agreement’ touch upon issues which fall within sole national competence, it is for the Member States to present their views on these issues. They may request one of the Member States to represent them (usually the Member State holding the Presidency of the Council), but they may also entrust this task to the High Representative or the Commission.
In general, the EEAS, in close cooperation with the Commission services, is responsible for organising meetings with partner countries at all levels. This includes setting the agenda, ensuring participation, preparing minutes, etc. The EEAS coordinates these preparations with all relevant Commission services and any other relevant EU bodies (e.g. agencies, other institutions, etc.). In meetings where both CSFP and non-CSFP issues are addressed, the High Representative takes the lead on both parts of the agenda39 but will normally ask the relevant Commissioner to take the floor when issues of his/her portfolio responsibilities are at stake (e.g. enlargement, development, trade, neighbourhood).
As stated earlier, Article 220 TFEU provides the basis for relations between the EU and the United Nations (UN), its specialised agencies (such as WHO, FAO, etc.) as well as any other international organisation40.
It assigns the task of implementing this provision to the HR/VP and the Commission.
At the UN and its specialised agencies, the Council of Europe, the OECD, the OSCE, and the African Union, the Union is represented by EU Delegations, which operate under the authority of the High Representative and have been integrated into the EEAS (Article 221 TFEU; Article 5 of the EEAS Decision).
As can be seen, the whole structure of EU external relations is rather complicated. So far, there are several opinions with regard to EU as global actor: the positive ones, appreciating the role of EU as peace-maker and good trade partner, and the negative ones, criticising the EU for slow reactions and complex procedures to act when it comes to urgent matters, like Eurocrisis or conflicts like the one in Ukraine.
Hence, it is rather difficult to measure the effectiveness of the external policy of EU. Lisbon Treaty introduced several provisions to enhance and streamline the EU’s global profile and role. Only time and political practice will reveal whether these innovations have succeeded in strengthening the EU as an international actor.
Author: Artan Murati