Structural Principles in EU External Relations Law
Seminar Spring 2014
Marise Cremona
4.
Equality and the rule of law
4 February 2014
Here we have two of the ‘values’ included in Article 2 TEU as common to the Member States
and as the foundation of the Union, which are to be upheld and promoted by the Union
(Article 3(5) TEU) and which are also principles which guide the EU’s external action
(Article 21(1) TEU).
There are two contexts in which we can examine these values / principles, which can be
summarised in the words ‘promote’ and ‘uphold’. They are values to be exported
(promoted) to third country partners, who may share those values (Articles 8 and 21(1)
TEU). In this sense they are an objective of external action (see Article 21(2) TEU). But they
are also principles which guide the actions of the Union itself; the Union is bound to respect
(uphold) these values in its conduct of foreign policy (c.f. Kadi I). In this sense they may be
seen as structural principles. At one level this is the proverbial (but none the less important)
‘the EU should practice what it preaches’. It is certainly true that it is not always easy to
separate the two dimensions; the law-based character of the EU as an international actor is
reflected in its promotion of the rule of law and its promotion of ‘an international system
based on stronger multilateral cooperation and good global governance’. Herlin-Karnell
refers to the rule of law as ‘the main constitutional virtue in EU law’.
Reading:
C-122/95 Germany v Council [1998] ECR I-973
C-366/10 The Air Transport Association of America and Others, judgment of 21 December 2011.
L Pech, ‘The Rule of Law as a Guiding Principle of the EU’s External Action’ CLEER
Working Papers 2012/3.
E Herlin-Karnell, ‘EU Values and the Shaping of the International Legal Context’ in D
Kochenov and F Amtenbrink (eds) The European Union’s Shaping of the International Legal
Order, CUP 2014.
Additional reading:
J Scott, ‘Extraterritoriality and Territorial Extension in EU Law’ American Journal of
Comparative Law, Vol. 62, No. 1, 2014. Available at SSRN: http://ssrn.com/abstract=2276433
L Pech, ‘”A Union Founded on the Rule of Law”: Meaning and Reality of the Rule of Law as
a Constitutional Principle of EU Law’ (2010) 6 European Constitutional Law Rev 359.
N Hachez & J Wouters ‘Promoting The Rule Of Law: A Benchmarks Approach’ Leuven
Centre for Global Governance Studies Working Paper No. 105 – April 2013.
H Sjursen, Integration Without Democracy? Three Conceptions of European Security Policy
in Transformation, ARENA Working Papers 2008/7.
B Tamanaha, On the Rule of Law. History, Politics, Theory Cambridge University Press 2004.
5. Effet utile
11 February 2014
Effet utile has been an important interpretative principle of EU external relations law and
could be said to bridge the gap between the principle of conferral and the EU’s objectives.
Examples of its application include:
 the doctrine of implied powers (case 22/70 Commission v. Council - AETR [1971] ECR 263 and see now Article 216 TFEU);
 Opinion 1/78 on the interpretation of the common commercial policy;
 Kadi I on the legal basis of counter-terrorist sanctions;
 the doctrine of exclusivity (e.g. Opinion 1/03 para 133; and see also AETR, paras 84-87);
 the interpretation given to Art 351 TFEU in the BITS cases (e.g. C-118/07 Commission v
Finland (BITS) [2009] ECR I-10889);
 the interpretation and direct effect of international agreements.
We should distinguish between effet utile or effectiveness as a legal principle of
interpretation and compliance, and effectiveness as a yardstick or measure of EU external
policies or action (e.g. How effective is conditionality?).
What are the implications of the fact that external treaty objectives are orientating,
aspirational and progressive, rather than providing a telos or end-goal (compare internal
objectives)?
Reading:
C- 240/09 Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej
republiky, [2011] ECR I-1255.
C-221/11 Demirkan, judgment 24 September 2013.
C-431/11 UK v Council, judgment 26 September 2013.
M Mendez, ‘The Enforcement of EU Agreements: Bolstering the effectiveness of Treaty law?’
(2010) 47(6) Common Market Law Review 1719.
[see also by Mendez, The Legal Effects of EU Agreements: Maximalist Treaty Enforcement and
Judicial Avoidance Techniques, Oxford University Press 2013]
6. Unity in international representation, mutual solidarity & the principle of loyal cooperation
18 February 2014
The principles of loyal cooperation and mutual solidarity find expression in the Treaties: Art
4(3) TEU; Art 24(3) TEU. Art 24(3) is specific to the CFSP; how does it relate to Art 4(3)? Note
that whereas Art 4(3) may be enforced by the Court of Justice, compliance with Art 24(3) is
to be ensured by the Council and High Representative, thus it is a political enforcement.
The principle of loyal cooperation appears, especially in Art 4(3), to refer to the obligations
of the Member States towards the Union. Mutual solidarity appears to operate between the
Member States themselves (cf Art 222 TFEU); it is an expression of the mutual trust that is so
important in the internal operation of the EU. See for example Art 31(1) TEU (constructive
abstention).
To what extent could we argue for the existence of a principle of mutual solidarity also
applying to the EU with respect to the Member States? See for example with respect to
Member States’ obligations under international treaties to which the EU is not a party, Kadi I
at paras 293-296 and C-308/06 Intertanko at paras 47-52.
The PFOS case discussed by De Baere (see also Delgado Casteleiro & Larik and Cremona in
Additional Reading) concerns the scope of application and the extent of the principle of
loyal cooperation; does the Court’s ruling in this case blur the distinction between loyal
cooperation in cases of shared competence and pre-emption – also based on Art 4(3) TEU?
What – if anything – does the principle (or requirement) of unity in the international
representation of the EU add to this? The Court uses the word ‘principle’ in relation to unity
for the first time in the PFOS case, but this may not have any strong significance. Unity and
the duty of cooperation have been applied in particular to the obligations on the Member
States in exercising their own external competence, for an example as parties to mixed
agreements (see Hillion).
To what extent should unity be treated as an end in itself – which would be implied by
characterising it as a principle – as opposed to one aspect of the duty of loyal cooperation
and a means to achieve the principle of effectiveness?
Reading:
D Halberstam, ‘Beyond Competences: Comparative Federalism and the Duty of
Cooperation’ unpublished presentation at Towards a European Constitution: from the
Convention the IGC and Beyond, The Federal Trust, Goodenough College, London, July 1-2,
2004. [A different version appeared as ‘Of Power and Responsibility: The Political Morality
of Federal Systems’ (2004) 90 Virginia Law Review 732]
C Hillion, Mixity And Coherence in EU External Relations: The Significance of the Duty of
Cooperation CLEER Working Paper 2009/1 (also published in C Hillion and P Koutrakos (eds)
Mixed Agreements Revisited - The EU and its Member States in the World, Hart Publishing 2010).
G De Baere, ‘O, Where is Faith? O, Where is Loyalty? Some Thoughts on the Duty of Loyal
Co-operation and the Union’s External Environmental Competences in the light of the PFOS
Case’ (2011) 36 ELRev 405.
F Casolari, The principle of loyal cooperation: A ‘master key’ for EU external representation?
in S Blockmans and R Wessel (eds), Principles and Practices of EU External Representation,
CLEER Working Papers 2012/5.
Additional reading:
E Neframi, ‘The Duty of Loyalty: Rethinking its scope through its application in the field of
EU external relations’ (2010) 47 Common Market Law Review 323.
A Delgado Casteleiro & J Larik, ‘The duty to remain silent: limitless loyalty in EU external
relations?’ (2011) 36 European Law Rev 524.
M Cremona Comment on Case C-246/07 Commission v Sweden, judgment 20 April 2010
(Grand Chamber), (2011) 48 Common Market Law Review 1639-1666.