Prof. Pieter Jan KUIJPER
Connected or Disconnected?
The EU and International Law
Lecture I – Introduction/EU Foreign Affairs Governance
Connected or Disconnected: the Question.

Where does the EU stand on the continuum?
 “A new legal order of international law”


“A new legal order”


Case 26/62 Van Gend en Loos
Case 6/64 Costa – ENEL
A legal order outside international law?

Case C-402/05 P Kadi v Council

Case C-459/03 Comm v Ireland (MOX Plant)
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To answer that first question, what other
questions to ask?


Has the EU legal order evolved in a way so as
to keep itself separate from international law?
What is the place of international law in the EU
legal order? (internal aspect). Lecture 2-3.
Has the EU insisted on special treatment in
international legal relations and have other
actors accepted that claim? Has the EU gone
too far in its exceptionalism? Lecture 3-6.
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What are the preliminary issues?

What are the characteristics of the EU system?
 In general?
In the field of “foreign affairs”?
From which perspective?
 The relationship EU - MS : “Federalism”



The relationship between the Institutions: The “Trias
Politica”

The special character of foreign relations.

The evolution of foreign relations over 50 years of EC/EU.
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The characteristics of the EU system.

Where does the EU stand on a federalism
scale? Compare with the US.

Separate “federal”/EU law?

Separate “federal”/EU institutions?

How is EU law implemented and by whom? By “EU
institutions” or by Member State institutions?

The leading principle: subsidiarity –art 5 TEU L

How is the unity of “federal”/EU law secured?
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The characteristics of the EU system 2

Articles 2+3 TEU L. The ideals of the EU.

Normally they require a separation of powers.

Does such separation exist in Int. Organizations?

ECJ always very circumspect: “balance beteen institutions”

This is no longer justified, if you look at the Treaty of Lisbon.

New provision on delegation of legislative power (art. 290
TFEU) and conferral of implementing powers(art. 291 TFEU)

Sufficient separation between the legislative, the executive,
and the judiciary? Link with “federalism”….
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The special character of foreign relations.

Foreign Relations and Federalism

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
US v Curtiss-Wright Export Corp. (1936)
“The two classes of powers are different, both in tespect of their origin and their
nature. The broad statement that the federal government can exercise no powers
except those specifically enumerated in the Constitution, and such implied powers
as are necessary and proper to carry into effect the enumerated powers, is
categorically true only in respect of our internal affairs……”
“The powers to declare and wage war, to conclude peace, to make treaties, to
maintain diplomatic relations with other sovereignties, if they had never been
mentioned in the Constitution, would have vested in the federal government as
necessary concomitants of nationality.”
“The President is the constitutional representative of the United States with regard
to foreign nations.”
No full parallel with EU situation intended; just strong pronouncement on an
important problem.
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The special character of foreign relations 2

Foreign Relations and the Trias Politica

Goldwater v Carter (1979)


“I am of the view that the basic question presented by petitioners in this case
is ‘political’ and therefore, non-justiciable because it involves the authority of
the President in the conduct of our foreign relations and the extent to which
the Senate or the Congress is authorized to negate the action of the
President” (Rehnquist)
“Prudential considerations persuade me that a dispute between Congress and
the President is not ready for judicial review unless and until each branch has
taken action asserting its constitutional authority… If Congress…. had
[formally] challenged the President’s authority to terminate the treaty with
Taiwan……it would be the duty of this Court to resolve the issue.” (Powell)
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The foreign relations revolution

Character of Foreign Relations has changed

Information revolution

Expansion of expertise – Think tanks etc.

Greater coverage: no longer “high politics” alone. For the
EU this meant no longer “low politics” alone: CFSP

Democratization of foreign relations: e.g. Trade policy.

One “political line” more difficult to hold: Coherence!
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Interim Summary

Influence of the following factors on the
historical development of EC/EU foreign
relations.

Executive and co-operative federalism

Separation of powers

The special character of foreign affairs

Separation “high” and “low” foreign affairs

“Revolution” in foreign affairs
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The Lisbon Treaty
Article 1 TEU
 By this Treaty, the HIGH CONTRACTING PARTIES establish
among themselves a EUROPEAN UNION, hereinafter called
"the Union" on which the Member States confer competences
to attain objectives they have in common.
………
 The Union shall be founded on the present Treaty and on the
Treaty on the Functioning of the European Union (hereinafter
referred to as "the Treaties"). Those two Treaties shall have
the same legal value. The Union shall replace and succeed
the European Community.
Article 47 TEU
 “The Union shall have legal personality.”
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Other Fundamentals

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
Recall Articles 2 and 3 TEU (discussed earlier).
Article 4 TEU: Respect for the Member States,
their national identities, fundamental structures
and essential State functions.
Principles of conferral, subsidiarity and
proportionality (Article 5 TEU).
Charter of Human Rights incorporated (Art. 6).
Accession to the ECHR (Art. 7 TEU).
Consequences of all this for Foreign Relations?
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Coherence between all aspects of
foreign relations.

Article 21 embodies this aspiration.

The World a bigger EU? (para. 1)

Mixture of CFSP goals (para. 2a,b.c and h) and “old
EC” objectives (para. 2d,e,f,g, and h).

To be carried out under “this Title” of the TEU and by
the new Part V of the TFEU.
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CFSP






Broad power covering all aspects of foreign
policy and progressive development of common
defence policy.
Binding decisions, strong loyalty clause, but…
Unanimity. No legislation, no preemption.
No infringement procedure
Reduced roles of Commission and Parliament
No judicial control by the Court (Art. 24(1) TEU)

Except:

Border line between TEU and TFEU (Art. 40 TEU)

Sanctions against individuals (Art. 275 TFEU
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The “Institutions” of the CFSP

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The European Council.
The President of the European Council.
The Council of Ministers.
Political and Security Committee.
The High Representative.
Special Representatives.
European External Action Service.
Union delegations.
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Fundamentals of the TFEU (art. 2 and 3)


Exclusive, shared and supportive powers.

Preemption in the area of shared powers.

No harmonization in areas of supportive powers.
Exclusive powers in foreign relations.

Monetary policy

Common commercial policy

Conservation of the marine biological resources in the
common fisheries policy.
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Additional Exclusive Power in Treatymaking

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.”

Taken from existing case law

Case 22/70 (AETR), Opinions 1/76 and 1/94
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The Union’s External Action
TFEU Part V



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Common Commercial Policy
Development Cooperation
Economic, Financial and Technical Cooperation
Humanitarian Aid
Restrictive Measures
International Agreements
Union’s Relations with I.O.’s, Third Countries
and Union Delegations.
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Treaty-making power

Article 216 TFEU:

“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.”

What is the relation with Article 3(2) TFEU ?
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Characteristics of the EU External
Action.

Normal “Community” governance.

“Normal” role Commission + external representation

QMV in the Council in principle.

Increased and now “normal” role of Parliament.

“Normal” role of the EU Courts

Legislation.

In areas of shared competence, there is preemption
through the AETR doctrine as codified.

Agreements are binding on the Member States.
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Tension between CFSP and rest of
External Action in the age of coherence.

Best expressed in the Treaty-making procedure
of Article 218 TFEU.

Provisions on the opening of the negotiation (Article
218, para 3).

Provisions on the conclusion of the agreement (art.
218, para. 6).

Relation with Article 40 TEU?

Binding agreements. Role of the Court?
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Conclusions on the post –Lisbon in
foreign affairs.




Executive Federalism placed into sharper focus.
Separation of powers has become clearer.
The special character of foreign affairs,
especially “high” foreign affairs continues to be
emphasized by the “One Union; two treaties
situation.”
“Revolution in foreign affairs” has had a
pervasive influence on all of it.
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