The External Powers of the EU
TAMARA ĆAPETA
JEAN MONNET CHAIR
FACULTY OF LAW, UNIVERSITY OF ZAGREB
2014
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 Treaty
 Untill Lisbon treaty, European Communities had
legal personality
 Legal personality means, among other, that EU is
legal subject in international relations
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
Principle of conferral in 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 TFEU
1. 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
 2 separate questions:

Has the EU external power in certain field?

Is this power exclusive or shared?
Does the EU possess implied power ?
 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
 In some areas in which power is expressly provided, the
Treaty expressly provided for exclusivitiy (eg. Customs
treaties)
 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?
 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
 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.”
Case-law after the Lisbon Treaty
 Opinion 1/13
– confirmation of the continuation of the ERTA case
law
 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 not to influence EU
internal policies
Parallel powers
 In certain areas, powers of the EU and of the
Member States exist simoultaneously:

Development policy

Humanitarian aid
Political importance of shared powers
 Justification for conclusion of mixed agreements
 Mixed Agreements: international agreements in
which both 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
Procedure for signing international agreements
 Article 218 TFEU
 Actors:
 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
Importance of the EU external dimension
“To foster growth, the EU must encourage trading in open,
fair markets worldwide, within a rule-based international
framework.”
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Thus, Strategy 2020 necessarily also has its external
dimension:
International trade relations organised via multilateral and
bilateral trade agreements and participation in
international trade organisations (WTO)
Externalising certain aspects of EU internal policies (as
energy, environmental protection, R&D, agriculture,
transport)
Providing aid to developing countries
Participation in economic and financial international fora,
such as G7, G 20
Multiannual financial framework 2014-2020
External 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):
European Neighbourhood Instrument (ENI):
Development Cooperation Instrument (DCI):
Partnership Instrument (PI):
Instrument contributing to Stability and Peace
(IfSP):
 European Instrument for Democracy & Human
Rights (EIDHR):

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€11,699 million
€15,433 million
€19,662 million
€955 million
€2,339 million
€1,333 million
Conclusions
 EU has wide external powers, which allow it to
pursue its economic interests on the global scene
 Eg. TTiP (the Transatlantic trade and Investment
Prtnership)
– currentlly 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