Structural Principles in EU External Relations Law
Seminar Spring 2014
Marise Cremona
The law and practice of EU external relations is governed not only by general objectives (Articles 3(5)
and 21 TEU and Article 205 TFEU) and values (Article 2 TEU) but also by a set of principles, found in
the Treaties and developed by the Court of Justice, which structure the system, functioning and
exercise of EU external competences (c.f. Article 1 TFEU). This seminar will examine to what extent it
is possible to identify a set of ‘structural principles’ as a legal norm-category governing EU external
relations, and explore the content of the principles that may be categorised as structural.
1. What are structural principles?
14 January 2014
In this first seminar we will consider the term ‘structural principles’. To what extent can they be
differentiated from objectives, values, general principles of law, and ‘rules and procedures’ (c.f. Art
24(1) TEU)?
How similar are they to Von Bogdandy’s ‘founding principles’? What are their sources?
Do you find Thies’ categorisation of general principles (interpretive, benchmark, organisational)
helpful?
Thym’s chapter will give a useful orientation / overview of principles relevant to external relations;
several issues raised here will be returned to later in the seminar.
If you have time read part IV of Hillion’s chapter on the application of principles to the CFSP.
Reading:
Armin Von Bogdandy, ‘Founding Principles of EU Law: A Theoretical and Doctrinal Sketch’ (2010) 16
European Law Journal 95.
Anne Thies ‘General principles in the development of EU external relations law’ in M Cremona and A
Thies (eds) The European Court of Justice and External Relations Law - Constitutional Challenges,
forthcoming, Hart Publishing.
Daniel Thym, ‘Foreign Affairs’ in A von Bogdandy and J Bast (eds), Principles of European
Constitutional Law 2nd ed., Hart Publishing 2010.
Additional reading:
Christophe Hillion, A Powerless Court? The European Court of Justice and
the Common Foreign and Security Policy’ in M Cremona and A Thies (eds) The European Court of
Justice and External Relations Law - Constitutional Challenges, forthcoming, Hart Publishing - part IV,
on application of principles to CFSP.
A von Bogdandy, ‘Founding Principles’ in A von Bogdandy and J Bast (eds) Principles of European
Constitutional Law Hart Publishing, 2010.
2. The principle of Conferral
21 January 2014
The principle of conferral applies to the Union (Articles 3(6), 5(1) and 7 TFEU) and to the institutions
(Art 13(2) TFEU).
De Baere & Gutman offer a comparative analysis of allocation of external relations competence in
the EU and the US.
Despite the emphasis on the principle of conferral in the Lisbon Treaty, and its importance in theory
when considering the nature of the EU as an international actor, how important is it in practice?
When has the CJEU ever held that the EC/EU lacked competence in an external relations context?
Consider the legal contexts in which the principle of conferral is relevant.
We will take a couple of practical examples, the first on the scope of Article 215 TFEU (smart
sanctions) and the second on the Commission’s implementing powers as regards development
cooperation.
Reading:
G De Baere, K Gutman, ‘Federalism and International Relations in the European Union and the
United States: A Comparative Outlook’, in E Cloots, G De Baere, S Sottiaux (eds), Federalism in the
European Union, Hart Publishing 2012.
T-200/11 Al Matri v Council, judgment of 28 May 2013.
Council Decision 2011/72/CFSP of 31 January 2011 concerning restrictive measures directed against
certain persons and entities in view of the situation in Tunisia OJ L 28, 2.2.2011, p. 62.
Council Implementing Decision 2011/79/CFSP of 4 February 2011 implementing Decision
2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view
of the situation in Tunisia OJ L 31, 5.2.2011, p. 40.
Council Regulation 101/2011/EU of 4 February 2011 concerning restrictive measures directed
against certain persons, entities and bodies in view of the situation in Tunisia OJ L 31, 5.2.2011, p. 1.
(c.f. also Council Implementing Regulation 735/2013/EU of 30 July 2013 and case T-545/13 Al Matri v
Council, action brought on 8 October 2013).
Council Notice for the attention of the persons to whom restrictive measures provided for in Council
Decision 2011/72/CFSP and Council Regulation (EU) No 101/2011 concerning restrictive measures
directed against certain persons, entities and bodies in view of the situation in Tunisia apply OJ 2013
C 373/07.
C-403/05 European Parliament v Commission [2007] ECR I-9045.
M Cremona, Annotation of case C-403/05 European Parliament v Commission (Philippines Border
Management Project), (2008) 45 Common Market Law Rev 1727.
Additional reading:
I Govaere, ‘Multi-faceted Single Legal Personality and a Hidden Horizontal Pillar: EU External
Relations Post-Lisbon’ (2010-2011) 13 Cambridge Yearbook of European Legal Studies 94.
3. Subsidiarity and proportionality
28 January 2014
Article 5 TEU: when and how to exercise competence.
The ‘external aspects of [the Union’s] other policies’ (Article 21(3) TEU) implemented through EU
legislation are governed by the principles of subsidiarity and proportionality in the same way as
other legal acts: for an example see C-411/06 Commission v European Parliament & Council and the
reference to both principles in the preamble to Reg.1013/2006.
But how should these principles apply to external policy fields, and to international agreements?
How does the possibility of mixed agreements affect the principle of subsidiarity?
In C-130/10 European Parliament v Council, the European Parliament claimed that subsidiarity and
proportionality do not apply to the CFSP in support of its argument for a non-CFSP legal basis (para
32). This aspect of the EP’s argument was ignored by the CJ. Was the EP correct?
The sanctions cases are good examples of the application of proportionality in a foreign policy
context.
Reading:
C-130/10 European Parliament v Council, judgment 19 July 2012.
C-150/94 UK v Council [1998] ECR I-07235.
C-547/10 P Confédération Suisse v European Commission, judgment of the Court of 7 March 2013.
C-266/05 P Sison v Council [2007] ECR I-1233.
C-584/10P Kadi II, judgment 18 July 2013.
T-35/10 Bank Melli Iran, judgment 6 September 2013, esp. paras 64-75 and 177-185.