The External Powers of the EU
TAMARA ĆAPETA
JEAN MONNET CHAIR
FACULTY OF LAW, UNIVERSITY OF ZAGREB
2015
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
Objectives of EU external action
 Principles and objectives stated in Article 21 TEU
 They relate to the entire EU (supranational and
CFSP):
 Article 21/3:
“The Union shall respect the principles and pursue
the objectives set out in paragraphs 1 and 2 in the
development and implementation of the different
areas of the Union's external action covered by this
Title and by Part Five of the Treaty on the
Functioning of the European Union, and of the
external aspects of its other policies.”
Principle of conferral
 EU has powers to regulate only those relations for
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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
Choice of legal basis is subject to judicial review
Difference ‘ordinary’ external relations and CFSP
 Principle of conferral applies to both ‘ordinary’
external relations and the CFSP
 International action, including an international
treaty signed by the EU must demonstrate legal basis
 Procedure for signing, implementation and the legal
effect of international agreement within the
supranational pillar and the CFSP differ
CFSP v supranational pillar
 Since Lisbon Treaty, no specific objectives of CFSP
 Article 24/1 TEU:
“The Union's competence in matters of common
foreign and security policy shall cover all areas of
foreign policy and all questions relating to the
Union's security, including the progressive framing
of a common defence policy that might lead to a
common defence.”
 Since Lisbon, no preference for either method
(Article 40 TEU) – complicates judicial review of
proper choice of legal basis
Principle of conferral in (not CFSP) 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
 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
 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?
 When thus provided in the Treaty (eg. customs treaties, CCP, monetary issues
for euro countries …)
 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
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If an agreements contains rules which could affect internally adopted
common rules (Open Sky cases)
If internal rules largely regulate the area covered by an international
agreement (2/91 ILO Convention on Chemicals)
If secondary law provides that the EU will regulate relations with third states
(1/03 – Lugano Convention)
 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.”
Consequences of the existence of exclusive power
 Only EU can in such case negotiate and sign an
international agreement
 If the Member States entered into agreements within
the areas of EU exclusive competence, they have the
obligation to cancell such agreements according to
the rules of international law
 Example: Open skies cases
Shared powers – examples
 When thus provided by the Treaty
 E.g. Article 191/4 TFEU (environment) :
“Within their respective spheres of competence, the
Union and the Member States shall cooperate with
third countries and with the competent international
organisations. The arrangements for Union
cooperation may be the subject of agreements
between the Union and the third parties Concerned.”
Shared powers – examples
 When the EU has not yet adopted detailed rules in the
area covered by an international agreement
 When the agreement to be signed regulates issues which
fall both under the EU and under the Member State
competences (SAAs; 1/78 Natural Rubber Agreement)
 Whe the EU has only power to enact minimum rules, and
the Member States are entitled to keep higher standards
(1/91 ILO Convention on Chemicals at Work)
 When an area is parallelly regulated by both the EU and
theMS (e.g. trademarks)
Concurrent and Parallel Powers
 Shared powers are concurrent powers – this means
that Member States’ action is prevented if the EU has
signed an international agreement
 In certain areas, powers of the EU and the Member
States can be exercised simultaneously – parallel
powers:
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Development policy
Humanitarian aid
Research, space
Political importance of shared powers
 Justification for conclusion of mixed agreements
 Mixed Agreements: international agreements in
which both the 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
Obligation to cooperate
 When the power is shared, the EU and the MSs must
cooperate
 This is sometimes expressly provided for by the Treaty:
e.g. Article 210 TFEU (development cooperation)
“1. In order to promote the complementarity and
efficiency of their action, the Union and the Member
States shall coordinate their policies on development
cooperation and shall consult each other on their aid
programmes, including in international organisations
and during international conferences. They may
undertake joint action. Member States shall contribute if
necessary to the implementation of Union aid
programmes.”
Obligation to cooperate
 Obligation to cooperate exists even if not expressly
provided for in the Treaty
 Opinion 1/94:
“108) Next, where it is apparent that the subject-matter
of an agreement or convention falls in part within the
competence of the Community and in part within that of
the Member States, it is essential to ensure close
cooperation between the Member States and the
Community institutions, both in the process of
negotiation and conclusion and in the fulfilment of the
commitments entered into. That obligation to cooperate
flows from the requirement of unity in the international
representation of the Community...”
General obligation to cooperate
 Article 4/3 TEU:
“Pursuant to the principle of sincere cooperation, the
Union and the Member States shall, in full mutual
respect, assist each other in carrying out tasks which
flow from the Treaties.”
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
EU in international organisations
 EU can be a founder of an international
organisation, or succeed to the place or parallel to
Member States (WTO)
 Membership in existing organisations – dependent
on the rules of that organisation
 Problem – if organisation does not allow for
participataion of international organisations
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UN
Council of Europe – rules modified
When EU cannot be a member of an
international organisation
 Obligation to cooperate and adopt common positions
 Opinion 1/13
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the Hague Convention on international child abduction
MS are parties; EU is not
if EU is not a party to an international agreement its external
competences have to be exercised jointly by Member States
MS have to decide jointly on admitting new state to the agreement
 Case C-399/12 Germany v Council (OIV)
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if EU is not a member of an international organisation, the Member
States who are members have to adopt common position in order not
to influence EU internal policies
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
 E.g. TTiP (the Transatlantic Trade and Investment
Partnership)
– currently 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