Horizontal Consistency in the European Union External Action


Master's Thesis, 2011
60 Pages

Excerpt

Table of Contents

Introduction

1. The Concept of Consistency
1.1. Consistency as a Legal Obligation under the EU Law – a Multi-layered Concept
1.2. Horizontal versus Vertical Consistency

2. Consistency and the Development of the European Union’s External Action
2.1. External Action prior to the Treaty of Lisbon
European Political Cooperation
Treaty of Maastricht and the Introduction of the Common Foreign and Security Policy
Delimitation of Competences between Pillars
The “Unity Thesis” – Relationship between the EC and EU Legal Orders
Consistency in External Action prior to Lisbon
2.2. External Action after the Treaty of Lisbon
2.2.1. Institutional Innovations brought about by the Lisbon Treaty
The High Representative of the Union for Foreign Affairs and Security Policy
The President of the European Council
The European External Action Service
2.2.2. External Action and the Unity of the EU Legal Order
Single Legal Personality
The principles of primacy and direct effect
Delimitation between CFSP and Non-CFSP Policies
Court of Justice’s Task to Delineate between CFSP and Non-CFSP Foreign Policies
2.2.3. Components of European Union External Action
Consistency and Common Overarching Principles and Objectives of EU Foreign Policy
Common Foreign and Security Policy
Common Security and Defence Policy
Common Commercial Policy
Development Cooperation

3. Consistency in practice: Overlapping External Competences
Increasing interaction between different policy fields
European Neighbourhood Policy

4. The Duty of Consistency in EU External Action
4.1. Inter-institutional Consistency
4.2. Inter-policy Consistency

Conclusion

Table of Cases

Case 6/64 Costa v. ENEL [1964] ECR 585 at 593.

Case 26/62 Van Gend en Loos [1963] ECR 1.

Case 106/77, Simmenthal, (1978)ECR 629

Case C-130/10 European Parliament v. Council

Case C-170/96 Commission v Council [1998], ECR I-02763

Case C-176/03 Commission v Council [2005], ECR I-7879

Case C-268/94, Portugal v.Council (1996)ECR I-6117

Joined cases C-317/04 and C-318/04, European Parliament v. Council and Commission [2006] ECR I-4721

Case T-306/01 Yusuf v. Council and Commission [2005] ECR II-3353

Case T-315/01 Kadi v. Council and Commission [2005] ECR II-3353

List of Abbreviations

illustration not visible in this excerpt

List of Figures

Figure 1: The multidimensional concept of consistency

Figure 2: Achieving Vertical Consistency: Model of a Bargaining Process

Figure 3: The Functions of the High Representative

Figure 4: The Institutional Architecture of the CFSP

Abstract

The Lisbon Treaty brought about substantial legal and institutional innovations to the external action of the European Union: In line with the principle of horizontal consistency, the dissertation aims at assessing how the Lisbon changes have affected areas of external actions individually and collectively as well as to what extent these changes have contributed to more consistent external policy. In the beginning of the analysis consistency is discussed as a multi-dimensional concept. The dissertation has focused on two aspects of horizontal consistency – inter-institutional and inter-policy horizontal consistency. Whereas inter-institutional horizontal consistency has focused on achieving synchronisation among the European institutions, inter-policy horizontal consistency is interested in coherent policy-making between the different external action areas, namely the Common Commercial Policy, the Common Foreign and Security Policy, the Common Security and Defence Policy, the development cooperation and the technical assistance with third countries.

Introduction

The Lisbon Treaty introduced substantial changes in the field of the EU’s external action. Firstly, many institutional innovations were introduced, most notably the high-ranking posts of the High Representative and the President of the European Council as well as Union’s diplomatic service – the European External Action Service. Secondly, there is an attempt to create a more unified legal order through the formal abolition of the pillar structure, the introduction of a single legal personality and the abolition of the hierarchical relationship between pillars. Finally, the Lisbon Treaty re-organised the EU’s external action. With the Treaty of Lisbon entering into force, the external action of the Union encompasses the common foreign and security policy (CFSP), the common security and defence policy (CSDP), the common commercial policy (CCP), the development cooperation and economic, financial and technical cooperation with third countries.

According to Article 13 of the Treaty on European Union (TEU): ‘The Union shall ensure consistency between the different areas of its external action and between these and its other policies.’ Consistency in EU external relations can be seen as a multi-layered concept, consisting of variety of dimensions, intertwined with other concepts and legal obligations in the Treaty as well as a political objective of the Union. Most importantly, it is a legal requirement through which the TEU accords to the Union the general responsibility for ensuring consistency of its external action as a whole but it charges the High Representative, the Council and the Commission with ensuring the implementation of these policies each in accordance with its respective powers. The dissertation will focus on horizontal consistency as an issue in EU external action and the legal as well as political implications of the institutional innovations brought about by the Lisbon Treaty. Whereas vertical consistency applies to the relations between the Member States and the Union, horizontal consistency designates consistency on European level, either inter-policy or inter-institutional consistency. Inter-institutional horizontal consistency is responsible for omitting gaps, avoiding conflicts and ensuring there are no overlapping competences between the European institutions. It is the strive for harmony, beneficial relationship and cooperation of institutional co-existence. On the other hand, inter-policy consistency is a prerequisite for the Union in order to speak with one voice on the international scene. It requires having overarching objectives and working for the same goals through variety of policies. This, it is especially relevant for the Union as prior to the Lisbon Treaty, there was a hierarchical separation of external policies because priority was given to first pillar competences. An example of inter-policy consistency is using policy instruments form the CCP to achieve development and security goals. Thus, the traditional aim of CCP to promote international trade liberalisation can gradually give way to a more normative EU trade agenda. Hence, ideally, the Union’s status as a global economic and trade power would be deployed for the purpose of promoting human rights and fundamental freedoms, sustainable development and environmental protection.

The general aim of the dissertation is to explore the European Union’s desire to make its foreign policy more coherent and to analyse how consistency is ensured in tow domains of horizontal consistency – inter-institutional and inter-policy. The first chapter discusses the multi-layered concept of consistency through the use of other legal concepts. It further elaborates on the terms vertical and horizontal consistency as well as the difference between “consistency” and “coherence” and the different language versions of the Treaty. The second chapter tracks historically the development of the EU’s external action as well as its efforts to make its external action more consistent. The first part traces the Union’s quest for more legal unity and consistency from the establishing of European political cooperation (EPC) until the Treaty of Amsterdam. In the second part, the innovations in the external action framework of the Union brought about by the Lisbon Treaty are discussed in detail. Firstly, attention is paid to the institutional innovations brought about by the Lisbon Treaty. Secondly, the “unity of the legal order” is discussed. Finally, all individual external action policies are presented in their final “version” after Lisbon. The third chapter attempts to illustrate “consistency in practice” by two examples of overlapping between CFSP and non-CFSP issues will be discussed, namely European Neighbourhood Policy and economic sanctions. The focus in the final chapter is on two aspects of horizontal consistency - inter-institutional and inter-pillar consistency. It seeks to answer the question whether the new institutional and legal framework have enhanced the consistency and the effectiveness of the Union’s external action.

1. The Concept of Consistency

1.1. Consistency as a Legal Obligation under the EU Law – a Multi-layered Concept

European foreign policy consistency has been the subject of extensive academic debate and a source of concern among European and national policy-makers for almost four decades. Consistency has an ambiguous nature, which at first sight appears to have a primarily political character. In fact, it is a multi-layered concept and most scholars in the field of European Union’s external relations law or political studies take as a point of departure in their contributions the explanation of the (legal) meaning of the term. Many different theoretical formulations of the term can be met in the literature. For example, Gauttier argues that at least in the context of EU foreign policy consistency does not designate a specific legal concept.[1] However, according to Tietje it is “one of the main constitutional values of the EU”[2].

Provisions in both the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) make reference to the principle of consistency. The principle of consistency provides a context and a rationale for the operation of fundamental legal principles governing the relations between Member States and the EU institutions and between the institutions themselves, including the principles of primacy, legal personality and competence as well as the duties of sincere cooperation and complementarity. Consistency is mentioned in Art.13 TEU as one of the main elements for smooth implementation of EU policies:

The Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions.

While Art.13 TEU has a more general application, the most important provision on consistency specifically on external action is Article 21 (3) TEU:

The Union shall ensure consistency between the different areas of its external action and between these and its other policies. The Council and the Commission, assisted by the High Representative of the Union for Foreign Affairs and Security Policy, shall ensure that consistency and shall cooperate to that effect.

To translate concepts of consistency into legal obligations is not straightforward. As such, these concepts are generally not well-established principles of EU law. However, they are an important political aim of the Union. Hence, the quest for consistency policy-making is translated into several legal duties for the Union and its Member States. Furthermore, there is no substantive benchmark in the Treaty as to how consistency can be achieved. Arguably, consistency has to be the outcome of a political process. Consistency can be derived from other core principles in the Lisbon Treaty. Cremona illustrates consistency as a three-level notion. Consistency can be seen as: (1) conflict avoidance between potentially contradictory norms in the areas of external action and between them and other Union policies; (2) effective allocation of tasks between actors and instruments in terms of rules of delimitation; (3) synergy between norms, actors and instruments.[3]

Kenzler and Schneider define consistency as: “coordinated behaviour based on agreements where comparable and compatible methods are used in pursuit of a single objective and result in an uncontradictory policy.”[4] Thus, a first level of consistency can be seen as the absence of contradictions between the external policies of the European Union.[5] It encompasses rules for conflict avoidance between potentially contradictory norms and for resolving conflicts when they arise in terms of rules of hierarchy. For example, the rule of primacy of European Union law ensures that European Union law will prevail over conflicting norms of national law. Likewise, the primary law of the EU including the Treaties but also including general principles of law will take precedence over secondary law enacted by the institutions.

A second level of consistency is seen in terms of rules of delimitation - the effective allocation of tasks between actors and instruments. Not only must the EU act within the limits of the powers conferred upon it by the Treaties, but also each institution must act within the limits of its own powers. Delimitation aims at avoiding duplications and gaps in institutional competences which is vital for synchronisation of external action areas. Preventing cases of overlapping in powers and ensuring effective allocation of tasks between actors and instruments is a key task for the smooth functioning of the European institutions. An example of a delimitation rule designed to ensure consistency is the doctrine of pre-emption, under which the Member States are precluded from acting externally to the extent that the Community has enacted common rules in the field and insofar as those rules would be affected by national action. However, effective delimitation of competences between institutions and between the Union and the Member States will not be sufficient to ensure consistency if there are no mechanisms in place to establish cooperation (the so-called “bridges”).

A third level of consistency implies synergy between norms, actors and instruments. This synchronisation can be termed “coherence”. From a legal point of view, consistency and coherence have a different meaning. Whereas the term “consistency” points at the absence of contradictions between the various external policies, “coherence” refers to the positive obligation of ensuring synergy between the different elements of external action. As a number of writers have pointed out while coherence is a matter of degree, consistency is a static concept (legal provisions are either consistent or they are not). They cannot be used interchangeably but should be understood as distinct concepts in a sense that the requirement of consistency forms the first degree of coherence. [6]

An initial problem with terminology arises when comparing the different language versions of the Lisbon Treaty.[7] The different language versions of the Treaties do not use the same term. For example, the French, Italian, German and other language version use coherence - “cohérence”, “coerenza”,“Kohärenz”, while the English versions use “consistency”. This difference can be traced back to the Single European Act in 1987 in its provisions on European Political Cooperation and has not been remedied by the Treaty of Lisbon. When referring to the meaning in Art. 21 (3), some authors choose to use coherence rather than consistency. Coherence can be seen as a broader and more flexible concept than consistency. Duke proposes how to proceed with this linguistic deficiency:

The difference between consistency and coherence has been the subject of legal scrutiny but viewed from a political perspective, the terms are not significantly at variance since they both point out to the direction of coordinated activities with the objective of ensuring that the Union speaks with a single voice.[8]

I have adapted the same approach in my research. More importantly, for the sake of clarity the term “consistency” is preferred since reference will be made to the English language versions of the various official documents. Thus, in the present dissertation, it is considered that consistency in the English version of the Treaty “presupposes a quest for synergy and added value between the different actions of the Union.”[9]

1.2. Horizontal versus Vertical Consistency

Figure 1: The multidimensional concept of consistency

illustration not visible in this excerpt

Source: S. Duke (2006), 12

From a theoretical viewpoint, the meaning of consistency has usefully been refined by reference to horizontal and vertical consistency. Vertical consistency applies to the relations between the Member States and the Union while horizontal consistency designates consistency on European level, either inter-policy or inter-institutional consistency. Horizontal and vertical consistency are compared by Gauttier as: “on one hand at providing a declaratory diplomacy with content, often economic, by combining the CFSP with the various other actions of the Union in the field of external relations[inter-policy horizontal consistency], and on the other hand attaining harmony between the CFSP and the sphere of national action [vertical consistency].”[10] While vertical consistency focuses on coordination and bargaining, horizontal consistency focus falls on implementation. Vertical consistency requires coordination and satisfaction of a large number of participants including governments and ministries, private interest groups, lobbyist, the European institutions, international organisations and many others. Therefore, the emergence of a consistent position will be a product of negotiations and can be seen as a long drawn-out and complicated process.

Figure 2: Achieving Vertical Consistency: Model of a Bargaining Process

illustration not visible in this excerpt

Source: S.Duke (2006), 13

In contrast, horizontal consistency involves the implementation of external policies on EU level. In the process of policy implementation, the Union is required by the Treaty to strive for inter-institutional complementarity, conflict avoidance and cooperation. The term horizontal consistency has two aspects – inter-institutional and inter-policy aspect. Inter-institutional issues focus on achieving harmonious balance between the European institutions in terms of the delimitation of competences. The inter-institutional design of the EU external relations law is of a particular importance having in mind the institutional innovations brought about by the Lisbon Treaty on external action. In terms of inter-policy[11] horizontal consistency, consistency can be defined in this case in terms of “systemic outputs” in terms of “the way in which the substance of different policies generated by the EU forms part of a coherent whole”.[12]

The present dissertation will focus on horizontal consistency in the EU external relations both in terms of inter-institutional and inter-policy consistency. Here, horizontal consistency refers to consistency exclusively on EU-level as opposed to vertical consistency, which is the law that governs the vertical allocation of competences between EU-level and the Member States in the field of external action.

2. Consistency and the Development of the European Union’s External Action

This chapter tracks historically the development of the EU’s external action as well as its efforts to make its external action more consistent. The first part traces the Union’s quest for more legal unity and consistency from the establishing of European political cooperation (EPC) until the Treaty of Amsterdam. In the second part, the innovations in the external action framework of the Union brought about by the Lisbon Treaty are discussed in detail.

2.1. External Action prior to the Treaty of Lisbon

On 25 March 1957, ECSC Member States signed the Treaties of Rome, the aim of which was the establishment of a common European market without customs duties or quantitative restrictions in the framework of a European Economic Community (EEC), combined with a European Atomic Energy Community (Euratom). The key objectives set out in the Treaties of Rome – a common market, freedom of movement and common agricultural, trade and competition policies – were gradually achieved in the course of subsequent years. Although the notion of consistency was not mentioned per se in the founding treaties, the foundations of the principle of consistency were nevertheless present. Under the Treaty of Rome, all Member States were obliged in Art.5 to “abstain from any measure which could jeopardise the attainment of the objectives of this treaty”.

The European Community was externally only competent in the area of trade in terms of the Common Commercial Policy (CCP). Presently, the CCP is the most developed external policy of the EU and it is an exclusive European competence since the Treaty of Rome. The Community was given competences to replace their Member States in their relations with third states and other international organisations as Member States are precluded from conducting individual commercial policies. After the qualification in 1963 of the Community as constituting “a new legal order of international law”[13] one year later the Court confirmed the Community’s “own legal capacity and capacity of representation on the international plane”:

It cannot therefore be accepted that, in a field such as that governed by the understanding in question, which is covered by export policy and more generally by the common commercial policy, the Member States should exercise a power concurrent to that of the Community, in the Community sphere and in the international sphere. The provisions of Articles 113 and 114 concerning the conditions under which, according to the Treaty, agreements on commercial policy must be concluded show clearly that the exercise of concurrent powers by the Member States and the Community in this matter is impossible. [14]

European Political Cooperation

Therefore, the first external relations of the Community were in the domain of trade with third countries. Since the early days of the Community, the Treaties did not devote too much space to the division of external competences between the Community and its Member States and developments in this field are to a large extent driven by case law.[15] After a boom in the 1970s, following judgments or opinions of the Court of Justice like ERTA, Kramer, Haegeman, International Fruit Company and Opinion 1/76 and 1/94 on the WTO agreement, it was a period in which the external dimension of the European Community received abundant attention. The 1970s saw increasing foreign policy cooperation between Member States in the framework of the system of European Political Cooperation (EPC). Within the framework of the EPC, the Member States enhanced coordination of foreign policies and adopted a number of common positions, concerning especially the Middle East region. However, this initial stage of foreign policy cooperation was built outside of the Community framework and is an evidence of the Member States’ decision for a strict separation between the intergovernmental EPC and the supranational and mainly economically oriented external relations of the then European Economic Community (EEC). The founding Treaties, as they existed until Lisbon, did not contain a provision defining the Commission tasks in external relations, apart from the specific case of negotiations of international agreements. Beyond this aspect, the Commission’s external role has been based on practice and it has evolved over the years. Following the introduction of EPC, the increasing number of external activities of the Union highlighted the need for consistency. According to Duke, throughout the duration of the EPC, consistency has meant only addressing the obvious – “ensuring that the EPC and the Community did not cancel or contradict each other’s actions”.[16]

The notion of consistency was formally introduced in the Treaties in 1986 in the Single European Act (SEA) stipulating that: “the external policies of the European Community and the policies adopted by the European Cooperation Policy shall be consistent”.[17] The preamble in the same treaty underlines the need for Europe to speak “ever increasingly with one voice and to act with consistency and solidarity in order more effectively to protect its common interests”. In the SEA, horizontal consistency was addressed by the Commission being granted the right to give its opinion to the Presidency. Additionally, the Presidency assisted by the EPC Secretariat (consisting of five officials) was obliged to transfer to the Council any EPC conclusions of interest to the Community. Consistency was seen as one of the success factors for the rotating presidencies. For example, during the UK presidency in 1986 Sir Geoffrey Howe as the outgoing President-in-Office of the Council stated that “our Presidency has had considerable success in ensuring consistency between EPC and Community activity in the spirit of the Single European Act.”[18] The European Council Rhodes summit stressed that common positions and joint actions were a key means of reaching consistency between the external policies of the then EC and policies agreed through the EPC framework. This demonstrates that increasing attention has been placed on the unity and coherence of the Union’s external activities. The security-oriented EPC remained the synonym for foreign policy coordination until it was superseded by the Common Foreign and Security Policy in the Maastricht Treaty.

Treaty of Maastricht and the Introduction of the Common Foreign and Security Policy

The Treaty on European Union (TEU), incorporating the Treaty of Maastricht, was the first treaty revision to put in place a number of institutional arrangements to address shortcomings in consistency. The TEU required the Union “to organise, in a manner demonstrating consistency and solidarity”[19]. Article 3 of the same treaty states that:

The Union shall be served by a single institutional framework which shall ensure the consistency and the continuity of the activities carried out in order to attain its objectives while respecting and building upon the acquis communautaire.

The Union shall in particular ensure the consistency of its external activities as a whole in the context of its external relations, security, economic and development policies. The Council and the Commission shall be responsible for ensuring such consistency. They shall ensure the implementation of these policies, each in accordance with its respective powers.

With the advent of the Union and the CFSP as an integral element, there was a shift of responsibility to the Council (instead of the Presidency under the EPC) and again the Commission. Later, with the enactment of the Treaty of Amsterdam (1999), the Council and the Commission were again charged with the duty of ensuring consistency in the external activities as a whole and for them to “cooperate to this end”. (CTEU,1997, Art.3)

The Treaty of Maastricht brought about a major institutional innovation what is commonly referred to as the pillar structure of the Union with the following three pillars: the European Community (EC) pillar, the Common Foreign and Security Policy (CFSP) pillar, and the Justice and Home Affairs (JHA) pillar. Two separate legal orders were established – the European Community and the European Union, where the Union was established on the European Communities, accompanied by the second and third pillar policies. This model of the Union describes a temple-like construction. The perception of the Union as a roof resting on three pillars is grounded in Article 1(3) TEU:

The Union shall be founded on the European Communities, supplemented by the policies and forms of cooperation established by this treaty.

The external competences of the Union were separated in two distinct frameworks – the exclusive European competence of the Community and more intergovernmental CFSP. The external action framework favoured the idea of autonomous security and diplomacy related issues in the framework of the CFSP. In the 1991 Intergovernmental conference (IGC), proposals for integrating the CFSP within Community competence have been defeated due to reluctances on the part of Member States to lose part of their sovereignty. Thus, the external action of the European Union was conducted under the distinct set of constitutional arrangements found respectively in the EC Treaty (first pillar) and in Title V and Title VI TEU (second and third pillar).

Delimitation of Competences between Pillars

Determining competence delimitation between pillars was a major question on the old Union legal order. One of the potential conflicts between the pillars was the possible overlap between the legal bases that can be used for pursuance of the objectives of the EC and the EU. The necessary demarcation between the EC and the EU competences was governed by Art 47 TEU (pre-Lisbon). Second pillar powers were to be exercised “without prejudice to the powers of the European Community” (ex Art 29 TEU); and nothing in the TEU was to affect the Community Treaties (ex Art 47 TEU). Because of this wording, ex Art 47 TEU is widely read as a collision norm, derogating the application of the lex posterior derogate legi periori rule in relation between the TEC and the TEU. Thus, these provisions (ex Arts 29 and Art 47 TEU) were interpreted to mean that second and third pillar powers should not “encroach upon” Community powers.

A line of cases establish a hierarchical relationship between the Community and the rest of the pillars. In the Airport Transit Visas case, the Commission brought proceedings under Art.230 EC for the annulment of the Council’s Joint Action of 4 March 1996 on airport transit agreements (made under the second pillar).[20] The Commission contended that the Joint Action ought to have been adopted under the then Art100c EC, which gave the Community competence to determine the third countries whose nationals must be in possession of a visa. The Court claimed that the act ought to have been adopted under the appropriate legal basis conferring competence on the Community. The ECJ defined its task under Art.47 as being “to ensure that acts which, according to the Council fall within the scope of …the Treaty on European Union do not encroach upon the powers conferred by the EC Treaty on the Community.” In Environmental Criminal Sanctions, the ECJ found that the Council was in breach of the Art 47 TEU when it enacted a Framework Decision under the third pillar, since the EC had the competence to act under Article 175 TEC. In ECOWAS case, the ECJ found that for measures pursuing two aims which are inextricably linked without one being incidental to the other, priority should be given to the non-CFSP.[21] As the Court of First Instance put it in Kadi, despite the single institutional framework and shared overall objectives, the CFSP and the EC are two “integrated but separate legal orders”.[22] The case law and Art 47 TEU, coupled with the very broad interpretation of Community policies, to a greater extent affected the scope of CFSP in practice. Therefore, the pillar structure rather reduced the CFSP to a narrowly defined, residual type of external action.[23]

The “Unity Thesis” – Relationship between the EC and EU Legal Orders

Parallel to the intergovernmental and communautaire divisions of the pillars, common theme among legal commentators had been whether the European Community and the European Union, based on two separate treaties, constituted a single and unitary legal order, the “so-called unity” thesis. Some argued that acts adopted under the second and third pillar are basically adopted under traditional public international treaty law representing agreements between Member States and not as a secondary law of an international organisation.[24] The key argument put forward is that the EU did not possess international legal personality, since the TEU lacked an explicit provision to that end, and contained no provisions from which one could derive legal personality under the implied powers doctrine. In contrast, other scholars concluded that the European Union constituted a single legal system, of which the Communities, the CFSP and the JHA were simply sub-systems.[25] According to von Bogdandy, the pillars of the European Union did not demarcate different organisations, but only different capacities with partially specific legal instruments and procedures and thus all the treaties and secondary law formed a single legal order.[26] Other arguments put forward in support of the “unity thesis” were the objectives of the Union (ex Art. 2 TEU), the single institutional framework (ex Art.3 TEU), the European Council as an organ of the Union (ex Art 4 TEU), the consistent references of the Union and its Members in the TEU, the provisions on enhanced cooperation (Art 43 et seq TEU), and the amendments of the treaties and the accession of the Union as a whole (ex Arts. 48, 49 TEU).[27] According to Herrmann, to answer the question whether the EU represented a single legal order or merely “a franchiser who organises the ‘corporate identity’ of EC law and the second and third pillar legal system”[28], the ultimate legal source inside the legal system of the EU has to be established. Did all EU law, enacted under any of the pillars, derive its validity from the same legal norm? In other words, whether instruments of secondary law, such as Regulations, Directives, Joint Actions, Common Positions can be traced back to one source. Under the Treaties, it is established that all secondary and tertiary legal instruments derive their legitimacy from being enacted on the basis of the procedures laid down in the respective treaty. However, there is a degree of uncertainty whether TEC and Title V and Title VI TEU stem from the same source. At first glance, it seemed that the existence of two different Treaties means that they do not share the same source of legitimacy, but rested on separate acts of the constituent power of the Member States. Conversely, this argument avoided the fact that both Treaties were tied together, especially by Arts. 48 and 49, which stated that neither amendments nor accession can take place with respect to only the TEC or the TEU. Herrmann argues that the whole body of EC and EU law can be traced back to a single source, which is the collective will of the Member States.[29] This means that in a formalistic sense EC and EU law belong to the same legal order, even though the linkage is on the highest possible level of the legal order – the ultimate source of the legal order as such. However, in Yusuf, the CFI characterised the Union’s legal order as “integrated but separate”.[30] Herrmann provides an interesting answer to the dilemma on the “unity thesis”: “It is a mere play of words to deny it [the European Union] characterisations such as constitution, legal order, legal system or similar, for the sole reason that it does not mirror our state-experience-shaped expectations in all aspects. One should abstain from drawing too heavily on such notions as ‘unity of the legal order’ when making a legal argument.”[31]

Consistency in External Action prior to Lisbon

At Maastricht, and later Amsterdam, an attempt was made to tackle coherence problems at several levels. Firstly, in terms of bureaucratic-institutional reforms, a single institutional framework was created, the temple-like construction of the European Union, which provided for the use of common institutions in all pillars. The Commission and the Council were given the obligation to ensure consistency instead of the rotating Presidency under the former framework. Secondly, with the introduction of the pillar structure, legal instruments were established within the second pillar which meant to co-ordinate external action by EU actors, namely the Common Positions and Joint Actions.[32] Finally, the introduction of the principle of consistency served as a practical tool for organising the exercise of diverse competences of the Union in the field of foreign relations. While the wording of Treaty provisions and case law indicated that there was a persistence of the old cleavage between federalism and intergovernmentalism, by no means followed that the external activities of the Union, provided for under the EC Treaty and under Title Five TEU, “are required to take place in hermetically sealed compartments.”[33] Rather, the duty of consistency assumes that it is possible and favourable for the different external competences to be used in a way that is beneficial and in the interest of the Union as a whole.

Yet, despite some improvements the institutional formulae have proved of limited use in averting incoherence in the EU’s steadily increasing foreign policy activity and some significant improvements were introduced by the Treaty of Lisbon.

[...]


[1] P. Gauttier, ‘Horizontal Coherence and the External Competences of the European Union’ (2004) 10 European Law Journal 23, 24.

[2] C. Tietje, ‘The Concept of Coherence in the TEU and the CFSP’ (1997) European Foreign Affairs Rev,2, 12

[3] M Cremona, ‘Coherence through Law: What difference will the Treaty of Lisbon make?’, in Six Authors in Search of a Notion: (In)Coherence in EU Foreign Policy and its Causes, C.Portela and K. Raube (eds) Hamburg Review of Social Sciences, (2008) Vol.3, No.1, 17

[4] H.G Krenzler, and H.C Schneider, ‘The Question of Consistency’ in E. Regels-Berger and others (eds), Foreign Policy of the European Union: From EPC to CFSP and beyond (Lynne Rienners: London 1997) ,34

[5] P.Van Elsuwege,’External Action after the Collapse of The Pillar Structure’ (2010) 47CML Review,987, 1013

[6] ibid

[7] For example, Art.21(3) in German: “Die Union achtet auf die Kohärenz zwischen den einzelnen Bereichen ihres auswärtigen Handelns sowie zwischen diesen und ihren übrigen Politikbereichen.”

[8] Simon Duke, ‘Consistency as an Issue in EU External Activities’ (2006), Working Paper, European Institute of Public Administration, http://www.eipa.eu/files/repository/product/20070816131419_99w06.pdf, Accessed 05 June 2011

[9] P.Van Elsuwege,’External Action after the Collapse of The Pillar Structure’ (2010) 47CML Review,987,1014

[10] P. Gauttier, ‘Horizontal Coherence and the External Competences of the European Union’ (2004) 10 European Law Journal 23,34

[11] Under the pre-Lisbon Treaty framework know as an inter-pillar consistency.

[12] C.Portela and K.Raube, ‘Six Authors in Search of a Notion: (In)Coherence in EU Foreign Policy and its Causes’ (2008),Hamburg Review of Social Sciences, Vol.3, No.1, 5

[13] ECJ, Case 26/62 Van Gend en Loos [1963] ECR 1.

[14] ECJ, Case 6/64 Costa v. ENEL [1964] ECR 585 at 593.

[15] A Ott and RWessel, ‘The EU’s External Relations Regime:Multilevel Complexity in an Expanding Union’ in The European Union and its Neighbours(Asser Press, 2006), 20

[16] Simon Duke, ‘Consistency as an Issue in EU External Activities’ (2006), Working Paper, European Institute of Public Administration, http://www.eipa.eu/files/repository/product/20070816131419_99w06.pdf, Accessed 05 June 2011,8

[17] Article 30(5).TEU

[18] Howe, Sir Geoffrey (1986), Statement of the Term-of-Office of the British Presidency, Balance Speech to the European Parliament , 10 Dec. 1986, Doc. 86/402

[19] Art 1 TEU

[20] Case C-170/96 Commission v Council [1998], ECR I-02763

[21] Case C-176/03 Commission v Council [2005], ECR I-7879

[22] Case T-315/01 Kadi v. Council and Commission [2005] ECR II-3353

[23] Heliskoski, ‘Small arms and light weapons within the Union’s pillar structure: An analysis of Art 47 of the EU treaty’(2008), 33 EL Rev. , 908, 913

[24] C. Herrmann ‘Much Ado about Pluto’ in M. Cremona and B. de Witte (eds.), EU Foreign Relations Law – Constitutional Fundamentals (Oxford, Hart Publishing, 2008), 19 ,21

[25] D Curtin and I Dekker, ‘The EU as a layered international organisation: Institutional unity in disguise’, in P Craig and G de Burca (eds), The Evolution of EU Law, OUP,1999), 32

[26] A von Bogdandy, The legal case for Unity: The European Union as a Single Organisation with a Single Legal Syste” (1999) 36 CML Rev 887,902

[27] C. Herrmann ‘Much Ado about Pluto’ in M. Cremona and B. de Witte (eds.), EU Foreign Relations Law – Constitutional Fundamentals (Oxford, Hart Publishing, 2008), 19,25

[28] Ibid, 36

[29] Ibid, 37

[30] Case T-306/01 Yusuf v. Council and Commission [2005] ECR II-3353

[31] C. Herrmann ‘Much Ado about Pluto’ in M. Cremona and B. de Witte (eds.), EU Foreign Relations Law – Constitutional Fundamentals (Oxford, Hart Publishing, 2008), 19,

[32] T Christiansen (2001) “Intra-institutional politics and inter-institutional relations in the EU: towards coherent governance?”, Journal of European Public Policy, 8(5), 122

[33] A. Dashwood , ‘Article 47 TEU and the Relationship between First and Second Pillar Competences"’ in Dashwood and Maresceau (Ed), The Law and Practice of EU External Relations – Salient Features of a Changing Landscape (Cambridge University Press, 2008), p. 70, 73

Excerpt out of 60 pages

Details

Title
Horizontal Consistency in the European Union External Action
College
University of Reading
Course
LLM International Law
Author
Year
2011
Pages
60
Catalog Number
V179295
ISBN (eBook)
9783656017004
ISBN (Book)
9783656016731
File size
949 KB
Language
English
Tags
horizontal, consistency, european, union, external, action
Quote paper
Veronika Minkova (Author), 2011, Horizontal Consistency in the European Union External Action, Munich, GRIN Verlag, https://www.grin.com/document/179295

Comments

  • No comments yet.
Read the ebook
Title: Horizontal Consistency in the European Union External Action


Upload papers

Your term paper / thesis:

- Publication as eBook and book
- High royalties for the sales
- Completely free - with ISBN
- It only takes five minutes
- Every paper finds readers

Publish now - it's free