Constitutional Law of the EU's Common Foreign and Security Policy

Competence and Institutions in External Relations

Graham Butler

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509925957
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

The Common Foreign and Security Policy (CFSP) of the European Union is a highly exceptional component of the EU legal order. This constitutionalised foreign policy regime, with legal, diplomatic, and political DNA woven throughout its fabric, is a distinct sub-system of law on the outermost sphere of European supranationalism. When contrasted against other Union policies, it is immediately clear that EU foreign policy has a special decision-making mechanism, making it highly exceptional. In the now depillarised framework of the EU treaties, issues of institutional division arise from the legacy of the former pillar system. This is due to the reality that of prime concern in EU external relations is the question of 'who decides?' By engaging a number of legal themes that cut across foreign affairs exceptionalism, executive prerogatives, parliamentary accountability, judicial review, and the constitutionalisation of European integration, the book lays bare how EU foreign affairs have become highly legalised, leading to ever-greater coherence in how Europe exerts itself on the global stage. In this first monograph dedicated exclusively to the law of the EU's Common Foreign and Security Policy in modern times, the author argues that the legal framework for EU foreign affairs must adapt in a changing world so as to ensure the EU treaties can cater for a more assertive Europe in the wider world. Cited in Opinion of Advocate General Evgeni Tanchev, Case C-730/18 P, SC v Eulex Kosovo, ECLI: EU: C: 2020: 176, Court of Justice of the European Union (First Chamber), 5 March 2020; Opinion of Advocate General Gerard Hogan, Case C-134/19 P, Bank Refah Kargaran v Council of the European Union, ECLI: EU: C: 2020: 396, Court of Justice of the European Union (Grand Chamber), 28 May 2020; Opinion of Advocate General Evgeni Tanchev, Case C-283/20, CO, ME, GC and 42 Others v MJ (Head of Mission), European Commission, European External Action Service (EEAS), Council of the European Union, Eulex Kosovo, ECLI: EU: C: 2021: 781, Court of Justice of the European Union (Fifth Chamber), 30 September 2021; and, Opinion of Advocate General Tamara Capeta in Joined Cases C-29/22 P and C-44/22 P, KS, KD v Council of the European Union, European Commission, and European External Action Service (EEAS), and European Commission v KS, KD, Council of the European Union, and European External Action Service (EEAS), ECLI: EU: C: 2023: 901, Court of Justice of the European Union (Grand Chamber), 23 November 2023.

1

The Constitutionalised Regime of the Common Foreign and Security Policy

The Common Foreign and Security Policy (CFSP) of the European Union (EU) is an exceptional policy in the EU legal order. This constitutionalised foreign policy regime with legal, diplomatic, and political DNA woven throughout its fabric is a distinct sub-system of law on the outer-most sphere of European supranationalism. When contrasted with other Union policies, it is immediately clear that there is a separate remit of decision-making within the Council, with the deliberate intention of shielding it from parliamentary involvement and judicial oversight.

There is constitutional significance to the choice of legal basis for foreign policy and external relations acts of the Union. Therefore, legal tension exists in EU external relations between CFSP matters and non-CFSP matters as the institutional competence differs in terms of decision-making, procedures, substance, and justiciability. Decision-making, in itself, is not a particularly appealing aspect of the law; however, in Union law, it is of critical importance, as it governs the direction and speed of integration.

Of central concern in EU external relations is the question of ‘who decides?’ Accordingly, it is a legal challenge to decipher the intricacies of how to operate a highly exceptional policy from an institutional perspective within the legal framework of the EU treaties. Post-Lisbon, in the proclaimed depillarised framework of the treaties, issues of institutional division arise in EU external relations because of the legacy of the former pillar system. Following this most recent significant overhaul of the treaties, this book sheds new light on the legal shape of CFSP matters, analysing and debating the parliamentary and judicial branches of the Union in the legal regime of EU foreign policy. In so doing, it brings forward the argument that the long-term sustainability of distinguishing between CFSP and non-CFSP matters in EU external action is cause for concern. Through discursive analysis, the book looks at the constitutional dimension of CFSP matters through a legal lens and outlines how the treaties can cater for a more assertive Europe in the wider world.

With the legal framework of the EU’s external relations increasingly coming under the spotlight, the book analyses the current state of legal affairs in the EU’s external action, with a particular focus on the constitutional law of CFSP matters. It engages with legal themes of foreign affairs exceptionalism, executive prerogatives, parliamentary accountability, and the scope of constitutionalisation of European integration. Through an internal approach for external effect, the book lays bare, through gradual incrementalism, how the foreign affairs dimension of EU external relations has become highly legalised, leading to ever-greater coherence in how Europe exerts itself on the global stage. Simultaneously, the book reveals that the legal framework for the foreign policy element of EU external relations must adapt in a changing world, so Europe’s internal processes neither limit nor constrain its potential externally.

1.1.Introduction

In Union law, it is assumed that the constitutional legal order is a single acquis. In fact, the reality paints a far more complex picture. The Union has its own foreign policy, separate and distinct from the Member States, and there is a need for a greater understanding of the constitutional nature of this foreign policy of the Union. From a legal perspective, CFSP matters are as much a legal conundrum for the Union as it is a policy manifestation. The link between the legal nature of the policy and the political context is undeniable, and institutional arrangements for CFSP matters and its procedural practice mark it as clearly distinguishable from normal EU policies.

The treaties allow for express external capabilities of the Union in the world, but this EU external action is categorised into two groups: CFSP matters and non-CFSP matters. The former, creates a ‘world of its own’¹ and is the main subject of analysis in this book. CFSP matters possess legal, diplomatic and political characteristics, with each shining through in its own way. These two different external action regimes leave practitioners with a perplexing assortment of legal arrangements for the Union in a range of different areas when the Union acts externally. The divide between CFSP and non-CFSP matters, split across the two different treaties, remains a lingering source of confusion to non-lawyers. Thus, the presence of the distinctions and dissimilarities makes the ideal opening for legal analysis.

The coming about of CFSP as a legal field was ‘an accident’,² yet it embodies the constitutional uniqueness of foreign policy matters when legalised.³ That accident is still with us and, to use a well-known axiom, it is an ‘infant disease’⁴ that has never been cured.⁵ As a policy, CFSP matters are at the forefront of the EU’s external action on both legal and political levels, yet sit alongside non-CFSP external action, contributing to an all-encompassing practice of the Union’s external relations. CFSP matters have long been identified as different as they are contained within the Treaty on European Union (TEU).⁶ The legal framework governing regular institutional process of law-making through the ordinary legislative procedure (OLP) is not applicable for CFSP matters, as will be highlighted in its nature as non-legislative law. As an evolutionary entity, in much the same manner as the Union is itself, CFSP matters are a unique aspect of Union law that can be labelled the ‘CFSP acquis’.⁷ However, this dilutes the wholeness of EU external action, artificially thwarting Europe’s potential to act externally.

At every Intergovernmental Conference over the decades, the opportunity has arisen to get off to a fresh start, to clear the slate, and once and for all amend the provisions of the treaties, to chart a new course and streamline and simplify the legal framework governing EU external actions. The Treaty of Lisbon brought about several important changes to the functioning of a more modern international organisation of Member States,⁸ but it retained the legal divide between CFSP and non-CFSP matters.

With the Union as international organisation being identified as an entity of states seeking closer cooperation, as opposed to a loosely defined collaboration,⁹ CFSP matters emerge from the EU legal order scarred by distinction when compared to non-CFSP matters. Yet, what emanated from the Treaty of Lisbon process was the willingness to build a clearer, more coherent identity of the Union for the outside world to see, and for it to be put into force.

1.1.1.The Legal Nature of EU Foreign Policy

To achieve the EU’s desired aim, it preaches many core principles within its treaties, applicable both internally and externally.¹⁰ That sets high expectations for a polity that is governed by law beyond the state. To the outside world, CFSP matters may appear fully normalised within the EU legal structure, but this is not the case when the legal and procedural intricacies are probed. Foreign policy in the EU has been peculiar due to the lack of a uniform legal framework in the overall scheme of EU external relations.¹¹ The Member States have mandated that the EU’s external relations are handicapped between two different spheres – CFSP and non-CFSP matters. However, that does not sit well with the premise that aspiration for greater integration is inherent in the treaties.

EU foreign policy, whilst wide-ranging and not brief, creates purposeful norms through law.¹² CFSP law was born in what has been called ‘a sub-system of EU law’,¹³ for it has a robust sense of ‘other-ness’ about it. Acts of foreign policy are in constant need of adjusting to ensure they align with their intended goal. This is what poses a challenge for law. By its very nature, foreign policy does not lend itself to be a close companion of the law. Foreign policy can often be reactionary, evoking itself to changing scenarios as its respective government sees fit. Putting foreign policy and law together, even within the same sentence, must be questioned¹⁴ and, whilst they may be ‘strange bedfellows’,¹⁵ when EU foreign policy is mixed with law, it brings about anxious levels of curiosity that deserve further investigation.

The assumption that there is little law-making in EU foreign policy is wholly incorrect, as CFSP matters entail legal tools that are built into the TEU. The law and politics in CFSP matters are explicitly intertwined on a practical level and the workings of the two are premised and dependent on one another.¹⁶ CFSP matters demand attention and detail, in that there is policy on one side of the equation and decision-making on the other. Systematically, trying to separate the variances in CFSP matters is perplexing, given that legal instruments flow from the same equation.

Decisions on what positions the EU may take in foreign policy are political questions¹⁷ and are decided upon by the political institutions. They require an understanding of many important traits of what are inherent in political deliberation – historical, social, economic, political, moral, and ethical reflections. The law does not hugely contribute to such inclinations.¹⁸ Yet, political decisions are ultimately encapsulated into the EU legal regime once such decisions are made. Therefore, whilst CFSP matters are an area where the Union performs legally, the treaties demand the absurd situation in that democratic involvement and judicial control is theoretically meant to remain at Member State level. Member States have wanted the distinction between CFSP and non-CFSP matters to be as black and white as possible, but in fact, it is nothing more than an entirely grey area. It thus may be surprising that legal arguments in EU external relations are, in fact, fought upon internal legal rules. This book fits into the category of analysing Union law through the lens of an autonomous and distinct legal order.

Despite seeming to be the contrary, CFSP matters are a legalised field. For lawyers, everything in EU external relations begins with a discussion on the legal basis for supporting actions. As the Union strives for more coordination, consistency and cooperation, the choice of legal basis is of profound importance. The law is only one element of EU external relations, but it is an integral component that caters for the execution of external action. This is even more so in CFSP matters where strict conditions for the procedural issues are set down in the treaties. This is not only in EU external relations law, but for all EU acts or measures, which must have a legal basis. Ensuring that a legal basis exists for any given act or measure ensures a level of institutional balance (équilibre institutionnel) in the Union and prevents, to varying degrees, the excessive use of incorrect legal basis by institutions for their own gain, to the impairment of others.¹⁹ By using law as an instrument of the political debate between institutions and bodies, it is important to not forget that external relations law strikes the delicate balance between different institutions and their involvement in particular policies.

1.1.2.External Relations and International Agreements

Whilst the legal distinction between CFSP and non-CFSP matters is important, there are also distinctions to be made between the different types of international agreements that the Union is capable of entering into. Between bilateral and multilateral agreements, the Union is a party to well over 1,200 of them.²⁰ The deciding factors...

Table of contents

• Cover
• Title Page
• Contents
• Preface
• List of Abbreviations
• Table of Cases
• 1. The Constitutionalised Regime of the Common Foreign and Security Policy
• 2. The History of the Common Foreign and Security Policy
• 3. The EU Legal Order and the Common Foreign and Security Policy
• 4. The European Parliament and the Common Foreign and Security Policy
• 5. The Court of Justice and the Common Foreign and Security Policy
• 6. Other Issues and the Common Foreign and Security Policy
• 7. The Future of the Common Foreign and Security Policy
• Bibliography
• Index
• Copyright Page