Tài liệu EU Foreign Relations Law Constitutional Fundamentals doc

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EU FOREIGN RELATIONS LAW

This book reappraises the constitutional fundamentals of EU foreign

relations law. The essays in the book examine and reassess the basic

principles of EU foreign relations law that have emerged over 50 years of

incremental Treaty-based and judicial development and explore the par￾ticular character of the EU’s ‘external constitution’. They have been written

against a background of change and debate: the deliberation over the

character of the appropriate constitutional framework which has sur￾rounded the drafting of the Constitutional and Reform Treaties, the

increasingly cross-pillar nature of much EU external action, and renewed

interest in the accountability of foreign relations policy and practice to

democratic and judicial review within and outside the EU. This collection

will be of interest not only to EU foreign relations law specialists but also

to those concerned with broader constitutional issues within EU law. In

exploring the legal context in which the EU seeks to develop an interna￾tional identity, and to structure and execute policies at the international

level, the collection will also interest those working in international

relations.

Essays in European Law: Volume 13

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EU Foreign

Relations Law

Constitutional Fundamentals

Edited by

Marise Cremona and Bruno de Witte

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Acknowledgements

The editors would like to thank the Academy of European Law for its

support for the workshop at which the papers included in this book were

first presented. We would also like to thank the participants in that

workshop, discussants as well as paper-givers, for their essential contribu￾tion to this project. Dr Gracia Marín Durán has helped us to prepare the

manuscript, way beyond reasonable expectations and with exceptional

efficiency and good humour. Thank you finally to the editorial staff at Hart

for their patience and understanding.

Marise Cremona

Bruno de Witte

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Contents

Acknowledgements v

List of Contributors ix

Introduction xi

I EU Foreign Relations: Law and Constitution 1

1. Too much constitutional law in the European Union’s

Foreign Relations? 3

Bruno de Witte

II Foreign Relations Law in a Multi-Pillar Era 17

2. Much Ado About Pluto? The ‘Unity of the European

Union Legal Order’ Revisited 20

Christoph Herrmann

3. The Law and Practice of CFSP Joint Actions 53

Alan Dashwood

4. Restraining External Competences of EU Member States

under CFSP 79

Christophe Hillion and Ramses Wessell

III The EU and its Member States 123

5. Defending the Community Interest: the Duties of

Cooperation and Compliance 125

Marise Cremona

6. Legal Basis and Delimitation of Competence in EU

External Relations 171

Panos Koutrakos

IV Executive Accountability 199

7. Parliamentary Involvement in European International Relations 201

Daniel Thym

8. Fundamental What? The Difficult Relationship between Foreign

Policy and Fundamental Rights 233

Eleanor Spaventa

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V EU Foreign Relations, Human Rights and International Law 257

9. The Journey Towards All that is Good and Beautiful: Human

Rights and ‘Common Values’ as Guiding Principles of

EU Foreign Relations Law 259

Päivi Leino

10. Effects of International Agreements in the EU Legal Order 291

Christine Kaddous

Index 313

viii Contents

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List of Contributors

Marise Cremona is Professor of European Law at the European University

Institute and Co-Director of its Academy of European Law. She was

formerly Professor of European Commercial Law at the Centre for

Commercial Law Studies, Queen Mary University of London.

Alan Dashwood is Professor of European Law at Cambridge and a Fellow

of Sidney Sussex College; he is also a barrister. Previously, he was a

Director in the Legal Service of the Council.

Bruno de Witte is Professor of European Law at the European University

Institute, Florence. He is also co-director of the Academy of European Law

at the EUI.

Christoph W Herrmann, LLM European Law (London), Wirtschaftsjurist

(Univ Bayreuth) is Assistant Professor at the Chair for Public Law and

European Law at the University of Munich and during 2006–07 was

Jean-Monnet Fellow at the Robert Schuman Centre for Advanced Studies

of the European University Institute, Florence.

Christophe Hillion is professor of European law and co-director of the

Europa Institute, Faculty of Law, University of Leiden, the Netherlands.

Christine Kaddous studied at Neuchâtel University, Cambridge University

(GB) and at the Institut d’études européennes of the Université libre de

Bruxelles. She is professor of European Union Law at Geneva University

and director of the Centre d’études juridiques européennes (CEJE) of the

same University.

Panos Koutrakos is Professor of European Union Law and Jean Monnet

Chair in EU Law at the University of Bristol.

Päivi Leino has worked at the Finnish Prime Minister’s Office and was

responsible for the legal aspects of the 2007 Intergovernmental Confer￾ence. She is associated with the Centre of Excellence for Global Govern￾ance Research at the Erik Castrén Institute of International Law and

Human Rights, University of Helsinki, where she defended her doctoral

thesis in 2005.

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Eleanor Spaventa is Reader in Law at Durham University and Director of

the Durham European Law Institute. She previously held positions at

Birmingham University, where she was a lecturer, and at the University of

Cambridge, where she was a Norton Rose European Law Lecturer and

Director of Studies at New Hall.

Daniel Thym is a senior researcher at the Walter-Hallstein-Institute for

European Constitutional Law at Humboldt-University in Berlin and the

coordinator of the graduate school ‘Constitutionalism Beyond the State:

European Experiences and Global Perspectives’.

Ramses A Wessel is Professor of the Law of the European Union and other

International Organizations and Co-Director of the Centre for European

Studies of the University of Twente, The Netherlands.

x List of Contributors

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Introduction

Marise Cremona and Bruno de Witte

This volume of essays reappraises what we call the constitutional funda￾mentals of EU foreign relations law. We use the term foreign relations law

to cover all EU external relations law, including each of the three pillars of

the existing European Union architecture. Indeed, one important factor

that explains the publication of this volume at this particular time is the

planned entry into force, in 2009, of the Treaty of Lisbon which creates a

modified and much more unified framework for the whole of the EU’s

foreign relations. One of the most obvious characteristics of the Treaty of

Lisbon is the formal absorption of the European Community by the

European Union, the advantage of which will be particularly tangible in

the external domain, since it will put an end to the rather absurd situation

in which the ‘group of 27’ addresses the outside world with changing

personalities, often as ‘European Community’ but also sometimes as

‘European Union’. The reasons for this chameleonic behaviour were rather

bemusing for that outside world, as well as for the European Union’s own

citizens.

Apart from the end result of the reform process, which is enacted in the

Treaty of Lisbon, that process itself, because of its length and mostly

inclusive nature (except in the very last phase), provided an occasion for

political deliberation and academic debate about the character of the

Union’s overall legal framework, and the external dimension occupied a

prominent place in the reform debates.

However, this volume is not proposed by us as a commentary on the

recent Treaty changes. It devotes at least as much, if not more, attention to

the incremental change in the Union’s foreign relations law that has taken

place in recent years. Indeed, at the same time as the Treaty reform process

unfolded, the EU institutions and the Member State governments have

carried forward a series of important changes in the form and content of

the Union’s foreign relations. A first element of relative novelty is the

ever-increasing cross-pillar nature of much EU external action, which is

giving rise to a growing number of inter-pillar disputes and questions over

the relationships between the pillars, some of which have been put before

the European Court of Justice for their resolution. Secondly, unprecedented

legal questions are arising over the implications of the changing nature of

the external action of the Union and its Member States and the interna￾tional obligations weighing on them: typical examples are the adoption

and enforcement of anti-terrorism legislation, the conclusion of human

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rights sensitive bilateral agreements in the field of migration, border

crossing and criminal justice, and the increasing number of EU military

and civilian missions abroad. This abundant practice has, thirdly, revived

the debate on structural issues related to the accountability of foreign

relations policy and practice to democratic and judicial review within the

EU framework and at the national level.

In the light of these new developments and rekindled debates, we

propose in this volume to re-examine and reassess the basic principles of

EU foreign relations law that have emerged over almost 40 years of

incremental Treaty-based and judicial development. Of course, the original

text of the EEC Treaty already devoted some space to external relations,

and the European Communities quickly started to enact externally directed

measures and to conclude international agreements, some of which were

truly important; one could mention, for example, the association agree￾ment with Turkey, concluded in 1963, which is still politically and legally

very relevant today because of its promise of ultimate EC membership of

Turkey and because it is the source of the rich case-law of the ECJ dealing

with the equal treatment rights of Turkish citizens residing in the Union.

However, very little attention was paid in those initial years to the

constitutional dimension of the Community’s external relations, with some

few exceptions, most notably the course presented at The Hague Academy

by the later ECJ judge Pierre Pescatore in 1961.1 Only in the early 1970s

does this constitutional interest emerge, following two important European

Court of Justice rulings: the ERTA judgment in 1971 dealt with the legal

framework for treaty-making in the EC, and in particular the division of

competences between the EC and its Member States, whereas the Interna￾tional Fruit judgment, one year later, dealt with the other side of the coin,

namely the effects of external agreements in both ‘domestic’ legal orders,

that of the EC itself and that of its Member States.

Since the mid-1980s, we have seen a major expansion of the Treaty

provisions dealing with foreign relations due to the Single European Act

and the Treaty of Maastricht which, taken together, multiplied the number

of externally flavoured Treaty articles and thereby also the questions raised

by overlapping legal basis provisions. At the same time, we have seen a

rapid thickening of judge-made constitutional law relating to the respective

roles of the Commission, the Council and the Parliament, to the intricate

division of competences between the EC and the Member States, and their

respective duties, and to the protection of individual rights and the right to

invoke norms of external EU law before the ECJ and the national courts,

to name just the principal areas of judicial law-making.

1 P Pescatore, ‘Les relations extérieures des Communautés européennes: contribution à la doctrine

de la personnalité des organisations internationales’ (1961) 103-II Recueil des cours 1.

xii Introduction

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As a result of this development, the EU’s foreign relations has grown

massively in volume and complexity and this has given rise, in recent years,

to the publication of a number of comprehensive textbooks wholly devoted

to the external dimension of EU law. It has also revived the need to reflect

on the underlying principles of this legal regime, in other words: its

constitutional fundamentals.

The use of that term in the title of this volume requires, perhaps, some

justification. The founding Treaties of the European Union entrench

institutional and other legal norms by putting them beyond the reach of the

EU legislator, thus creating a rather strict distinction in EC and EU law

between ‘primary law’ and ‘secondary law’. It is tempting to use the

‘domestic analogy’ to describe this distinction, and therefore to consider

the Treaties as forming the constitutional law of the EU. Indeed, the

European Court of Justice itself called the EC Treaty the constitutional

charter of the Community and many of its members, in their extra-judicial

writings, have advocated the use of the domestic analogy long before the

political actors embarked, in 2002, on their effort to enact an instrument

that would have replaced the current Treaties and be named a Constitu￾tional Treaty.

Despite the fact that the political actors at the European Council of

Brussels in June 2007 abjured the use of this constitutional language, and

carefully removed it from what became the Lisbon Treaty, it is quite likely

that legal authors (and the members of the European Court) will continue

to speak of the constitutional law of the EU based on the domestic

analogy: since the Treaties occupy a higher rank in the legal hierarchy than

the acts of the EU institutions, and since the Treaties fulfil several of the

functions which a constitution fulfils at the national level, it is proper to

consider the Treaties as forming the Union’s constitutional instrument, and

to consider that its now numerous provisions dealing with foreign relations

form the Union’s droit constitutionnel externe.

However, this formal definition is not entirely satisfactory, because it is

both under- and over-inclusive. It is under-inclusive since it has become

clear, in the course of the past decades, that the written norms of the

founding Treaties are complemented by another judge-made source of

higher law, namely the general principles of Community and Union law.

Most notably, the protection of the fundamental rights of the individual

against interference by the EU institutions is based on this complementary

source of primary law and its impact on external relations has been very

notable in recent years. The formal definition is also over-inclusive, since

the text of the founding Treaties contains many (indeed, too many) detailed

provisions which one would not normally find in a national constitutional

text. Therefore, by focusing on the constitutional fundamentals, this book

aims to identify the main norms and principles of the written and

unwritten primary law of the European Union, with particular attention to

Introduction xiii

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the way in which these norms and principles are being reshaped by current

changes in the Union’s internal regime and in its external environment.

A recurring theme in the chapters of this volume is that of the

distinctiveness of the ‘external constitution’. Does it make sense to talk

about an external constitution which is somehow separate or different

from the Union’s internal constitution? Similarly, in what sense does the

EU’s nature as an international organisation of conferred, but expanding,

powers require a different approach to foreign relations law from that

traditionally adopted by its Member States? With reference to this double

distinctiveness question (the external versus the internal, and the EU

constitution versus the national constitutional traditions), the themes of

this book can, roughly speaking, be divided in three broad categories.

After an introductory chapter in which De Witte wonders whether the

European Union has an overabundance of constitutional norms, compared

to what one typically finds at the national level, a first group of chapters

addresses the ‘idiosyncratic’ themes, namely those that are really specific to

EU foreign relations law, and do not arise in a comparable way either at

the internal EU level, or in the external relations constitutions of the

Member States. This is, of course, primarily the case for the current

distinction between the EU and the EC, and the related questions of the

dividing line between the first and second pillars in the practice of foreign

relations, which are addressed respectively by Herrmann and Dashwood.

The chapter by Hillion and Wessel examines the little-studied question of

the legal limitations which EU action in the ‘intergovernmental’ second

pillar imposes on the Member States.

This chapter forms a transition to the second group of contributions

which examine the ‘external’ counterpart of central constitutional ques￾tions of EU law that also have an important internal dimension. This is

clearly the case with Cremona’s chapter on the duties of cooperation and

compliance; although these duties originated in the domain of ‘internal’ EC

law, they now play a probably more important role in shaping the nature

of the relations between the EU and its Member States in the field of their

international relations. Another closely related general question of EU

constitutional law is the division of competences between the EC/EU and

its Member States, and the question of the choice of legal basis, discussed

in the chapter by Koutrakos. Although some of the key principles in this

matter are identical to those applying to the internal policies of the EU, the

external side presents its own problems, if only because of the presence of

third states and the wish of the EU Member States to continue to appear, as

much as possible, in their own right on the international scene.

The remainder of the chapters deal with themes that are ‘classically

constitutional’, in the sense that they also arise, in roughly similar terms, in

the constitutional order of the contemporary nation state. This is true for

the question of parliamentary accountability in international relations,

xiv Introduction

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