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Page 1 of 2

  • When Caveats Turn into Locks: Opinion 2/13 on Accession of the European Union to the ECHR

  • Adam Łazowski, Ramses A. Wessel
  • Journal:
    German Law Journal / Volume 16 / Issue 1 / 01 March 2015
    Published online by Cambridge University Press:
    06 March 2019, pp. 179-212
    • Article
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  • The Court of Justice of the European Union (the Court of Justice) decided to strike again. On 18 December 2014, for the second time in history, the Court rejected the European Union's (EU) accession to the European Convention on Human Rights (ECHR). Although the judges do not seem to negate the idea as a matter of principle, they made the renegotiation of the Draft Accession Treaty very difficult, to say the least. The message sent by the Court of Justice to the Member States may have surprised some, but for many it was a rather expected development. The Court of Justice has always been a fierce defender and promoter of the autonomy of EU law. For that purpose, the procedure based on Article 218 (11) TFEU has been, among the others, the Court's greatest weapon. Over the years a clear pattern has emerged: Whenever there is a threat to the autonomy and to the Court's exclusive jurisdiction, the judges will not shy away from taking bold decisions going against the will of the Member States. For obvious reasons, the raison d'être behind the Court's decision is kept secret behind the doors of the deliberation rooms at Kirchberg in Luxembourg. Still, it cannot be denied that Opinion 2/13 shows that the Court of Justice will not give up its resistance to the ECHR accession so easily. In 1996, in Opinion 2/94, the Court held that the European Community, as the law stood then, had no competence to accede to ECHR. Now that Article 6(2) TEU provides for an obligation to accede, subject to conditions laid down in Protocol No 8 to the Founding Treaties, the Court has opted for strict interpretation of the latter, which, ultimately turns the caveats laid down therein into locks. It is clear that these caveats turned into locks are something that the judges will hold on to in the future and, by the same token, they will happily pursue interpretation that is very different from what the Member States intended when negotiating the Treaty of Lisbon and the Draft Accession Agreement.

EU External Relations Law
  • Text, Cases and Materials
  • Bart Van Vooren, Ramses A. Wessel
  • Published online:
    28 May 2018
    Print publication:
    24 April 2014
  • This major new textbook for students in European law uses a text, cases and materials approach to explore the law, politics, policy and practice of EU external relations, and navigates the complex questions at the interface of these areas. The subject is explored by explaining major constitutional principles, and elaborating upon them in policy-specific chapters ranging from common commercial policy and development policy over CFSP/CSDP and AFSJ to energy and enlargement policy. Specific attention is given to the relationship between European integration, the role of law, and the EU as an effective international actor. Designed for easy navigation, chapters include key objectives, summaries and textboxes, which frame key issues and guide the reader through the functioning of legal principles. Students gain a detailed understanding of the historical development, context and present functioning of EU external relations law in a highly politicised European and international environment.

  • Between Pragmatism and Predictability: Temporariness in International Law

  • Mónika Ambrus, Ramses A. Wessel
  • Journal:
    Netherlands Yearbook of International Law / Volume 45 / December 2014
    Published online by Cambridge University Press:
    17 June 2015, pp. 1-17
    Print publication:
    December 2014

  • One of the key functions or purposes of international law (and law in general for that matter) is to provide long-term stability and legal certainty. Yet, international legal rules may also function as tools to deal with non-permanent or constantly changing issues, and rather than stable, international law may have to be flexible or adaptive. Prima facie, one could think of two main types of temporary aspects relevant from the perspective of international law. First, the nature of the object addressed by international law or the ‘problem’ that international law aims to address may be inherently temporary (temporary objects). Second, a subject of international law may be created for a specific period of time, after the elapse of which this entity ceases to exist (temporary subjects). These types of temporariness raise several questions from the perspective of international law, which are hardly addressed from a more conceptual perspective. This volume of the Netherlands Yearbook of International Law aims to do exactly that by asking the question of how international law reacts to various types of temporary issues. Put differently, where does international law stand on the continuum of predictability and pragmatism when it comes to temporary issues or institutions?

  • 10 - EU development policy

  • Bart Van Vooren, Ramses A. Wessel, University of Twente, Enschede, The Netherlands
  • Book:
    EU External Relations Law
    Published online:
    28 May 2018
    Print publication:
    24 April 2014, pp 311-345

  • Summary

    Central issues

  • Development cooperation policy is as old as the European integration project itself. Objectives in this policy area have evolved from associating EEC Member States’ colonies with focus on trade and aid, to a progressively broader development agenda incorporating human rights, sustainable development aspects such as environment and social issues, and most recently links to (common foreign and) security policy.

  • EU development policy can be defined through the three C’s which have been expressly incorporated into the competence-conferring provisions of the TFEU: complementarity, coherence and coordination.

  • Complementarity is laid down generally in Article 208(1) TFEU, and broadly implies that the exercise of EU and Member State competences shall complement and reinforce each other. From the perspective of the nature of the EU’s development competence, it means that EU action does not pre-empt Member State action (Article 4(4) TFEU), thereby making coherence and coordination between these levels crucial.

  • Coherence is also contained in Article 208 TFEU and is composed of three aspects: first, coherence of EU development cooperation with the more general principles and objectives of EU external relations (Article 21 TEU); secondly, poverty reduction as the primary policy objective providing intra-policy focus on how diverse development initiatives cohere to the central goal; thirdly, the obligation to take account of development objectives in other policies which are likely to affect developing countries.

  • Coordination is laid down in Article 210 TFEU, and entails that EU and Member States must proactively collaborate and consult in order to ensure complementarity and coherence of their respective EU development policies. Article 210 TFEU gives the Commission a central role in ensuring coordination of EU and Member State development cooperation initiatives.

  • 12 - Common Security and Defence Policy

  • Bart Van Vooren, Ramses A. Wessel, University of Twente, Enschede, The Netherlands
  • Book:
    EU External Relations Law
    Published online:
    28 May 2018
    Print publication:
    24 April 2014, pp 400-437

  • Summary

    Central issues

  • For almost fifty years, security and defence cooperation was excluded from the EU and in fact enjoyed ‘taboo status’. Member States were hesitant to hand over powers in this sensitive area to the ‘supranational’ EC and many preferred to give priority to cooperation in NATO. Yet, since the beginning of the third millennium, CSDP has developed into a fully fledged policy, as part of the CFSP (see Chapter 11), but increasingly as a stand-alone policy field with its own rules, procedures and bodies.

  • This chapter will address decision-making in CSDP as well as the role of the institutions and the available legal instruments. We will also go back in time to trace the origins of CSDP, in order to explain its current nature. Over twenty-five missions have been established since the creation of CSDP, and in this chapter we will look at the different types of missions as well as at their (international) legal ramifications.

    • Introduction

    In the previous chapter we referred to the origins of the Union’s foreign, security and defence policy. As we have seen, during the 1950s and 1960s far-reaching proposals were tabled to establish a common defence policy with supranational features. These proposals were never accepted, and a security and defence policy developed partly as part of the CFSP and partly autonomously. Over the last decade, the EU has launched over twenty-five civilian missions and military operations on three continents deployed in response to crises, ranging from post-tsunami peace-building in Aceh, to protecting refugees in Chad, to fighting against piracy in and around Somalian waters. The CSDP has developed into a major policy area in EU external relations. Like CFSP, it is formed on the basis of specific rules and procedures, but at the same time we have witnessed a development from a largely intergovernmental policy area to a ‘Brussels-based’ cooperation in which EU preparatory organs play a leading role.

  • 9 - Common Commercial Policy

  • Bart Van Vooren, Ramses A. Wessel, University of Twente, Enschede, The Netherlands
  • Book:
    EU External Relations Law
    Published online:
    28 May 2018
    Print publication:
    24 April 2014, pp 276-310

  • Summary

    Central issues

  • This chapter deals with a policy area that is traditionally seen as forming the heart of EU external relations law. The CCP not only formed the start of the development of EU external relations, it still forms a key example of a policy area in which internal and external policies are inextricably linked.

  • In this chapter we will analyse the principles and instruments of the CCP. Irrespective of the scarce references in primary law, the Union has developed several instruments to shape this policy area. We also look at the roles of the Union institutions and the applicable decision-making procedures.

  • Finally, this chapter will analyse the relation between the internal market and the external trade, and address the question of how this relationship influenced the development of CCP.

    • Introduction

    The CCP is ‘the mother of all EU external relations policies’. In the early days, many authors would even have a tendency to equate EU external relations law to CCP, and still many textbooks would explain basic notions underlying EU external relations law with extensive references to CCP, so as to illustrate the development of the scope of an existing competence. It is true that the existence, nature and scope of external competences (see Chapters 3–5) have largely been defined by reference to early cases in the area of CCP. In this chapter we will occasionally return to these basic notions, but will predominantly look at CCP as an institutional and substantive policy area.

  • 4 - Nature of EU external competence

  • Bart Van Vooren, Ramses A. Wessel, University of Twente, Enschede, The Netherlands
  • Book:
    EU External Relations Law
    Published online:
    28 May 2018
    Print publication:
    24 April 2014, pp 99-137

  • Summary

    Central issues

  • Once it is established that competence for the Union to act exists, we must examine the impact this will have for the Member States’ ability to act internationally. This is the question of the ‘nature’ of EU competence, and is subdivided into two main categories according to how they impact the Member States’ powers: exclusive EU competence, or shared with the Member States.

  • In the category of exclusive competences, we distinguish between a priori exclusivity, conditional exclusivity and exclusivity through necessity. In the first instance, EU primary law expressly states that a given competence is to be exercised by the EU alone. In the case of conditional exclusivity, Member States are pre-empted from acting when their international action may affect common rules adopted by the EU. The third is a minor sub-category of conditional exclusivity.

  • In the category of shared competences we distinguish between: shared pre-emptive competences, shared non-pre-emptive (complementary) powers, supplementary powers and parallel powers. In each category the scope for the EU and the Member States to act alone or alongside each other differs, depending on the fulfilment of certain conditions. Much of this chapter is focused on the first category, namely the conditions under which the exercise of a shared competence will pre-empt Member State international action, and the legal justification given by the CJEU.

  • 13 - The external dimension of the internal energy market

  • Bart Van Vooren, Ramses A. Wessel, University of Twente, Enschede, The Netherlands
  • Book:
    EU External Relations Law
    Published online:
    28 May 2018
    Print publication:
    24 April 2014, pp 438-474

  • Summary

    Central issues

  • Collaboration in the energy sector goes back to the ECSC, yet to this day no full-blown EU external energy policy exists. In this chapter we first examine the development of the EU internal energy market, focusing on how an external dimension has recently started to develop to serve EU internal needs.

  • Substantive dimension: the Lisbon Treaty had the purpose of strengthening coherence in EU external relations, and expressly conferred an energy competence onto the EU (Article 194 TFEU). This chapter examines policy coherence in EU external energy policy from the substantive, institutional and vertical dimensions. Here the focus lies on the relationship between energy diplomacy, security of supply and the law-based market-orientated approach. The chapter queries whether the new competence will permit a more integrated approach between different objectives of EU energy policy.

  • In the current setting, there is disagreement on the respective roles of the HR and the EEAS; and the Commission and the Energy Commissioner. These bodies have different perspectives on what EU external energy policy is about, with significant impact on the external dimension of the internal energy market. The strengthened role of the EP in EU external energy policy is also to be taken into account.

  • The progressive advancement of the internal energy market has suffered from a limited political recognition by the Member States that there was the need for a fully fledged external dimension. This is due to the continued priority of Member State national interests over the common EU interest, leading to a significant lack of Member State compliance with Union law on the path to completing the internal market. Similar processes can be observed in the external dimension of the internal energy market, and this chapter therefore pays significant attention to the duty of cooperation as it has been formalized in a legally binding instrument at the end of 2012.

  • 8 - The EU and international institutions

  • Bart Van Vooren, Ramses A. Wessel, University of Twente, Enschede, The Netherlands
  • Book:
    EU External Relations Law
    Published online:
    28 May 2018
    Print publication:
    24 April 2014, pp 246-275

  • Summary

    Central issues

  • This chapter explores to what extent the EU Treaties, secondary legislation and case law regulate the position of the EU in international institutions, understood as both formal international organizations and the less formal treaty-regimes. As highlighted by the position of the EU in the WTO in particular, the division of competences between the EU and its Member States forms an important part of this legal framework.

  • The Treaties list a number of general and specific competences related to the participation of the EU in international institutions. This chapter will list and analyse those provisions in order to assess the legal possibilities in this area.

  • The EU participates in many international organizations and other international forums. In which international institutions does the EU have a formal position, and which different forms of representation can be discovered?

  • Two examples deserve special attention: the WTO and the UN. On the basis of the participation of the EU in these two major organizations, we will further analyse the complexities related to this international role of the EU.

  • Finally, the active participation of the EU in international institutions leads to a number of normative effects of these organizations on the EU. What is the influence of international institutions on the EU?

    • Introduction

    As explained in Chapter 1, with the entry into force of the Lisbon Treaty, the EU has entered a new phase. No longer is the world confronted with both the EC and the EU as actors on the international stage; since 1 December 2009 the EU acts as the legal successor to the EC (Article 1 TEU), while maintaining one of its original policy fields: the foreign, security and defence policy (see Chapters 11 and 12). The EU has thus also replaced the Community in international institutions. In addition, the Lisbon Treaty increased the number of references to the role of the Union in the world and to its relationship with the United Nations (Article 21 TEU).

  • 15 - The EU and its neighbours

  • Bart Van Vooren, Ramses A. Wessel, University of Twente, Enschede, The Netherlands
  • Book:
    EU External Relations Law
    Published online:
    28 May 2018
    Print publication:
    24 April 2014, pp 516-569

  • Summary

    Central issues

  • This chapter examines the wide ranges of policies and means through which the EU engages with the countries in its neighbourhood: first, EU enlargement policy, which is sometimes considered the most successful of all EU external policies; second, the EU has developed the ENP for those countries that are not eligible for membership either permanently or in the short to medium term; third, the Stability and Association Process (SAP) with the Western Balkan countries; fourth, EU relations with the EEA/EFTA countries; fifth and finally, EU relations with the Russian Federation.

  • The EU has gone through seven rounds of enlargement. At present, we can speak of a true EU enlargement ‘policy’ with its own legal basis, rationale, objectives, instruments and decision-making dynamic. This chapter explains the key criteria and soft and hard legal instruments that make up this policy. It utilizes the 2004 ‘big bang enlargement’ to explain how this policy has grown in a piecemeal fashion. Looking to the future, the chapter indicates how future enlargements may raise novel questions, and how the EU’s response will almost certainly be influenced by individual Member State interests.

  • The ENP originated from the fifth enlargement in 2004, and aims to create a special relationship with those third countries to the south and east that were not included in that process. From an instrumental perspective, this policy provides an excellent case study of the use of soft law in EU external relations law. From a methodological perspective, it illustrates how the EU has drawn on objectives and processes from EU enlargement policy, and applied them in a non-accession context, with commensurate difficulties. As regards instruments, it builds on binding bilateral frameworks, and then utilizes a plethora of soft legal documents to reorientate them towards new neighbourhood objectives.

  • The SAP applies to the Western Balkans countries, and has an express EU accession perspective: Serbia, FYROM, Albania, Kosovo, Montenegro, and Bosnia and Herzegovina. Croatia emancipated from this policy upon its accession in July 2013. The policy is based on Stabilisation and Association Agreements (SAA) which have been concluded specifically to stabilize the region, utilizing conditionality and legal approximation to attain their accession objective.

  • …

  • 11 - Common Foreign and Security Policy

  • Bart Van Vooren, Ramses A. Wessel, University of Twente, Enschede, The Netherlands
  • Book:
    EU External Relations Law
    Published online:
    28 May 2018
    Print publication:
    24 April 2014, pp 346-399

  • Summary

    Central issues

  • The Union’s foreign and security policy is based on a set of compromises. From the outset, Member States have been hesitant to hand over powers in this area. Yet, the strong links with other policies as well as the single institutional structure caused an integration of CFSP into the Union legal order. While its distinct nature remains clearly visible, CFSP has become part and parcel of the EU’s external relations regime.

  • In this chapter we will address the historical explanations for the current place of CFSP in the EU legal order. We will analyse the attempts to start political cooperation before the 1990s and will assess the current provisions in that context. We will also address the role of the institutions (including the role of the CJEU) in CFSP as well as the decision-making procedures. Finally, we will assess the legal nature and function of the CFSP instruments.

    • Introduction

    The CFSP of the EU has for decades been the ‘odd one out’. It emerged separately from the EEC in an incremental, pragmatic fashion at the beginning of the 1970s. The process was stimulated through the realization that the coordination of the different foreign policies of the (six, then nine, etc.) Member States was helpful, and occasionally even necessary, for the Community to pursue its goals. At present CFSP objectives have become an integral part of the overall objectives of the Union. Thus, this policy area has developed from a purely intergovernmental form of information exchange, coordination and cooperation in the days of the EPC, to an EU competence in its own right and an area in which the Member States have accepted significant forms of institutionalization and legalization.

  • 3 - Existence of EU external competence

  • Bart Van Vooren, Ramses A. Wessel, University of Twente, Enschede, The Netherlands
  • Book:
    EU External Relations Law
    Published online:
    28 May 2018
    Print publication:
    24 April 2014, pp 74-98

  • Summary

    Central issues

  • The EU possesses legal personality and capacity to act as a legal subject in international relations. However, the EU cannot undertake whatever international action it wishes. Its capacity is governed by the principle of conferral laid down in Article 5 TFEU, which states that the Union shall act within the powers conferred on it by the Member States. As regards external competence of the Union, we distinguish between the existence, nature and scope of that power.

  • In this chapter we examine the conditions under which competence to act externally will exist for the Union. First, this is the case when the Treaty expressly confers such external competence on the Union. Second, such competence may also be implied when, pursuant to the ERTA principle, the EU has adopted internal rules on the basis of expressly conferred internal powers; or when, pursuant to the complementarity principle, in the absence of internal rules, it is necessary to attain an EU Treaty objective for which the Treaty confers upon the Union an internal power. Third, when none of the above-mentioned sources are available, recourse to Article 352 TFEU is possible if this is necessary to attain objectives set for the Union in the EU Treaties.

  • Political battles between the institutions and Member States over international presence and representation have regularly translated into litigation concerning the question of whether the EU actually has competence at all. In resolving these conflicts, the CJEU has shown itself sensitive to the legal–political context of European integration in which the legal proceedings took place. At times borderline activist, at other times protective of Member States’ sovereignty, the role of the CJEU in this area of law, and consequently in the development of the EU as an international actor, cannot be understated.

  • 7 - EU law and international law

  • Bart Van Vooren, Ramses A. Wessel, University of Twente, Enschede, The Netherlands
  • Book:
    EU External Relations Law
    Published online:
    28 May 2018
    Print publication:
    24 April 2014, pp 208-245

  • Summary

    Central issues

  • The EU is usually considered a special, or sui generis, organization (see Chapter 1). This special status does not only flow from the relationship with its Member States (which indeed differentiates it from other international organizations), but also from its position towards international law. In the early days in particular, the CJEU tended to underline this special position by referring to the ‘autonomous’ legal order that was created in which the relationship between the Member States was no longer primarily regulated by international law, but by EU law. Indeed, the states were first and foremost Member States.

  • Yet, without international law, the EU would not exist. It is based on a treaty concluded within the framework of international treaty law. At the same time, and keeping in mind the rule of pacta tertiis nec nocent nec prosunt, third states are in principal not bound by the EU Treaty since to them it is an agreement between others. This implies that in its external legal relations the EU will have to act under international law and will also have to respect its basic rules. Within the EU legal order, however, this may lead to conflicting norms, and over the years the Court has had quite a task in finding solutions for these conflicts.

  • This leads to a number of questions that will be addressed in this chapter: what is the hierarchical position of international law within the EU legal order? What are the effects of international law (both written and unwritten) in the EU legal order? How did the ECJ solve conflicts between EU law and international law?

  • …

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