UE in Alte OI Capitol Carte

European Foreign Policy
European Foreign
Policy
Legal and Political Perspectives
Edited by
Panos Koutrakos
Professor of European Union Law and Jean Monnet Chair in
European Law, , UK
Edward Elgar
Cheltenham, UK Northampton, MA, USA
The Editor and Contributors Severally 2011

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Contents
List of contributors
Acknowledgements
vii
ix
Introduction
Panos Koutrakos
PART I
1
55
95
115
THE EUROPEAN UNION AND ITS NEIGHBOURS
The European Union as an international actor and progressive

experimentation in its neighbourhood
Bart Van Vooren
The European Unions policy on Kosovo
Stephan Keukeleire, Arben Kalaja and Artan ollaku
PART IV
15
EUROPES JUDGES AND THE INTERNATIONAL ORDER
Vlkerrechtsfreundlich? International law and the Union

legal order
Jan Klabbers
Vlkerrechtsfreundlichkeit as comity and the disquiet of
neoformalism: a response to Jan Klabbers
Achilles Skordas
PART III
5
COHERENCE IN EUROPEAN UNION FOREIGN POLICY
Consistency, coherence and European Union external action:

the path to Lisbon and beyond
Simon Duke
Coherence in European Union foreign relations law
Marise Cremona
PART II
3
147
172
COMMON SECURITY AND DEFENCE POLICY
The Common Security and Defence Policy in a multilateral world

Mark Webber
v
205
vi
European foreign policy
The role of law in Common Security and Defence Policy:

functions, limitations and perceptions
Panos Koutrakos
235
PART V THE EUROPEAN UNION IN INTERNATIONAL

ORGANIZATIONS
9
The position of the European Union in (other) international

organizations: confronting legal and political approaches
Knud Erik Jrgensen and Ramses A. Wessel
Index
261
287
Contributors
Artan ollaku works at the Ministry of European Integration (MEI) in
Prishtina.
Marise Cremona is Professor of European Law and Head of the Department
of Law at the European University Institute, Florence.
Simon Duke is Professor at the European Institute of Public Administration in
Maastricht (the Netherlands).
Knud Erik Jrgensen is Professor of Political Science at Aarhus University,
Denmark.
Arben Kalaja works at the Ministry of European Integration (MEI) in
Prishtina.
Stephan Keukeleire is a Jean Monnet Professor in European Foreign Policy
at the Institute for International and European Policy of the University of
Leuven (K.U.Leuven, Belgium), a visiting professor at the College of Europe
(Bruges, Belgium) and co-author of The Foreign Policy of the European
Union (Palgrave Macmillan).
Jan Klabbers is Professor of International Organizations Law at the
University of Helsinki, and Director of the Academy of Finland Centre of
Excellence in Global Governance Research. During the academic year
20092010, he was one of the inaugural fellows at the Straus Institute for the
Advanced Study of Law and Justice at New York University.
Panos Koutrakos is Professor of European Union Law and Jean Monnet
Chair in European Law at the , UK.
Achilles Skordas is Professor of International Law at the University of
Bristol, UK. During the academic year 20092010, he was Visiting Scholar at
the Institute for Global Law and Policy, Harvard Law School, and holder of a
Fellowship.
vii
viii
Bart Van Vooren is Assistant Professor at the Faculty of Law, University of

Copenhagen.
Mark Webber is Professor of International Politics and Head of the School of
Government and Society at the University of Birmingham, UK.
Ramses A. Wessel is Professor of the Law of the European Union and Other
International Organizations at the Centre for European Studies of the
University of Twente, the Netherlands.
Acknowledgements
This collection of essays originates in a workshop which took place at the
, UK on 23 January 2009. The generous support by the
Institute for Advanced Studies made this possible. It was
also supported by the Jean Monnet Chair in European Law, University of
Bristol School of Law, funded by the European Commission.
ix
Introduction
Panos Koutrakos
THE RATIONALE FOR THIS VOLUME: A MEETING AND
A CONVERSATION
To argue that the European Union has become an international actor is to state
the obvious. Since the establishment of the Communities in the 1950s, and in
the light of successive rounds of internal constitutional and institutional reform,
the Union has developed a sophisticated network of relations with its neighbours, considerable links with third states and international organisations, a
framework for a political, security and defence policy to accompany its external economic policies, an institutional infrastructure to support it, and has
engaged in a wide range of security and defence operations around the globe.
A number of internal and external factors have raised the profile of the
Unions international role: the consolidation of European integration, the
introduction of a common currency, and the recent rounds of enlargement,
along with the new international environment shaped by the terrorist attacks
first in New York and then in Madrid and London, the wars in Afghanistan and
Iraq, the increasing interdependence on the international scene, to name a few,
have all rendered the development of the Unions international relations fast
and that of its ambition even faster.
This ambition is reflected in the long and painful process of group therapy
which the Union has undergone in the last nine years. The Laeken Declaration
on the Future of the European Union, which initiated the process of reform of
the Unions Treaties in December 2001, referred prominently to Europes new
role in a globalised world and raised the bar quite high: Does Europe not,
now that it is finally unified, have a leading role to play in a new world order,
that of a power able both to play a stabilising role worldwide and to point the
way ahead for many countries and peoples?1 The role it envisaged was
directly linked to its responsibilities in the governance of globalisation which
Europe needs to shoulder.2 This notion of increased involvement in world
1
2
European Council, 1415 December 2001, p2.

Ibid.
1
affairs, coupled with a sense of responsibility, was further underlined in the

European Security Strategy (ESS) which, against the backdrop of the terrorist
attacks in New York, stated that Europe should be ready to share in the
responsibility for global security and in building a better world.3
The focus on the Unions international role was also apparent in the process
of the ratification of the Treaty Establishing a Constitution for Europe. On the
day of the signing of that Treaty, the then President of the European
Commission Romano Prodi stated that today, Europe is reaffirming the
unique nature of its political organization in order to respond to the challenges
of globalisation, and to promote its values and play its rightful role on the
international scene.4 And the Lisbon Treaty, which drew upon the
Constitutional Treaty, maintained this focus, and was widely viewed as
enabling the Union to carry out a more effective and coherent foreign policy.
During the RussiaGeorgia crisis in 2008, for instance, President Sarkozy of
France, then holder of the rotating EU Presidency, argued that, had the Lisbon
Treaty entered into force, the Union would have had the appropriate institutions to deal with international crises.5
Far from being confined to academic exchanges between specialists and
policy-makers, the discussion of the Unions foreign policy has attracted
considerable attention from a wide audience. The Common Foreign and
Security Policy and the Common Security and Defence Policy are two of the
most popular EU policies, commanding wide support of EU citizens (including those in the United Kingdom). And the debate about the direction of the
Union on the world scene has also attracted publicity beyond the circles of
experts. For instance, the analysis which associates the Union and its attachment to soft power with Venus and contrasts it to the United States Mars, has
been discussed widely.6
The increasingly prominent position of the Unions foreign policy in
policy-making circles and public opinion has been matched in academic literature. There is voluminous literature on the role of the EU in the world, its
ambitions, scope, effects and future. A considerable part of it is written by
political scientists and international relations theorists7 and it has given rise to
3
A Secure Europe in a Better World European Security Strategy (Brussels,
December 12, 2003), p1.
4
Speech delivered in Rome at the ceremony on the signing of the
Constitutional Treaty (http://www.europa.eu.int/constitution/speeches en.htm).
5
Le Figaro, 18 August 2008.
6
Kagan, R., Paradise and Power: America and Union in the New World Order
(London: Atlantic Books 2003).
7
For a very small sample, see, amongst others, Duke, S., The Elusive Quest for
European Security: From EDC to CFSP (London: MacMillan 2000), Howorth, J.,
Security and Defence Policy of the European Union (Palgrave 2007), Jones, S.G., The
Introduction
a healthy debate about the Unions international posture.8 On the other hand,
it seems that, for a long time, legal scholars were mainly concerned with the
unique features of European integration which were developed incrementally
over the years and shaped, to a very considerable extent, by the European
Court of Justice. The attraction of the development of European integration for
lawyers was encapsulated by Weiler in an essay he wrote originally in the
early 1990s: [i]n some ways, Community law and the European Court were
everything an international lawyer could dream about: the Court was creating
a new order of international law in which norms were norms, sanctions were
sanctions, courts were central and frequently used, and lawyers were important.9
However, the development of the Unions international posture, the widening
scope of the Unions activities, and the increasingly prominent involvement of the
European Court of Justice in the area have attracted the attention of legal scholars too. In the last few years, there has been an increasing stream of publications.
These examine the principles governing the conduct of the EUs external
economic and political relations in their constitutional and institutional context,10
Rise of European Security Cooperation (Cambridge: Cambridge University Press
2007), Mrand, F., European Defence Policy: Beyond the Nation State (Oxford: Oxford
University Press 2008), Mller-Brandeck-Bocquet, G., (ed.), The Future of the
European Foreign Security and Defence Policy After Enlargement (Baden Baden:
Nomos 2006), Merlingen, M. and Ostrauskaite, R. (eds), The European Security and
Defence Policy: Operationalisation, Impact and Context (London: Routledge 2007),
Merlingen, M. and Ostrauskaite, R., European Union Peacebuilding and Policing
(London: Routledge 2006), Merlingen, M. and Ostrauskaite, R. (eds), The European
Security and Defence Policy: An Implementation Perspective (London: Routledge
2007), Giegerich, B., European Security and Strategic Culture: National Responses to
the EUs Security and Defence Policy (Baden Baden: Nomos 2006), Malici, A., The
Search for a Common European Foreign and Security Policy: Leaders, Cognitions,
and Questions of Institutional Viability (Basingstoke: Palgrave 2008), Spence, D. and
Fluri, P. (eds), The European Union and Security Sector Reform (London: John Harper
Publishing 2008), Webber, M., Inclusion, Exclusion and the Governance of European
Security (Manchester: Manchester University Press 2007).
8
See the recent outline of the different stories about the Unions international
role in Manners, I., Global Europa: Mythology of the European Union in World
Politics (2010) 48 JCMS 67.
9
Weiler, J.H.H., The Constitution of Europe (Cambridge: Cambridge
University Press 1999) pp2056.
10
Cannizzaro, E. (ed.), The European Union as an Actor in International
Relations (The Hague: Kluwer 2002), Cremona, M. and de Witte, B. (eds), EU Foreign
Relations Law (Oxford: Hart Publishing 2008), Dashwood, A. and Hillion, C., The
General Law of EC External Relations (London: Sweet and Maxwell 2000), De Baere,
G., Constitutional Principles of EU External Relations (Oxford, Oxford University
Press 2008), Kronenberger, V. (ed.), The European Union and the International Legal
Order: Discord or Harmony? (The Hague: T.M.C. Asser Press 2001).
or provide a reasonably comprehensive analysis of components of EU external

relations,11 or do both.12
The starting point for this book is the realisation that legal and political
science scholarship on the EUs foreign policy has developed along distinct
paths. On the one hand, in terms of its approach, the existing legal literature
examines EU foreign policy as a distinct area of legal analysis, at times independently from the political context and international dynamics within which
the relevant legal rules are applied, hence illustrating a tendency to overestimate the significance of legal rules and procedures. On the other hand, the
political science and international relations scholarship tends, at times, to
underestimate the significance of the latter and the role of the law as the
expression of the constitutionally idiosyncratic nature of the European Union.
Thus, these lines of scholarship have been dealing with similar issues in a
compartmentalised fashion and developing in parallel paths which rarely
meet.
This volume makes no claim to comprehensiveness, and hides no ambition
of putting forward an inter-disciplinary agenda. Its claim is more modest,
namely to make legal, political science and international relationship scholarship meet around certain threads which underpin the EUs international relations. This was, literally, the origin of the volume, as it is based on a workshop
held at the on 23 January 2009 which aimed to bring
together scholars from these different disciplines and engage them in a
dialogue on these threads. By discussing each topic from the legal and political science point of view, it seeks to move away from the compartmentalised
analysis which characterises the existing literature and to highlight the different perspectives which these disciplines bring to the central issues of EU
foreign affairs.
11
Denza, E., The Intergovernmental Pillars of the European Union (Oxford:
Oxford University Press 2002), Griller, S. and Weidel, B. (eds), External Economic
Relations and Foreign Policy in the European Union (Wien: Springer 2002),
Koutrakos, P., Trade, Foreign Policy and Defence in EU Constitutional Law (Oxford:
Hart Publishing 2001), Kronenberger, V. (ed.), The European Union and the
International Legal Order: Discord or Harmony (The Hague: T.M.C. Asser Press
2001), Reichard, M., The EUNATO Relationship: A Legal and Political Perspective
(Aldershot: Ashgate 2006), Wessel, R., The European Unions Foreign and Security
Policy (The Hague: Kluwer 1999).
12
Dashwood, A. and Maresceau, M. (eds), Law and Practice of EU External
Relations (Cambridge, Cambridge University Press 2008), Eeckhout, P., External
Relations of the European Union (Oxford: Oxford University Press 2004), Koutrakos,
P., EU International Relations Law (Oxford: Hart Publishing 2006). See also Cremona,
M. (ed.), Developments in EU External Relations Law (Oxford: Oxford University
Press 2008) for a selective analysis of the main tenets of EU external relations law.
Introduction
THE THREADS
In terms of its focus, the subject-matter of the book meets three criteria. First,
it examines issues of EU foreign affairs which have attracted considerable
interest from both legal scholars and political scientists. This offers considerable scope for useful compare and contrast analyses. Second, these issues are
so central to the direction of the Union as to touch upon its relevance on the
international scene, as well as upon its identity. Third, rather than dealing with
them as distinct areas of activity, each of the issues examined in the book
relates to the entire range of the diverse components of the EUs external relations (economic as well as political, and security). In terms of both the
substantive (on the EUs neighbourhood, and the Common Security and
Defence Policy) and the horizontal chapters (on coherence and judicialisation), the choice of subject-matter focuses on the cross-pillarisation of the
EUs international action: this is examined not as a characteristic of the EUs
external relations in general, but as the core theme of each of its most central
features.
On the basis of the above three criteria, this volume focuses on certain
threads which bring together different strands of EU foreign affairs, and organises them around a conversation between scholars of different backgrounds.
Cremona and Duke produce a complementary perspective on coherence
organised around some central themes, the former examining what it means in
legal terms and how it is understood by the Unions legislature and courts, and
the latter, based on his experience in and around Brussels, setting out the challenges which its application as a political imperative faces. To Klabberss legal
critique of the role of the Court of Justice, Skordas responds with a systems
theory counter-argument. In relation to Europes neighbourhood, whilst Van
Vooren examines the European Neighbourhood Policy as a laboratory for
developing new frameworks of wide-ranging relations relying upon incrementally developed soft-law instruments, Keukeleire, Kalaja and ollaku
assess the effects of the EUs practices on the ground in one of its most sensitive neighbours, namely Kosovo. In relation to security and defence, whilst
Webber sets out the challenges which the EU faces in a multilateral world, this
author examines, amongst others, the shifting legal understandings of one of
its most important aspects, namely the defence industries. And, finally, this
dialogue between legal and political perspectives inspires Jrgensen and
Wessel to combine the insights offered by these disciplines and reflect on a
joint research agenda on the European Unions participation in international
organisations.
Coherence
This volume starts off with two horizontal chapters, that is two analyses of a
principle which underpins the conduct of the entire range of the Unions
foreign policy. The coherence of this policy is a conditio sine qua non of its
effectiveness. Garton-Ash points out that Europe has a hundred left hands and
none of them knows what the right hand is doing. Trade, development, aid,
immigration policy, education, cultural exchange, classic diplomacy, arms
sales and anti-proliferation measures, counter-terrorism, the fight against drug
and organized crime: each European policy has an impact, but the effects are
fragmented and often self-contradictory.13
The coherence of the EUs international action as a normative and political
imperative has been central to the debate about the Unions constitutional
order in general as well as any assessment of the EUs international affairs in
particular. Its role has been apparent at various levels. In relation to substantive policy-making in specific areas, the political institutions have sought to
set out the main contours of the interactions between different policies. The
European Council, for instance, has adopted a Resolution on Coherence
between the Community development cooperation and its other policies,14
followed the European Parliament15 and the Commission.16 Furthermore, the
Council, the Representatives of the Governments of the Member States meeting within the Council, the European Parliament and the Commission adopted
a Joint Statement in November 2005 entitled The European Consensus on
Development.17 Two years later, the same actors adopted a similar document
in the area of humanitarian aid entitled The European Consensus on
Humanitarian Aid.18 These documents stress the multifarious dimensions of
development and humanitarian aid policies, set out common principles and
good practice, and underline the need for coherence, complementarity and
effectiveness as a matter of policy. In addition to this specific policy-focused
13
14
Garton-Ash, T., Free World (London: Penguin 2005) p218.

Annex to Development Council meeting of 5 June 1997. For an analysis, see
Forster, J. and Schram Stokke, O. (eds), Policy Coherence in Development Co-operation (London: Routledge 1999).
15
B5-0117/2000 Resolution on the coherence of the various policies with development policy [2000] OJ C 339/208.
16
COM (2005) 134 fin. Policy Coherence for Development. Furthermore, and
following a request by the Council (on 19 November 2002), the Commission refers
specifically to progress in terms of coherence in its annual report on development
policy.
17
[2006] OJ C 46/1.
18
[2008] OJ C 25/1.
Introduction
activity, the European Commission has put forward some proposals about the
overall international role of the Union.19
In other words, all the relevant actors appear to acknowledge the significance of the links between the different EU external policies and the need to
manage them effectively. In this vein, the European Security Strategy made it
one of the main priorities for the Unions international role,20 and the 2008
Report on the Implementation of the European Security Strategy reaffirmed
it.21 Against this background, it is hardly surprising that the main changes
introduced by the Lisbon Treaty in the area of external relations aim at enhancing the coherence of the Unions external action. This was acknowledged in
the mandate of the 2007 Intergovernmental Conference which mentions it in
its very first paragraph.22
As already mentioned, the coherence of the EUs foreign policy is examined in two chapters. Duke examines it as a political imperative, and places the
specific institutional and procedural tools developed to achieve it in their
evolving political framework. Cremona, on the other hand, approaches coherence as a legal requirement, and analyses its multilayered nature and various
facets both in the process of decision-making and in judicial adjudication.
Europes Judges and the International Order
To suggest that the role of the European Court of Justice has been pivotal to
the development of European integration is to state the obvious. In fact, it is
so obvious that this terrain par excellence for legal scholarship has been gradually brought to the centre of political science studies on European integration.23 The influence of the Court of Justice on the law of the EUs external
19
COM(2006) 278 fin. Europe in the World Some Practical Proposals for
Greater Coherence, Effectiveness and Visibility (Brussels, 8 June 2006).
20
p13.
21
We must strengthen our own coherence, through better institutional co-ordination and more strategic decision-making (p9).
22
See IGC 2007 Mandate, Council SG/11218/07, POLGEN74, para.1. The 2008
Report on the Implementation of the European Security Strategy states that [t]he
provisions of the Lisbon Treaty provide a framework to achieve [the coherence of the
EUs action through better institutional co-ordination and more strategic decisionmaking] (p9).
23
See, for instance, Alter, K.J., The European Courts Political Power (Oxford:
Oxford University Press 2009), Beach, D., Between Law and Politics: The Relationship
between the European Court of Justice and EU Member States (Copenhagen: DJF
Publishing 2001), Slaughter, A.-M. , Stone Sweet, A. and Weiler, J.H.H. (eds) The
European Court and the National Courts Doctrine and Jurisprudence: Legal Change
in its Social Context (Oxford: Hart Publishing 1998), and Stone Sweet, A., Governing
With Judges: Constitutional Politics in Europe (Oxford: Oxford University Press 2000).
relations was apparent early on as, in the early 1970s, it articulated in broad
terms the competence of the then Community to negotiate and conclude international agreements and in the subsequent years it set out the legal principles
which govern the co-existence between the Community (now Union) and the
Member States on the international scene.24
In recent years, a number of legal developments have rendered the role of
the Court in the area even more prominent. For instance, the Court of Justice
annulled EU legislation freezing assets of individuals pursuant to United
Nations Security Council Resolutions.25 Along with a series of subsequent
rulings, this has attracted considerable attention not only for its practical implications and the interpretation of fundamental human rights as a central tenet
of EU law, but also for its emphasis on the autonomy of the Union legal order
and the force with which the Court held that its constitutional foundations may
not be impinged upon by any other international instrument. This and other
developments become the subject-matter of a conversation between two international lawyers about the proper role of Europes judges in the international
legal order. They present two radically different interpretations of the
approach of the Court of Justice. Klabbers argues that the Court has adopted
an increasingly introverted approach, clearly focused on enhancing its own
jurisdiction and showing distinct reluctance to apply international law.
Skordas, on the other hand, puts forward a different approach, based on
systems theory. He suggests that Europes judges engage with international
law in a creative manner and argues that theirs is a relationship which is
constantly evolving, enabling both European Union and international law to
adjust. He concludes that the European Court of Justice interacts in a distinctly
positive manner with the international order in which the Union belongs.
The European Union and its Neighbours
The European Unions approach to its neighbours has been central not only to
its own development but also to its identity. Its enlargement, achieved incrementally since the early 1970s and most significantly in the early 2000s, has
been its most significant and visible act of foreign policy. As the European
Security Strategy puts it, [s]uccessive enlargements are making a reality of
the vision of a united and peaceful continent.26 Furthermore the wars in the
Balkans in the late 1980s shocked the Community: the distinctly fragmented
24
For a legal analysis of the relevant rules, see Eeckhout, External Relations of
the European Union (Oxford: Oxford University Press 2004) Chs 2-5, 7-7, and
Koutrakos, EU International Relations Law (Oxford: Hart Publishing 2006) Chs 18.
25
Case C-403/05 P Kadi v Council and Commission [2008] ECR I-6351.
26
N3 above at p1.
Introduction
approach adopted by its Member States and their failure to prevent a catastrophe of such proportion in their neighbourhood produced considerable momentum for greater cooperation in the area of foreign policy. This was illustrated
by, for example, the transition from the European Political Cooperation to the
somewhat tighter Common Foreign and Security Policy. The significance
which the Union attaches to its relations with its neighbours is also illustrated
in the European Security Strategy where building security in our neighbourhood is set out as one of the three main strategic objectives of the Union.27
It is also illustrated by the more concerted efforts which the Union makes
in order to develop its relations with its neighbours. Two chapters deal with
these efforts. Van Vooren examines the European Neighbourhood Policy
(ENP) as an area for legal experimentation. He examines the dynamic nature
of this framework and focuses on two specific aspects, namely its territorial
scope and the increasing use of soft law instruments. In relation to the former,
he discusses the ways in which the diversity of national interests within the
Union has affected its efforts to draw up a policy dealing with its neighbours
in a comprehensive way, and has given rise to different sets of relations and
legal frameworks. In relation to the latter, he starts off with the central role of
soft law in the ENP and examines the various ways in which it has gradually
given rise to new instruments and has affected the EUs policies within the
ENP and beyond. In their chapter, Keukeleire, Kalaja and ollaku focus on
Kosovo, a neighbour which has caused the Union considerable anxiety as to
how to approach it in a way which would be effective in its support and transcend the internal disagreements about its legal status amongst the Member
States. It is recalled that on 18 February 2008, the day after the unilateral
declaration of Kosovos independence, the Council accepted expressly that it
could not adopt a common position on the matter28 and instead it recalled the
Unions longstanding commitment to the stability of the Western Balkans
region and reaffirmed its commitment to fully and effectively support the
European perspective for the Western Balkans.29 Keukeleire, Kalaja and
ollaku examine the ways in which this commitment is implemented. Based
on their work on the ground, they point out the multifaceted dimensions of the
Unions approach and assess its effectiveness in the light of the prevailing
political environment.
27
N3 above, pp78 (the others are addressing the key threats to the Union and
developing effective multilateralism).
28
2851st External Relations Council Meeting, Council Conclusions on Kosovo:
[t]he Council notes that Member States will decide, in accordance with national practice and international law, on their relations with Kosovo (at 1).
29
Ibid.
10
Common Security and Defence Policy

The security and defence policy of the Union has become increasingly prominent: the Union has been carrying out a range of missions around the world
and the Lisbon Treaty focuses, and the long process which led to its drafting
and entry into force focused, on its implementation. This is illustrated not only
by devoting a specific section in the Treaty on the European Union to the
policy and beefing up the institutional and substantive framework for its
implementation, but also by renaming it from European Security and Defence
Policy to Common Security and Defence Policy.
Two chapters examine this policy from an international relations and legal
perspective respectively. Webber charts the development of the Unions security and defence policy and sets out its institutional framework and substantive
outcomes in the light of its legitimacy and commitment to effective multilateralism. His is a mixed review which identifies a gap between the policys
potential and its performance. In his chapter, this editor explores the role and
limitations of legal provisions in areas central to the Common Security and
Defence Policy. He focuses on the mutual assistance clause and the permanent
structured cooperation mechanism (both introduced by the Lisbon Treaty) and
the application of EU law to defence industries. He advises against overestimating the significance of legal rules and provisions in this area and
approaches law as a living phenomenon which should be understood as but a
part of a gradually shifting, constantly evolving, multi-faceted political space.
The European Union in International Organisations
Since the early days of European integration, the Court of Justice has articulated its understanding of the legal order established by the Treaty of Rome as
a new legal order of international law.30 Gradually, this understanding
provided the basis for the introduction of the main constitutionalising characteristics of the EU Treaties, and led to the safeguarding of the autonomy of the
EU legal system in Kadi.31 As the Union is an international organisation like
no other, its participation in international organisations has attracted the attention of both legal and political science scholars. In their chapter, Jrgensen and
Wessel, a political scientist and a legal scholar respectively, discuss the different focus which their disciplines have in their approach to this topic. The
former explains how different schools develop different theories which they
then set out to apply to specific organisations, at times empirically; the latter
30
31
Case 26/62 Van Gend en Loos [1963] ECR 1.

See n25 above.
Introduction
11
describes the emphasis on the question of competence, that is the extent to

which EU law has endowed the Union with the power to accede to an international organisation, and its various repercussions for the Unions participation and its co-existence with Member States. It is appropriate that this volume
should end with this chapter: its starting point was to get together legal, political science and international relations scholars and provide different
approaches to a number of threads which underpin the EUs foreign affairs.
Jrgensen and Wessel actually set out a research agenda aiming to combine the
questions in which both legal and political science scholars are interested and
which would, then, combine legal and political insights.
PART I
Coherence in European Union foreign policy
1. Consistency, coherence and European

Union external action: the path to
Lisbon and beyond
Simon Duke
INTRODUCTION
The idea of coherence in the EUs external relations is one referred to
frequently by both political scientists and legal scholars although, all too often,
other associated terms such as consistency, and even cooperation are also
in common usage.1 The aim of this chapter is to give an overview of coherence from a predominantly political science perspective. In the spirit of the
interdisciplinary workshop that sparked this volume, this author does not
believe that the issues surrounding coherence can be explained by a solely
legalistic approach or only a political science grounded analysis, but an admixture of these and other approaches.2 A legal approach will often lead to different, but not necessarily tangential recommendations from those who approach
the issues from a political science angle. In the case of the former, it may well
result in the advocacy of the need for some form of binding coherence requirements, while in the latter case it is more likely to result in more attention being
paid to institutions, processes and decision-making procedures to address
perceived incoherence.3 As adroitly observed by Clara Portela and Kolja
Raube, coherence emerges thus as a principle understood as a legal procedural obligation to be followed by political action.4
1
The word consistency is, however, preferred since in the English language
versions of the treaties reference is more often than not made to consistency, whereas
in many other languages, such as French or German, reference is made to coherence.
2
See: Trybus, M. and White, N.D. (eds), An Introduction to European Security
Law (Oxford: Oxford University Press 2007).
3
On the former, as an example see Gauttier, P., Horizontal Coherence and the
External Competences of the European Union, (2004) European Law Journal, 10(1),
2341; and Cremona, M., Coherence through Law, (2008) 3(1), Hamburg Review of
Social Sciences: Special Edition on Revisiting Coherence in EU Foreign Policy 1136,
as well as her chapter in this volume.
4
Portela, C. and Raube, K., (In-)Coherence in EU Foreign Policy: Exploring
15
16
This chapter will examine, primarily from a historical and institutionalist

perspective, the theme of consistency in EU external relations. The issue of
terminology is critical to any discussion of (in)consistency in this context. The
first section will, therefore, consider what the term consistency, and other
related terms, mean from a political science perspective. The second section
will consider different types of consistency, primarily within and between the
associated ideas of horizontal and vertical consistency. The third section will
then look at the origins of consistency in EU external relations, from European
Political Cooperation (EPC) to the present. The final section will consider
whether the introduction of the Lisbon Treaty, and the associated changes in
external relations, will lead to more consistency so that the EU may become
more coherent,5 effective and visible6 on the international scene.
TERMINOLOGY: CONSISTENCY v. COHERENCE

Any investigation of the legal and political science aspects of consistency will
share a common starting point in the shape of the relevant Treaties. The refrain
of consistency appears throughout the Treaties but the most significant
mention of it in the context of EU external relations is to be found in Article
21(3) of the Treaty on European Union (TEU) which says:
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.
The Lisbon Treaty, consisting of the TEU and the Treaty on the Functioning
of the European Union (TFEU), also states in Article 7 of the latter that:
The Union shall ensure consistency between its policies and activities, taking all of
its objectives into account and in accordance with the principle of conferral of
powers.
At first glance it is apparent that different kinds of consistency are being

referred to. At least three can be noted. First, consistency between the differSources and Remedies, Paper presented at the European Studies Associations Bi-annual
Convention (Los Angeles, April 2009), p. 4.
5
The word coherent is quoted with reference to A Secure Europe in a Better
World (2003), European Security Strategy, European Council, Brussels, 12 December.
6
The words effective and visible are quoted with reference to: Report on the
Implementation of the European Security Strategy Providing Security in a Changing
World (2008), S407/08, Brussels, 11 December.
Consistency, coherence and EU external action
17
ent areas of external action, such as development, trade, the Common Foreign
and Security Policy (CFSP), humanitarian assistance and various forms of
conflict prevention, peace-building, crisis management, defence related provisions and other areas, such as environmental issues, that also have apparent
external relations aspects. The second refers to consistency between external
action and other policies. This is an especially important aspect since in many
policy areas the distinction between internal and external has become increasingly difficult to uphold, most notably in the Area of Freedom, Security and
Justice (AFSJ). Finally, reference is made in the Treaty to more general consistency between policies and activities, whilst taking account of the conferral of
powers. The latter is an important aspect when it comes to the competences of
the EU in external relations. Article 40 of the TEU is significant in this regard:
The implementation of the common foreign and security policy shall not affect the
application of the procedures and the extent of the powers of the institutions laid
down by the Treaties for the exercise of the Union competences referred to in
Articles 3 to 6 of the Treaty on the Functioning of the European Union.
Similarly, the implementation of the policies listed in those Articles shall not affect
the application of the procedures and the extent of the powers of the institutions laid
down by the Treaties for the exercise of the Union competences under this Chapter.
This stipulation replaces Article 47 of the former TEU but goes beyond it by
making clear that the Unions competences in CFSP should also be respected
and places CFSP on an equal footing with other policy areas. This implies that
the default Community preference in some areas of EU external relations, such
as development cooperation, has come to an end whenever shared competences are involved. The legally binding obligation for the Union to ensure
consistency between the different areas of EU external action and between
these and other policy areas provides the overarching rationale. The Lisbon
Treaty thus strengthens the stipulations on consistency but, from a political
science perspective, we are still left with the terminological issue of what is
understood by consistency and how it relates to other associated terms, such
as coherence, coordination and cooperation.7 For this reason, a brief remark on
terminology is necessary at the outset.
Part of the imprecision surrounding the term consistency stems from a basic
linguistic issue. The term consistency in often referred to in the English
version of the Treaty whereas the term coherence appears in the French and a
number of other versions. The Oxford English Dictionary defines coherence
7
As observed by Christiansen, T., Intra-Institutional Politics and InterInstitutional Relations in the EU: Towards Coherent Governance? (2001) 8 Journal of
European Public Policy 747.
18
as the action or fact of sticking together or a harmonious connection to the

several parts of a discourse, system etc., so that the whole hangs together.
Consistency, on the other hand, is the quality, state or fact of being consistent. The former is therefore a more positive state while the latter is more
neutral (it is possible to be consistently inconsistent). The differences between
the two are subtle but important for our discussion since the terms are often
used interchangeably, but mean different things. The absence of contradictions
between the EU and CFSP and the Common Security and Defence Policy
(CSDP) is more a matter of consistency, while the need for positive links
between policy areas is more a matter of coherence. The essence of the positive nature of coherence is caught by Christophe Hillion who observed that,
aside from the absence of legal contradiction, coherence is about synergies
and added value.8 There are obviously some areas of grey between these
terms and, for this reason, the working definition of consistency as it applies
to the EUs external activities, suggested by Horst-Gnter Krenzler and
Henning C. Schneider, will be adopted: Co-ordinated, coherent behaviour
based on agreement among the Union and its member states, where comparable and compatible methods are used in pursuit of a single objective and result
in an uncontradictory (foreign) policy.9 Co-ordination would imply the presence of structures that facilitate regular meetings either within the national
foreign policy making apparatus or between them and the EU-level structures
(the idea of institutional bridges). More generally, the term cooperation is
perhaps preferable since co-ordination is merely the process by which a coherent policy outcome is attained. Coherence should lead to accessible and
policy-relevant outcomes to the co-ordination process.
The term cooperation also appears in numerous places in the Treaties as in,
for example, the case of the diplomatic and consular services of the Member
States who are required to cooperate in third countries in implementing
Council common positions and other matters (Articles 32 and 35 TEU, ex 16
and 20, as amended). Specific provisions regarding coherence apply to development policy and other aspects of EU external relations, as enumerated in
Articles 4, 208 (ex 177 EC) and 210 (ex 180 EC) of the TFEU. Although the
meanings of the terms differ slightly, and may have varying legal weight, the
overall objective is nevertheless clear that the Union should try and act as an
Hillion, C., Tous pour un, un pour tous! Coherence in the External Relations
of the European Union, in Cremona, M. (ed), Developments in EU External Relations
Law (Oxford: Oxford University Press, 2008) p. 17.
9
Krenzler, H.-G. and Schneider, H.C., The Question of Consistency, in E.
Regelsberger, P. de Schoutheete de Tervarent and W. Wessels (eds), Foreign Policy of
the European Union: From EPC to CFSP and Beyond (London, Lynne Rienners, 1997)
p. 134.
19
entity, an it, on the international scene and to persuade third parties to this
effect. This obviously has implications for how the Union reaches decisions
internally, the procedures used to reach these decisions, the instruments themselves, as well as the manner in which they are implemented in the field.
The definition also calls for comparable and compatible methods in pursuit
of a single objective which, in turn, suggests the need for a certain unity of
view regarding the fundamental aims and principles guiding the EU in its
external relations. As will be explored later, this implies that coherence should
also be sought beyond the treaties at the strategic level as well.
The legal scholar will inevitably be more interested in consistency or coherence as legal imperatives, while the political scientist is naturally more interested
in the decision-making processes and instruments and how they help to implement, or not, consistency in EU external relations. The idea of consistency, at
one extreme, points a federalist direction by suggesting that the obligation of
consistency will eventually lead to more federal structures to ensure the very
cohesiveness of EU external action. In this conception, competences in external
relations would lie with the EU with strict vertical hierarchies to the federal
level. At the other extreme, if the external relations of the EU are seen as primarily a matter of intergovernmental arrangements, whereby consistency is ensured
by internal coordination and where the EU is involved in accordance with the
subsidiarity principle, it is the Member States who hold the EU institutions
accountable for (in)consistency. In so far as the EU enjoys competences in the
external relations area, they are delegated to the European level by the Member
States. The third model posits something in between the two above, whereby
some functions are assumed by a quasi-federal level while others remain at the
national level, thereby implying concurrent structures and procedures.
The third model is obviously nearer to the current realities of EU external
relations. The first two would have very different implications for the consistency of EU external relations; in both cases simpler and more clear-cut than
the third model since the underlying issue of competences is clearer. In the
case of the mixed model the issue of consistency is obviously complicated by
the presence of mixed competences and more complicated patterns of decision-making and procedures, leading to complex forms of vertical and horizontal consistency.
BENCHMARKS FOR CONSISTENCY

When resolved, the terminological issues surrounding the understanding of
consistency, as applied to EU external relations, lead to a second set of questions. The nature of the EUs consistency leads to the question of to whom,
between whom and with what, does consistency apply?
20
To begin with there are the structural aspects of consistency introduced by

the Treaty itself. For a start, reference is made to the objectives of the Union
where, by implication, the actions of the Union and the Member States should
be consistent. Consistency should therefore apply as part of a mainstreaming
function across institutions and policy areas. The objectives of the EU, laid out
in Article 3(5) of the TEU (ex 2, as amended), are though sufficiently general
to elude any direct measure of many actions against declared objectives. The
Article states:
In its relations with the wider world, the Union shall uphold and promote its values
and interests and contribute to the protection of its citizens. It shall contribute to
peace, security, the sustainable development of the Earth, solidarity and mutual
respect among peoples, free and fair trade, eradication of poverty and the protection
of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles
of the United Nations Charter.
The first benchmark is therefore one of a very general nature that rests upon
shared assumptions of values and interests and a number of sub-goals. The
concept of the EU as promoting a rules-based international system is also reinforced in the Lisbon Treaty with specific reference to the observance and
development of international law. The values and interests referred to are to be
promoted by an institutional framework which shall ensure the consistency,
effectiveness and continuity of its policies and actions (Article 13(1) TEU).
The Council and the Commission, assisted by the High Representative of the
Union for Foreign Affairs and Security Policy, are charged with specific
responsibility in this regard (Article 21(3) TEU).
The picture is significantly complicated by the fact that contrary to some
popular impressions, the Lisbon Treaty does not abolish the second pillar, or
CFSP. The Lisbon Treaty does abolish the term Community, thus eradicating
the awkward distinction between Community and Union, and establishes legal
personality for the EU (Article 47 TEU). The old third pillar, Police and
Judicial Cooperation in Criminal Matters, is absorbed into the EU. The legal
implications of this are discussed extensively in the companion chapter by
Marise Cremona.
Superficially, all of this looks rather positive from a coherence perspective
but any cursory glance at the TEU soon makes it apparent that the second
pillar is alive and well. For instance, Article 24(1) TEU (ex 11, as amended)
makes it very clear that the CFSP is subject to specific rules and procedures.
The stipulations concerning CFSP appear in the TEU, while those concerning
the former communautaire aspects of external relations are to be found in the
TFEU. Thus, even at the symbolic level, the structure of the Treaty reflects the
continuing division between the two. The reason for this should be apparent.
21
The nature of CFSP, dwelling upon sensitive matters of foreign policy and
increasingly security-related issues, is still close to the hearts of the Member
States and to issues of sovereignty. Above all, Article 40 (ex 47, as amended)
TEU preserves the distinction between the CFSP aspects of the EUs external
action and those covered by Articles 36 of the TFEU (covering the aims and
objectives of the Union and its competences).
Second, the simple fact that the external relations of the EU are complex
and shared between the Member States and the EU, suggests that there is no
one measure of consistency. Instead, consistency applies across the EUs
pillars in external relations often referred to as horizontal consistency, as
well as between the Member States and the EU institutions normally referred
to as vertical consistency.
Horizontal consistency is perhaps the most popular approach in the academic literature since this goes to the heart of the EUs capacity to influence
other states and of its capacity to act as a single entity.10 This aspect has a
strong institutional perspective with the emphasis on the how questions:
how to make the institutions coherent; how to pull the strands of policy
together into a whole; and finally, how to resist attempts from within the EU
or externally to promote division. This has to be considered against the reality,
as noted by Pertti Torstila, Finlands Secretary of State, in a speech that,
Different rules, instruments and decision-making cultures are a reality
between the Common Foreign and Security Policy and the rest of the external
action.11 In this context, therefore, consistency is a matter of how to arrange
the (former) communautaire and the national competences in external relations, thus preserving the current character of EU external relations. This
presumes a rather clear understanding of competences which, as a number of
legal scholars have suggested, is not always the case.
The associated term, vertical consistency, refers to consistency between the
Member States and the EU institutions, as well as within the Member States
themselves. This form of consistency applies in particular to the second pillar
(CFSP) where Article 32 (ex 16) TEU states that:
Member States shall consult one another within the European Council and the
Council on any matter of foreign and security policy of general interest in order to
10
Aggestam, L., Anesi, F., Edwards, G., Hill, C. and David, R.,Institutional
Competences in the EU External Action: Actors and Boundaries in CFSP and ESDP,
(2008) Swedish Institute for European Policy Studies, SIEPS Publications (67), p. 12,
available at www.sieps.se (accessed 22 January 2010).
11
Speech of Finlands Secretary of State Torstila, P. (2008), Finlands view on
developing European External Action Service, available at http://formin.finland.fi/
Public/Print.aspx?contentid=115643&nodeid=15620&culture=en-US&contentlan=2,
25 February (accessed 20 January 2010).
22

determine a common approach. Before undertaking any action on the international
scene or entering into any commitment which could affect the Unions interests,
each Member State shall consult the others within the European Council or the
Council. Member States shall ensure, through the convergence of their actions, that
the Union is able to assert its interests and values on the international scene.
Member States shall show mutual solidarity.
The above article poses a number of dilemmas since, by implication, it

restricts the requirement for consistency only to those matters of foreign and
security policy of general interest, as determined by the Member States. The
restriction of the consistency requirement only to those matters of general
interest may not be apparent to external partners who may judge the actions of
the EU based upon the actions of the Member States on matters of uncommon interest. The obvious example was the failure to reach consensus on
whether UN Security Council Resolution 1441 provided sufficient grounds
upon which to intervene with military force in Iraq. The fact that no effort was
made to use the CFSP fora to reflect differences damaged not only the second
pillar but the EU more generally. It could therefore be argued that consistency
goes beyond those matters of general interest to include the more general
expectation that the Member States will uphold the common values and principles of the EU even in their bilateral diplomacy.
The reference to convergence of their actions is also pertinent to both
types of consistency. The exact nature of these actions is not laid out in detail
but, broadly speaking, the instruments involved decisions adopting actions to
be undertaken by the EU or positions to be taken by the Union (Article 25, ex
12 as amended, TEU). Political dialogue with third parties should also be
framed by the general objectives of the Union, as should positions adopted in
international organisations or at international conferences. The latter in particular is problematic since the TEU makes reference in Article 34(2) (ex 19 as
amended) to Member States which are permanent members of the Security
Council (France and the United Kingdom) who will, in the execution of their
functions, ensure the defence of the positions and the interests of the Union,
without prejudice to their responsibilities under the provisions of the United
Nations Charter. Here there is an obvious tension between the requirements
of general consistency and those of national interest represented by the
Member State as a sovereign member of the international organisation. A similar type of asymmetrical tension is evident in the military dimensions of crisis
management, most notably the provisions for permanent structured cooperation in Article 42(6) (ex 17 as amended) TEU, since this is an area where a
relatively small group of Member States provide the bulk of the resources
(human and capital).
Aggestam et al have provided a helpful overview of the types of consistency challenges found in the horizontal and vertical variants, again with the
23
emphasis upon the actors and the degree to which they are coherent and
consistent.12 They identify the principal challenges as those arising:
i)
between the pillars of the Union, as constructed by the Treaty on

European Union, notably the first and second pillars;
ii) between the various EU institutions, especially with the putative
European External Action Service (EEAS) in mind;
iii) between the competing policy circuits (such as development and security
or development and migration);
iv) between the centre and periphery (such as delegations or offices in the
field and the Brussels-based headquarters);
v) between the EU and the Member States.
A sub-category could be added to this list since tension is often to be found not
only between but also within the institutions and actors. The tensions between
DG RELEX (External Relations) and DG Development over the use of funds
and the perennial horse and cart issue of whether security is possible without
development and vice versa, were precisely the issues that helped prompt the
need for change in the form of the Lisbon Treaty.
Finally, we cannot consider the external relations of the EU in isolation
from the internal aspects of the Unions work. Indeed, the dividing line
between what is internal and external is often far from obvious since any
number of policy-related discussions on border security, counter-terrorism,
migration issues, the European Neighbourhood Policy and even the eurozone,
have profound implications for both. As the Working Group on External
Action of the Convention on the Future of Europe cautioned, close attention
should be paid to the external aspects of the EUs internal policies to ensure
consistency of internal and external action.13
CONSISTENCY IN CONTEXT
Before embarking upon our examination of the theme of consistency, it is
important to note that this is by no means a recent preoccupation. If we look
back to the days of European Political Cooperation (EPC) and the London
12
Aggestam, L., Anesi, F., Edwards, G., Hill, C. and David, R. (2008),
Institutional Competences in the EU External Action: Actors and Boundaries in CFSP
and ESDP, SIEPS Publications, Swedish Institute for European Policy Studies (67),
pp. 1213, available at www.sieps.se (accessed 22 January 2010).
13
Final Report Working Group VII on External Action (2002), The European
Convention, The Secretariat, CONV 459/02, WG VII 17, Brussels, 16 December, p. 14.
24
Report of 1981,14 for example, we see growing concerns about the consistency
of the Community in external relations and those of the Member States in relation to the Community in the outside world. Since EPC was a parallel process
to the Community, the means for ensuring consistency were predominantly
political in nature as, arguably, they remain today. EPC was notable in this
domain for providing the basic structures for consultation and coordination at
the European level, such as the EPC secretariat who assisted the rotating
Presidency (thus, in effect, serving as the collective memory of EPC) and the
Political Committee which, in turn, brought senior level officials from the
national foreign ministries together. The growth of closer consultation
between the foreign ministries of the Member States at the European level
gave rise to what Simon Nuttall famously described as the coordination
reflex.15 Although the strength of this reflex has been sorely challenged over
the years, it serves as a prescient reminder that consistency has to do with not
only relations between the institutions but also between the Member States
and the institutions.
Five years later the Single European Act enshrined these concerns by
specifically charging the Commission and the Council with responsibility for
consistency and provided that the external policies of the European
Community and the policies agreed in the European Political Co-operation
must be consistent.16 Under the prevailing arrangements, the Commission
was present at EPC meetings and, with the Presidency, shared joint responsibility for ensuring consistency between EPC decisions and those of the
European Community. This was the underpinning logic that led to the
Commissions full association with the Common Foreign and Security
Policy (CFSP), EPCs successor, in the Maastricht Treaty. Some of the institutional facets that we associate with CFSP were inherited from EPC, again
with consistency in mind. For instance, the idea of the troika was inherited by
CFSP and then expanded but with the same basic aim in mind, to avoid the
potential for discontinuity between the rotations of the Presidency.
The Maastricht Treaty saw the introduction of a single institutional framework linking all the policies of the Union. In the external relations areas, this
included all of the Community competences, as well as the intergovernmental
areas covered by the second (CFSP) and third (Police and Judicial
Cooperation in Criminal Matters) pillars. From the consistency standpoint this
was of tremendous importance since it established, at least on paper, the insti14
Report on European Political Cooperation (1981), Bulletin of the European
Communities (Supplement 3), 1417, London, 13 October.
15
Nuttall, S.J., European Political Co-Operation (Oxford: Clarendon Press,
1992) p. 56.
16
Single European Act (1987), Article 30(5), OJ L 169 of 29 June.
25
tutional linkages necessary to ensure consistency. The TEU was far-sighted in

some domains, where it foresaw the potential for clashes between the pillars
in areas such as the imposition of economic sanctions, flight bans and the
suspension of development cooperation, where a combination of Community
and CFSP instruments was foreseen. In spite of this commendable vision, the
requirement for consistency is nevertheless left subject to the respective
powers of the Council and Commission. Although fully associated with
CFSP, the Commission also enjoys the right to initiate proposals and a dual
responsibility for consistency, but this is qualified by the duty of the Council
to ensure unity, consistency and effectiveness of action by the Union in
Article 13 (now as amended Article 26) of the TEU.
It could be argued that the single institutional framework inadvertently
promoted inconsistency, or at least tension, by attributing responsibility for
consistency to both the Council and Commission. The restriction of the
European Court of Justices (ECJ) purview to Community competences would
complicate the quest for cross-pillar consistency. The ECJ was, however,
granted powers to decide specifically on issues relating to disputes involving
inter-pillar competences, hence the importance of the legal dimension in clarifying and illuminating the delineations between Community and intergovernmental consequences.
Although the theme of consistency has a considerable lineage, it has
become more of an issue since the end of the Cold War. Much of this is due to
the relatively compartmentalised growth of the Communitys external relations, predominantly in the fields of trade, development and assistance, during
the Cold War. The main foreign and security policy themes of the era were
decided largely in the context of the nuclear stand-off between the United
States and the Soviet Union and their respective alliance partners. The end of
the Cold War and the introduction of the TEU removed the predominant
Community role in external relations with the introduction of CFSP as the
successor to EPC. Unlike EPC, however, CFSP was more than a parallel
process and was an integral part of the efforts of the EU to project itself as an
actor on the international scene. In practical terms, the issue of consistency
surfaced in a stark manner in the form of how the EU would address the
economic, political, social and security implications of the collapse of Titos
federal Yugoslavia.
The Amsterdam Treaty saw the introduction of the High Representative for
CFSP. This was originally intended to enhance coordination by providing
assistance to the Presidency in its external representation role. The Presidency,
in turn, coordinates its representation role with the Commission. In spite of
undoubtedly noble motives, the High Representatives position inadvertently
introduced another level of complexity into the external representation of the
EU as the real role of the incumbent, Javier Solana, became evident. Contrary
26
to the High Representative assisting the Presidency, the impression was often
that it was the six-month rotating Presidency who assisted the multi-yearappointed High Representative. The challenge to consistency then became a
matter of balancing Javier Solanas political face with the actual clout of
Commission resources, both human and financial, and the whims of the rotating Council Presidency.
Efforts to improve the consistency of EU external relations included the
introduction of new instruments, such as common strategies, which were
designed to instil a common approach to a country or region across the three
pillars.17 Arguably, common strategies (now largely moribund due to new
successor instruments) were primarily about internal inter-pillar coordination
rather than the external partners themselves. The Nice Treaty saw the addition
of the European Security and Defence Policy (ESDP), which produced further
challenges to consistency since, on the one hand, it highlighted the need for
flexible arrangements, such as enhanced co-operation, as well as the need for
coherence in EU crisis management generally. The central focus of ESDP was
initially on the military dimensions of crisis management, largely due to
successive shocks in the Western Balkans, but this was soon complicated by
the growing attention being paid to civilian aspects of crisis management
where the question of inter-pillar competences became more acute.
The evolution of the Community, and then the EU, in external relations also
posed questions that went beyond the letter of the Treaties. While, from a legal
perspective, consistency is required, it was less clear who, or what, was to be
consistent. Is it principally the purpose of the Community to be consistent with
CFSP, or vice versa? The responses to these questions are often inconclusive
and ongoing, with the Council attempting to justify its primacy by invoking
Article 26 (ex 13 as amended) TEU, while the Community has historically
exploited Article 308 TEC (now 352 TFEU), and as battles have been fought
over the interpretation of Article 47 (now as amended Article 40) TEU.18
17
Three Common Strategies were adopted, to Russia, the Ukraine and the
Mediterranean respectively.
18
Article 308 TEC read: If action by the Community should prove necessary to
attain, in the course of the operation of the common market, one of the objectives of
the Community, and this Treaty has not provided the necessary powers, the Council
shall, acting unanimously on a proposal from the Commission and after consulting the
European Parliament, take the appropriate measures. Ex-Article 47 TEU read:
Subject to the provisions amending the Treaty establishing the European Economic
Community with a view to establishing the European Community, the Treaty establishing the European Coal and Steel Community and the Treaty establishing the
European Atomic Energy Community, and to these final provisions, nothing in this
Treaty shall affect the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying or supplementing them (emphasis added).
27
The Commission and the European Parliament maintained that Article 47

(now as amended Article 40) of the Treaty on European Union represents a
fixed boundary between the competences of the Community and those of the
Union. Perhaps inevitably these boundaries were tested in a landmark case,
often referred to as the ECOWAS case, which had at its core the question of the
respective competences of the Community and the Union in external relations.19 The details of the case are beyond the remit of this contribution; nevertheless, the case illustrates the significant role that the courts can play in
delineating the competences of the pillars at the Treaty level.20 It should,
however, be observed that the ECOWAS case is only one of a number of areas
where competences are far from clear (these include aspects of civilian crisis
management, peacebuilding, human rights, the Solidarity Clause adopted in
the aftermath of the March 2004 Madrid bombings, conflict prevention and
defence industrial aspects).
The gist of former Article 47 has been incorporated into the Lisbon Treaty
(Article 40 TEU and Articles 36 TFEU) since, in spite of some populist
claims, the distinctions between the second pillar and the other parts of the EU
(including the scope of the Court of Justice of the EUs jurisdiction) remain.
The overall effect of the legal efforts to delineate competences may have
served to reinforce the distinctions between pillars, which may make for legal
consistency but can have the opposite effect on building synergies between the
pillars and actors. For the political scientist, therefore, the effect of the legal
rulings on inter-pillar competences has been to reinforce the respective gatekeeping functions of the Council (for CFSP) and the Commission (for the
communautaire aspects).
Responses to Inconsistency: The Road to Lisbon
Prior to the adoption of the Lisbon Treaty efforts to ensure consistency in the
EUs external relations had met with, at best, mixed success. The overall
balance sheet was found to be wanting as consensus emerged that more needed
to be done to ensure better consistency and coherence. For instance, the
Working Group on External Action of the Convention on the Future of Europe
concluded that:
19
Case C-91/05, Commission of the European Communities v Council of the
European Union [2008] ECR I-3651.
20
For an overview see Wessel, R.,The Dynamics of the European Legal Order:
An Increasingly Coherent Framework of Action and Interpretation, (2009) 5 European
Constitutional Law Review 117.
28

In order to ensure better coherence between foreign policy decisions on the one
hand, and deployment of instruments in the field of external relations on the other
hand, the Group was of the opinion that the current roles of the HR for CFSP and
the Commissioner responsible for external relations should be reconsidered 21
Six months later the European Security Strategy was unveiled by the High
Representative for CFSP to the European Council at Thessaloniki in June
2003. The same theme emerged in this document:
The European Union has made progress in developing a coherent foreign policy and
effective crisis management in the last few years. We have instruments in place that
can be used effectively, as we have demonstrated in the Balkans (and now more
widely). But if we are to make a contribution that matches our potential, we need to
be more active, more coherent and more capable.22
Three years later the consistency theme was again tabled, with remarkable
frankness, by the Commission in a Communication to the European Council
in June 2006:
Unsatisfactory co-ordination between different actors and policies means that the
EU loses potential leverage internationally, both politically and economically.
Despite progress with improving co-ordination, there is considerable scope to bring
together different instruments and assets, whether within the Commission, between
the Council and Commission, or between the EU institutions and the Member
States. Furthermore, the impact of EUs policy is weakened by a lack of focus and
continuity in its external representation. Within the framework of the existing
treaties the Community and intergovernmental methods need to be combined on the
basis of what best achieves the desired outcome, rather than institutional theory or
dogma.23
Finally, the follow-up to the European Security Strategy, quoted above, noted
that:
To ensure our security and meet the expectations of our citizens, we must be ready
to shape events. That means becoming more strategic in our thinking, and more
effective and visible around the world. We are most successful when we operate in
a timely and coherent manner, backed by the right capabilities and sustained public
21
Enhancing Coherence and Efficiency Between Institutions and Actors
(2002), Final Report, Working Group VII, Section 5, CONV 459/02, 16 December
(emphasis added).
22
A Secure Europe in a Better World: European Security Strategy, European
Council, Brussels, 12 December 2003, p. 12 (emphasis added).
23
European Commission (2006), Europe in the World Some practical
Proposals for Greater Coherence, Effectiveness and Visibility, Communication to the
European Council, Brussels, 8 June, COM (2006) 278 Final, p. 6.
29
support For our full potential to be realised we need to be still more capable,
more coherent and more active.24
These documents, and others, clearly made the perceived need for
enhanced coherence obvious. Issues of consistency and coherence are often
approached from a procedural and decision-making perspective, as is the case
below, but it should be borne in mind that the institutional dimensions are part
and parcel of a broader debate about the strategic objectives of the Union in
external relations. A Union without a clear idea of what it is trying to do and
where it is going will remain incoherent, even with all of the institutional
reforms suggested by the Lisbon Treaty. It was against this political backdrop
that the Constitutional Treaty and, later, the Lisbon Treaty were drafted.
It should also be noted that the need for greater consistency was driven by
a number of exogenous factors. These included the end of the Cold War, the
slow emergence of a complex and still unstable multipolar international
system in which Europe and the US appeared to play a lesser role compared
to the rapid rise of China, Brazil and India. The election of Barack Obama in
2008 also promised great scope for revived EUUS relations following the
unilateralism of the George W. Bush years (notably prior to 2007). The challenges outlined by Javier Solana in the 2003 European Security Strategy,
quoted above, have since multiplied with mention of energy security, cyber
security, climate change and the ravages of the global financial crisis.25 All of
these challenges have one facet in common they require a collective
approach to their solution, both at the European level but also at the international level, since any solution lies beyond the resources and capacities of any
one state. The collective effect of these changes was, on the one hand to stress
the need for coherent EU action in response to these and other challenges and,
on the other hand, to promote the role of the EU on the global stage.
Finally, it should also be borne in mind that demands for a more effective
and coherent EU on the international scene also enjoyed strong public support.
In successive Eurobarometer polls26 EU citizens have shown strong support
for more, not less, Europe in foreign and security policy. In spite of this the EU
institutions and the Member States have found it difficult to turn this support
into consensus and, on occasion, to look beyond the Brussels fishbowl. The
24
Report on the Implementation of the European Security Strategy Providing
Security in a Changing World (2008), S407/08, Brussels, 11 December, p. 2.
25
Ibid.
26
Eurobarometer: Standard Eurobarometer 63 (2005), July, 3035;
Eurobarometer: Standard Eurobarometer 66 (2006), December, 176179,
Eurobarometer: Standard Eurobarometer 69 (2008), June, pp. 15 and 41, available at
http://ec.europa.eu/public_opinion/index_en.htm (accessed 22 January 2010).
30
Irish referenda illustrated the difficulties that the EU institutions have in

appealing to its citizens and avoiding the impression that European integration
is purely an elite-driven process. Part of the problem was, undoubtedly, the
difficulties encountered in trying to sell a lengthy and utterly unreadable and
generally incomprehensible Treaty whose main purpose was far from evident.
One of the longer-term challenges for consistency will be to maintain public
support for Europe in the world and that means thinking seriously about how
the EU should approach public diplomacy, both to its citizens and to the
outside world. The December 2008 Report on the Implementation of the
European Security Strategy claimed that the EUs success can be attributed to
a distinctive European approach to foreign and security policy.27 It may well
help to enhance consistency and coherence if the nature of this distinctiveness
were more widely understood.
THE LISBON TREATY AND CONSISTENCY IN

EXTERNAL ACTION
The Policy and Strategic Levels
The apocryphal telephone number(s)
The Lisbon Treaty emerged slowly and rather painfully into the world but the
idea of promoting the EUs role on the international scene was nevertheless
intact. A key component of this was the enhancement of consistency in the
EUs external relations. This was to be accomplished in a number of ways,
including the relative demotion of the role of the rotating Presidency of the
Council, the introduction of a High Representative of the Union for Foreign
Affairs and Security Policy, who is also a Vice-President of the Commission
(henceforth HR/VP), and the establishment of a semi-permanent President of
the European Council. As with any treaty the concentration was very much
upon the big picture, especially the more senior positions. This means that
there remain many questions about how coherence will work at lower levels
and configurations, especially when it comes to the role and function of the
European External Action Service (EEAS).
Even at the highest levels in EU external relations there are a number of
pertinent questions that remain, most notably regarding representation of the
EU on the international scene. The appointment of the former Belgian Prime
Minster, Herman van Rompuy, as the President of the European Council intro-
27
Report on the Implementation of the European Security Strategy Providing
Security in a Changing World (2008), S407/08, Brussels, 11 December, p. 2.
31
duced a consensus builder into a rather ill-defined role which, rather like the
new High Representatives role discussed below, will depend very much upon
the incumbents to shape the roles in what one hopes will prove to be a complementary and coherent manner.28 Aside from his formal duties involving preparation and continuity of the work of the European Council, he is also charged
with responsibility for facilitating cohesion and consensus within the
European Council.29 The most serious potential challenge to overall coherence at the highest representational levels is to be found in the formulation in
Article 15(6) TEU whereby:
The President of the European Council shall, at his level and in that capacity, ensure
the external representation of the Union on issues concerning its common foreign
and security policy, without prejudice to the powers of the High Representative of
the Union for Foreign Affairs and Security Policy.
By way of juxtaposition to the role of the President of the European Council,

the High Representative shall conduct the Unions common foreign and security policy and contribute by his proposals to the development of that policy,
which he shall carry out as mandated by the Council. The same shall apply to
the common security and defence policy.30 The HR/VP shall also represent
the Union for matters relating to the common foreign and security policy and
shall conduct political dialogue with third parties on the Unions behalf and
shall express the Unions position in international organisations and at international conferences.31
The key question for the division of responsibilities lies in the understanding of level and capacity which suggests that the President of the European
Council will operate at the level of heads of state and government while the
High Representative will focus on the ministerial level. Article 15(2) TEU also
states that the High Representative shall take part in the work of the
European Council with no further specifications. The reference to the HR/VP
contributing to the development of CFSP suggests that she is to give input to
the European Council, which is then subject to internal deliberation.
Nevertheless, the fact that the HR/VP may also propose and implement CFSP,
subject to certain conditions, tends to suggest that Catherine Ashton, the first
holder of the post, will take the lead on CFSP matters.
28
Barber, T., Van Rompuy Focuses on European Future, Financial Times, 1
January 2010.
29
Article 15(6) TEU.
30
Article 18(2) TEU.
31
Article 27(2) TEU.
32
There are grounds for optimism that the first two incumbents of the respective offices will be able to work out a sensible modus operandi. Neither of the
incumbents is burdened with an overly large ego and, if anything, the
European Parliaments confirmation hearings for the incoming Commission
led to different concerns that Catherine Ashton reportedly lacks vision,
knowledge and judgement.32 Since the hearings, in her case, were of a soft
nature (the European Parliament cannot overturn the HR/VP appointment,
unlike those of other members of the Commission designate) it is also possible to interpret her responses as mere prudence. Herman van Rompuy has also
been similarly cautious in shaping his new office, although he soon exercised
his right to call for an extraordinary European Council summit on the
economic situation. He has also made two major speeches of a more strategic
nature, suggesting that in speeches such as these as well as his reporting to the
European Parliament after European Councils (these have already been
dubbed state of the Union addresses), he will use his considerable agendasetting powers at the strategic level.33 There is less evidence, to date, that
Catherine Ashton will follow suit.
The President of the European Council will also have to consider relations
with the rotating Presidency. Under the European Councils rules of procedure
the President of the European Council drafts the annotated draft agenda in
close cooperation with the member of the European Council representing the
Member State holding the six-monthly Presidency of the Council.34 The
President of the European Council must also present a report to the European
Parliament after each of the meetings of the European Council; this too could
become a potent tool in the shaping of the EUs external agenda. The rules of
procedure stress the need for cooperation between the President of the
European Council, the rotating Presidency and the President of the
Commission but they leave open many questions, such as the exact nature of
the President of the European Councils relations with the HR/VP and with the
President of the Commission the former involving the issue of representation of CFSP and the latter that of representation on non-CFSP matters at the
international level.
32
Barber, T., Ashton Under Fire at EU Confirmation Hearing, Financial
Times, 11 January 2010.
33
Herman van Rompuy, The Challenges for Europe in a Changing World,
Address by the President of the European Council to the Collge dEurope, Bruges,
PCE 34/10, 25 February 2010; and Transatlantic Responses to Global Insecurity,
dinner remarks to the Brussels Forum of the German Marshall Fund, PCE 57/10, 26
March 2010.
34
European Council Decision of 1 December 2009 adopting its Rules of
Procedure, 2009/882/EU, OJ L 315/51, Article 3(1).
33
One of the factors that will influence how their respective roles play out in
practice will be the type and amount of support afforded to their roles.
Sensibly, the Council decision on the organisation and functioning of the
EEAS makes it clear that the Service shall assist not only the HR/VP but also
the Presidents of the European Council and European Commission in the exercise of their respective functions in the area of external relations.35 The presence of a common support structure could prove to be a potent source of
consistency among the top external relations posts. Nevertheless, the minimal
representation at the highest level will still revolve around the two presidents
Van Rompuy and Barroso. For instance, both represent the EU at G20 and
G8 summits, the former representing the Union for foreign policy and security
matters while the latter represents the other areas of the EUs external relations. This means that on matters that combine CFSP and Commission interests, such as energy, the question of who takes the lead will be subject to
case-by-case agreement. The dual President arrangement has met with criticism from a number of quarters but, on the positive side, it is a marked
improvement from the pre-Lisbon system that included the rotating Council
Presidency as a third President.
The appointment of Catherine Ashton as the new HR/VP appeared superficially to provide the vital bridge between the old communautaire and the
CFSP aspects of external relations that had been bedevilled by increasing
clashes in the areas of grey between the pillars (most notably the ECOWAS
case referred to above). As was intended by the treaty, the HR/VP and the
Council are at the hub of efforts to ensure unity, consistency and effectiveness
of action by the Union since both are specifically charged to that end.36 The
HR/VPs functions on the CFSP side are much as they were under the previous High Representative, Javier Solana, but with significant new roles added
on the Commission side. The so-called double-hatted role is without precedent in the EU and it is therefore difficult to assess with any accuracy how it
might contribute to greater coherence.37 In her CFSP capacity the High
Representative shall conduct the Unions common foreign and security
35
Council decision establishing the organisation and functioning of the
European External Action Service, 2010/427/EU, Brussels, 26 July 2010, Article 2(2).
36
Ibid. Article 25(2).
37
A number of commentators have pointed out that the HR/VP is, at least,
triple-hatted (combining Javier Solanas former role with that of the former
Commissioner for External Relations and aspects of the rotating Presidencys CFSP
role). See Duff, A., All Eyes on Triple-hatted Ashton (London: European Council
on Foreign Relations, 2009) 16 December, available at http://ecfr.eu/ (accessed 21
January 2010) and Avery, G., Europes Future Foreign Service, (2008) 43 The
International Spectator 29.
34
policy.38 She is also invited to contribute by her proposals to the development

of that policy, which she shall carry out as mandated by the Council. The
same applies to ESDP, renamed the Common Security and Defence Policy
(CSDP). She also presides over the Foreign Affairs Council, to which we shall
return in a moment. The HR/VP will also assume a coordination role with
regard to international organisations and international conferences. Under the
treaty Member States shall coordinate their action in international organisations and at international conferences and shall uphold the Unions positions
in such forums.39 It is up to the HR/VP to organise this coordination. Quite
how this coordination will work remains to be seen but it suggests an active
role for the EEAS and the EU delegations. In the specific context of the UN
Security Council, the HR/VP will also assume an additional role. In those
instances where the Union has defined a position on a subject which is on the
United Nations Security Council Agenda, those Member States which sit on
the Security Council shall request that the High Representative be invited to
present the Unions position.40
On the VP side of her mandate there are a number of interesting questions
that arise with implications for the consistency of EU external action. The first,
as stated in Article 17(1) TEU, is that, With the exception of the common
foreign and security policy and other cases provided for in the Treaties, [the
Commission] shall ensure the Unions external representation.41 This implies
that for all CFSP matters the EU will be represented by the High
Representative, while at the level of the Heads of State or Government the
President of the European Council will represent CFSP issues and the
President of the Commission represents all non-CFSP matters. The President
of the Commission is also a member of the European Council, whereas the
HR/VP only takes part in its work. The former is also charged with responsibility for making sure that the Commission acts consistently, efficiently and
as a collegiate body.42 The latter ensures the consistency of the Unions
external action and shall be responsible within the Commission for responsibilities incumbent on it in external relations and for coordinating other aspects
of the Unions external action.43 This rather curious formulation introduces
the notion of direct responsibility for certain external relations dossiers and a
coordinating function for (unnamed) other aspects. Under the previous
arrangements the President of the Commission presided over the Group of
38
39
40
41
42
43
Article 18(24) TEU.

Article 34(1) (ex 19, as amended) TEU.
Other cases include EMU.
Article 17(6 b) TEU.
Ibid.
35
Commissioners for External Relations (including External Relations,

Development and Humanitarian Assistance, Trade and Economic and
Monetary Affairs) while the Commissioner for External Relations was the
vice-chair. Under the Lisbon Treaty the suggestion seems to be that the group
would now fall under the HR/VP, but be restricted primarily to the three
Commissioners for Development, International Cooperation and
Humanitarian Aid and Crisis Response, and Enlargement and the European
Neighbourhood Policy, which raises the question of under what circumstances
a Commissioner might appeal to the President in the event of a difference with
the HR/VP.
The appointment of the HR/VP is also subject to different procedures from
other members of the college (the President of the Commission does not
appoint the VP and the HR is appointed by the European Council, by qualified majority, with the agreement of the President of the Commission). The
appointment of a former Commissioner (of Trade) as the first HR/VP helps
address the issue of the incumbents acceptability within the Commission, but
it may raise concerns on the Council side (especially since Ashtons interim
office initially remained in a Commission building).
The announcement of Presidents Barrosos new Commission includes a
few hints regarding what may fall under responsibilities and what may be
subject to coordination. Ashton is formally the first Vice-President, meaning
that she would normally replace the President in his absence but, with due
consideration of her duties and roles, this task would now fall to Viviane
Reding, Vice-President and Commissioner for Justice, Fundamental Rights
and Citizenship.44 Although it is only a passing detail, it does raise the broader
question of the overall manageability of the HR/VPs portfolio. One of the
closest relationships will have to be that between the HR/VP and Andris
Piegbalgs, Commissioner for Development and the European Aid Cooperation
Office (AIDCO), who also serves as the Commission representative on the
FAC. The establishment of a good working relationship in this area is of
particular importance given the sensitivities evoked across the Rue de la Loi
by grey area issues falling between security and development (like the earlier
ECOWAS case).45 Relations with Stefan Fle, Commissioner for Enlargement
and the neighbourhood aspects of External Relations (RELEX) and AIDCO
44
For a complete overview of the Commission designate 20092014 see:
http://ec.europa.eu/commission_designate_2009-2014/index_en.htm (accessed 2
February 2010).
45
For a brief assessment of the development related aspects, see: Van Reisen,
M., Coherence and Consistency in the EUs External Policies: Negotiation Towards an
External Action Service, (2007) 7 EEPA Briefing Paper, Europe External Policy
Advisers, December, available at http://www.eepa.be (accessed 25 January 2010).
36
will also be important. The wisdom of the symbolism of putting the European
Neighbourhood Policy elements under DG Enlargement will be seen in due
course, especially from the perspective of those neighbours (Armenia, Georgia,
Moldova and the Ukraine) which have unambiguously demanded EU membership prospects. Not all Member States, like Finland, see enlargement as part of
the EUs external action and thus see a strong case for keeping it (and ENP)
within the Commissions remit. A new position, that of Kristalina Georgieva,46
covering International Cooperation, Humanitarian Aid and Crisis Response
(including Humanitarian Aid and Civil Protection: ECHO) will also demand
close cooperation especially since this also falls into areas that have been traditionally sensitive in intra-EU institution relations. The creation of her new portfolio will presumably involve the transferral of the civil protection units,
including the ARGUS network, the Commissions Secure General Rapid Alert
System, with general responsibility assigned to the Programming and Resources
Unit of the Commissions Secretariat-General, to the new directorate-general.
The Monitoring and Information Centre (MIC), currently managed by DG
Environment, as well as other parts of the EUs Mechanism for Civil Protection
might also be usefully transferred. This would make sense from a coherence
perspective since it would further centralise the dispersed crisis response mechanism under the overall authority of the HR/VP. The final portfolio, that of Karel
de Gucht, the Commissioner for Trade, is of obvious significance but also poses
its own particular coordination issues given DG Trades distance from the EEAS
and their reliance upon exclusive competence arguments.
The rotating Presidency of the Council remains another key position that
must be subject to coherence and good coordination. One of the most striking
potential problems is how the rotating Presidency will act vis--vis the
President of the European Council. The Lisbon Treaty gives the President of
the European Council fairly extensive powers regarding agenda setting, since
it is the European Council that shall identify the Unions strategic interests,
determine the objectives of and define general guidelines for the common
foreign and security policy, including for matters with defence implications.47
The President of the European Council may also convene an extraordinary
meeting of the European Council in order to define the strategic lines of the
Unions policy in the face of such developments a power that Van Rompuy
soon made use of by calling for a special summit on 11 February 2010 to
address the financial crisis.
46
The former Bulgarian candidate Rumiana Jeleva was forced to withdraw due
to uncertainties raised by MEPs about her ability to grasp the Humanitarian Aid portfolio and repeated questions about her business activities and financial dealings. She
was replaced by Kristalina Georgieva.
47
37
It remains to be seen how the President of the European Council and the
rotating Presidencies will handle agenda setting since under the previous
system the Presidency also hosted the European Council meetings and set the
agenda for the six month Presidency. The European Councils rules of procedure reinforce the importance of coordination between the triangle of the
President of the European Council, the President of the Commission and the
rotating Presidency, since the former is charged with responsibility for submitting an annotated draft agenda to the GAC in close cooperation with the
others.48 The idea of closely coordinating the Presidencies in clusters of three
over an eighteen month period is a good one in theory, although the practice
of the first two clusters (Germany/Portugal and Slovenia followed by
France/Czech Republic and Sweden) leaves room for reservations about how
joined-up they really were. One of the key problems is that the Member States
continue to attach a certain amount of prestige to their ability to shape EU
external action and may do so even more vehemently if the perception is that
the rotating Presidency is withering (especially if each member has to wait
fourteen years for the Presidency in an EU of twenty-seven). The ability of
Van Rompuy to find the necessary cohesion and consensus within the
European Council will therefore depend heavily upon the extent to which the
rotating Presidency will enable him to do so.
Although the role of the rotating Presidency has greatly diminished in terms
of CFSP, it remains active in other areas. In CFSP matters the Member States
are obliged to coordinate their positions and the HR/VP must organise this
coordination (Article 34(1), ex 19 as amended, TEU). For non-CFSP matters,
the Commission remains in the driving seat and this is where the HRs VP
hat is of particular importance.
The changes at the highest levels introduced by the Lisbon Treaty could
have two effects. First, the Treaty has actually increased the number of
Presidents (there are seven all told across the EU) and, with reference to external relations, the President of the European Council, the HR/VP, the President
of the Commission and the rotating Presidency of the Council will each have
specific external relations functions. The apocryphal Kissinger question of
whom to phone when you want to talk to Europe was only partially answered
by the Lisbon Treaty it continues to depend upon what the issue is. The
second factor and obvious danger is that the modifications will lead to less, not
more, consistency and coherence. The temptation to replicate old communautaire versus CFSP rivalries cannot be completely ignored and the extreme, if
not well nigh impossible, demands of the HR/VP position may open the way
for jockeying and rivalry.
48
European Council Decision of 1 December 2009 adopting its Rules of
Procedure, 2009/882/EU, OJ L 315/51, Article 3(1).
38
The issue of consistency in representation at the higher levels will have

knock-on effects for the negotiation of international agreements. Article
218(3) TFEU (ex 300 EC, as amended) states the following:
The Commission, or the High Representative of the Union for Foreign Affairs and
Security Policy where the agreement envisaged relates exclusively or principally to
the common foreign and security policy, shall submit recommendations to the
Council, which shall adopt a decision authorising the opening of negotiations and,
depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Unions negotiating team.
This implies that the Council will appoint the HR/VP only for clearly identifiable CFSP agreements and that all others should be negotiated by the
Commission. The obvious question that arises is what might happen in
those cases where a proposed agreement is of a mixed nature, with a
number of elements falling respectively under CFSP and Commission
competence. It may prove difficult to be entirely consistent on this issue,
given the need for a margin of discretion on the part of the Council to determine where the weight lies. The composition and direction of the negotiating team as laid out above would appear to suggest that for all negotiations
there should be an unambiguous head negotiator. Presumably this would
fall to the HR/VP for CFSP agreements and to the HR/VP or Commission
for cross-pillar agreements. It remains unclear though who would negotiate
in those situations where the Commission cannot claim exclusive competence (as opposed to a measure of competence, which was the measure
under the previous treaties). Since CFSP continues to exist as a pillar the
possibility that mixed agreements will have to be negotiated, notwithstanding the fact that any subsequent agreement will be that of the Union, means
that the potential for friction over the handling of these specific cases
cannot be excluded. The implications of Article 2(2) TFEU, which states
that The Member States shall exercise their competence to the extent that
the Union has not exercised its competence have yet to be thoroughly
explored.
The Programming and Implementation levels
The Council and working group levels
Brief mention should be made of the Council and working group levels since
there are a number of challenges that may arise for consistency. The Lisbon
Treaty proposes a division of the old General Affairs and External Relations
Council (GAERC), which overburdened the Foreign Ministers who sat in it,
into two new forms: a Foreign Affairs Council (FAC) and a General Affairs
Council (GAC). The GAERC covered preparation for meetings of the
39
European Council as well as all EU external action.49 The Lisbon Treaty therefore creates the basis for a non-rotational system consisting of the President of
the European Council, the HR/VP and the Political and Security Committee,
all of which co-exist somewhat uncomfortably alongside vestiges of the old
rotational system (the General Affairs Council and the Committee of
Permanent Representatives). The GAC is mandated with the task of ensuring
consistency in the work of the different Council configurations. It shall
prepare and ensure the follow-up to meetings of the European Council, in liaison with the President of the European Council and the Commission.50 The
FAC shall elaborate the Unions external action on the basis of strategic
guidelines laid down by the European Council and ensure that the Unions
action is consistent.51 Both have an important role in ensuring consistency
and responsibility in this regard will fall to the respective chairs. In the case of
the GAC, it is chaired by the rotating Presidency, while the FAC is chaired by
the HR/VP. The implications of the new configuration, when compared to the
GAERC, is that the rotating Presidency has been demoted and with it the ability to overtly shape and direct EU external relations, most notably in the case
of CFSP. The pre-Lisbon Presidency saw the key roles being assumed by the
Prime Minister and the Foreign Minister; under the current system the two risk
becoming virtually jobless or, at best, subsidiaries of Herman Van Rompuy
and Catherine Ashton respectively.52
One possibility of this new reality is that the Member States may show a
preference to favour the GAC as a means of reasserting national prestige
which, in turn, could imply the wresting away or claw-back of external relations portfolios from the FAC in an attempt to confine it to CFSP and CSDP
matters. Since the GAC will be chaired by the rotating Presidency the potential for a clash of powers between the President of the European Council and
a rotating Presidency seeking to garner more powers has to be guarded
against.53 The rotating Presidency will also have its wings clipped compared
to the old GAERC since the rotating Presidency will have to agree upon a
multiannual work programme agreed with the Commission and the
Parliament. The multiannual work programmes hold the potential to guard
49
Council Decision of 15 September 2006 adopting the Councils Rules of
Procedure, 2006/683/EC, Euratom, OJ L 285/47, Article 2.
50
Article 16(6) TEU.
51
Ibid.
52
Missiroli, A. and Emmanouilidis, J. (2009), Implementing Lisbon: the EU
Presidencys other (rotating) half, EPC Policy Brief, European Policy Centre,
Brussels, December, p. 2, available at http://www.epc.eu (accessed 22 January 2010).
53
Kaczyn
ski P.M. and P. Broin, Two Leaders in Search of a Job Description,
(2009) CEPS Policy Brief (Brussels: Centre for European Policy Studies) 25
November, p. 1, available at: http://www.ceps.eu (accessed 22 January 2010).
40
against the frequent insertion of national imprimaturs, often with a thinly

disguised European facade covering self-serving national priorities.
The Treaty is silent on the composition of the GAC and FAC although, thus
far, the back-to-back format of the meetings has meant that foreign ministers
are generally in attendance for both Councils. The first few meetings of the
Councils, since March 2010, show a certain ambiguity when it comes to their
specific portfolios. The GAC is chaired by the rotating Presidency and tends
to include preparations for forthcoming European Councils, foreign affairs,
enlargement, the external dimensions of Justice and Home Affairs, terrorism,
development and agriculture. The FAC, chaired by the High Representative,
includes CFSP, Security and Defence, trade, development and the external
aspects of the European Economic Area. The danger exists that the foreign
ministers may succumb to the temptation to reduce the FAC to a specialist
CFSP/CSDP body whilst maximising their own collective external relations
influence under the hat of the rotating Presidency. Andrew Duff has
presciently warned that politically charged agenda items are not allowed to
migrate from the FAC towards a GAC stuffed with foreign ministers.54
Further complications with potentially negative effects for consistency may
follow from the chairing arrangements beneath the Council level. The Political
and Security Committee (PSC) will be chaired by a representative of the
HR/VP, whereas the Committee of Permanent Representatives (COREPER)
will continue to fall under the rotating Presidency. The latter will continue to
bear responsibility for preparing the work of the Council.55 This implies that
the old system will still prevail, whereby COREPER ultimately has final
responsibility in the preparation of Council meetings, but with different chairing arrangements for the two high level committees. This does not need to be
an insuperable problem, but it does make new demands upon coordination
between the HR/VP and the chairs operating under her aegis and the rotating
Presidency trio.
The functioning of the PSC itself calls for a level of coordination with the
HR/VP and this was clearly foreseen in the Treaty which mentions one of the
tasks of the committee being to monitor the implementation of agreed policies, without prejudice to the powers of the High Representative.56 The role
of the representative of the HR/VP, who will chair the PSC, is clearly vital in
this regard. This case and others, such as the working groups, raises the more
general point that effective coordination with the HR/VP will depend heavily
upon deputies including the chairs of the PSC, the representatives of the
54
Duff, A., All Eyes on Triple-hatted Ashton, European Council on Foreign
Relations, 16 December 2009, available at http://ecfr.eu/ (accessed 25 January 2010).
55
Article 16(7) TEU.
56
Article 38 (ex 25, as amended) TEU.
41
HR/VP who chair the relevant working groups (see below) as well as the
possible appointment of Special Representatives by the Council, acting on a
recommendation from the HR/VP.57
The somewhat cumbersome chairing arrangements are reflected at the
working group level. The preparatory bodies of the FAC in the area of trade
and development will be chaired by the rotating Presidency, as will a handful
of other working parties.58 All geographic preparatory bodies fall under a
representative of the High Representative, as do horizontal (that is thematic)
preparatory bodies and all CSDP bodies. A draft Council decision laying down
these measures notes somewhat obviously that, The High Representative and
the six-monthly rotating Presidency shall closely cooperate in order to ensure
coherence among all the preparatory bodies for the Foreign Affairs Council.59
The same document notes that whoever is appointed in a chairing capacity by
the HR/VP shall enjoy the confidence of the Member States and that person
shall be drawn from the EEAS, or at least join the EEAS, for the duration of
that task. The support tasks for the preparatory bodies would thus appear to be
split between the Council Secretariat (supporting the rotating Presidency and
certain FAC preparatory bodies) and the EEAS (supporting the FAC).
The chairing arrangements suggest that the HR/VP will be able to assert
more influence on international trade and development issues since these
issues will fall under the FAC. When viewed from a consistency standpoint
this is to be encouraged, especially given the significant overlap between
CFSP, trade and development issues. The HR/VPs chairing role of the FAC
also gives rise to the question of whether a de facto hierarchy will arise in the
College of Commissioners, even if the Vice-Presidents officially enjoy no
formal influence over other Commissioners.
The problems for overall coherence of EU external action under the Lisbon
Treaty are most likely to arise from cross-cutting issues that may involve
development, geographical and security-related issues simultaneously. In this
regard the role of the working party of Foreign Relations Counsellors who
examine the financial, legal and institutional aspects of horizontal issues (that
is, cross-pillar matters) is of particular importance. This is where the EEAS,
the Commission, the Council Secretariat and the Member States (via the
57
58
This is provided for in Article 33 (ex 18, as amended) TEU.

These are the working parties of Foreign Relations Counsellors (RELEX), the
Working Party on the (International) Aspects of Terrorism (COTER), The Working
Party on the application of specific measures to combat terrorism (COCOP), the
Working Party on Consular Affairs (COCON), the Working Party on Public
International Law (COJUR) and, the Working Party on the Law of the Sea (COMAR).
59
Draft Council decision laying down measures for the implementation of the
European Council Decision on the exercise of the Presidency of the Council (2009),
16086/09, Brussels, 16 November, p. 9.
42
network of European Correspondents) would presumably come together if

need be. At a higher level the role of COREPER was also important when it
came to delimiting cross-pillar issues; quite how this traditional role will play
out under the new chairing arrangements remains to be seen.60
Since the arrangements outlined above are in the earliest stages, it is difficult to reach any fast conclusions. One obvious comment, however, can be
made. The logic of multi-hatting at the higher levels, most notably in the case
of the HR/VP, appears to dissolve at lower levels where the chairing and coordination arrangements appear to be more complicated compared to the preLisbon situation. A formal evaluation of the functioning of these arrangements
will be an integral part of the 2012 status report.
The sui generis European External Action Service
The EEAS was described as sui generis by Barroso and by Solana, the High
Representative for CFSP, in 2005.61 The term is understood to imply that the
EEAS is separate from both the Council and the Commission but with close
links to both.62 Although a politically expedient term at the time, due to interinstitutional nervousness in Brussels and reticence from the Member States, it
fails to cast much light upon the contemporary dilemma of how such an entity
will pull together the different institutions and policy areas into a coherent
service assisting the HR/VP. The risk is that the EEAS will become the object
of tensions between the EU institutions and will have a difficult birth which,
closely observed by the Member States, will help determine how seriously
they take the new sui generis creation.
Any treaty-based analysis of the issue of consistency will naturally lead to
a top-down approach to the matter. As was argued above, it is in the nature of
treaties to outline the key objectives and institutions, and to leave much of the
rest to be worked out. This is true of the Lisbon Treaty which spends little time
upon the EEAS and only introduces it in the vaguest of terms with the mandate
of assisting the High Representative.63 The Treaty does not say the High
Representative and Vice-President, which raises the question of who or what
will assist the Commission part of the HR/VPs demanding position. The
Swedish Presidency therefore sensibly suggested that:
60
See: Duke, S. and Vanhoonacker, S., Administrative Governance in CFSP:
Development and Practice, (2006) 11 European Foreign Affairs Review 63.
61
Council of the European Union (2005), Progress Report: European External
Action Service, 9956/05, CAB 24, RELEX 304, Brussels, 9 June.
62
Progress Report from the Presidency to the European Council (2008),
Preparatory Work in View of the Entry into Force of the Lisbon Treaty, 10650/08,
Brussels, 13 June, p. 9.
63
Article 27(3) TEU.
43
To ensure the consistency and better coordination of the Unions external action, the
EEAS should also assist the President of the European Council and the President as
well as the Members of the Commission in their respective functions in the area of
external relations as well as closely cooperate with the Member States.64
The Swedish proposal was subsequently adopted in the Council decision of 26

July 2010 on the organisation and functioning of the EEAs. As was argued,
this may prove to be an important source of consistency at the top levels of EU
external relations.
The Treaty stipulates that the functioning of the EEAS is to be established
by a Council decision, based on a proposal by the HR/VP, after consulting with
the European Parliament and obtaining the Commissions consent. Even prior
to the July 2010 Council decision the broad outline of the Service had already
been established. The EEAS shall be composed of single geographical
(covering all regions and countries) and thematic desks which would continue
to perform, under the authority of the HR, the tasks currently executed by the
relevant parts of the Commission and the Council Secretariat.65 Enlargement
will continue to remain a Commission responsibility, although there will be
desks covering these countries for non-enlargement-related issues within the
EEAS. Trade and development policy also remain the responsibility of the
relevant Commissioners and Directorates-General. In the case of the latter
though, the intention of the EEAS to cover all regions and countries implies
that the political desks from DG Development as well as the programming
aspects will be transferred to the EEAS.66 The various crisis management
bodies, which fell under the authority of the previous High Representative,
will also be transferred to the EEAS. This includes the Crisis Management and
Planning Directorate (CMPD), the Civilian Planning and Conduct Capability
(CPCC) and the EU Military Staff (EUMS) who all fall under the HR in the
operational chain of command. The Situation Centre (SitCen) and the Crisis
Room (from DG RELEX) will also be transferred. The question of whether
they should comprise an integral directorate within the EEAS remains controversial and up in the air at the time of writing.
Since the HR/VP is tasked with responsibility for ensuring the coordination
and consistency as well as the strategic direction of the EUs external policies,
64
Presidency report to the European Council on the European External Action
Service (2009), 14930/09, 23 October, p. 2.
65
Ibid. p. 3.
66
These are Directorate D (ACP II West and Central Africa, Caribbean and
Overseas Countries and Territories), Directorate E (Horn of Africa, East and Southern
Africa, Indian Ocean and Pacific), Unit C1 (ACP I: Aid Programming and
Management) and Unit C2 (Pan-African Issues and Institutions, Migration and
Governance).
44
the EEAS should, according to the Swedish Presidency, play a leading role in
strategic decision-making.67 The danger is that the EEAS will be seen as the
programming and decision-making body whereas the Commission DGs will
be seen as the implementation bodies. Conversely, the Member States and the
Council Secretariat may be tempted to promote such a division of labour. Any
such polarisation will not only defeat the logic of enhancing coherence (and,
incidentally, undermine the HR/VP in her dual roles) but may also serve to
promote greater distance between programming and instruments rather than
synergies. If the EEAS is to promote consistency and coherence, the link
between programming and implementation must be carefully thought through
since the thematic instruments remain within the Commission or under their
administration.68
The financial arrangements surrounding the Service will also indicate
where the centre of (political) gravity has moved to. The funding instruments
are likely to remain within the Commission, albeit subject to greater European
Parliament scrutiny and thus the European Parliament would have a far more
influential role than hitherto. The issue arises of who should programme,
prioritise and direct financial assistance. Given that consistency is our primary
concern, it would make sense for the HR/VP and the EEAS to be involved in
the prioritisation and programming of financial assistance. In practical terms
this would mean that the HR/VP could direct the EEAS to reallocate priorities
under (Heading 4 of) the budget so that the critical link between political priorities, programming and implementation would be reinforced. The Commission
would remain responsible for the implementation of operational expenditure,
including full project cycle management, falling within their services.
The above logic could imply that the geographical assistance instruments
(the European Neighbourhood Policy Instrument (ENPI), the Development
and Cooperation Instrument (DCI), the European Development Fund (EDF)
and the Instrument for Pre-Accession (IPA)) should be allocated on a
geographical as well as a political level. The first two of the programmes were
previously administered by DG RELEX and it is thus natural to suggest that
programming authority should be transferred to the HR/VP and the EEAS. The
EDF is administered by DG Development, but again it would make sense to
move the programming elements to the EEAS whilst retaining overall
budgetary responsibility and implementation within the Commission. Since
67
68
Supra, note 64, p. 4.

These include the European Neighbourhood and Partnership Instrument, the
Development Cooperation Instrument, the European Development Fund, the
Instrument for Cooperation with Industrialised Countries, the European Instrument for
Democracy and Human Rights, the Instrument for Nuclear Safety Cooperation and the
Instrument for Stability.
45
the EDF is by far the largest part of the EUs external budget (although, technically speaking it is not budgetised as part of the EU budget) this will not
only be the most controversial part of the struggle over the programming of
instruments, but also a litmus test of how the Commission, the Council
Secretariat and the Member States are willing to collaborate.
The final programme is more specific in nature and is an enlargement based
financial tool and should therefore remain in DG Enlargement. Other funds,
such as humanitarian assistance, should remain with ECHO, but with close
coordination with the EEAS geographical desks. The Instrument for Stability
(IfS), designed to provide short-term non-humanitarian assistance for crisis or
post-crisis stabilisation scenarios, was administered through DG RELEX and
should, logically, be partially transferred to the EEAS. The Swedish
Presidency proposed that preparation of actions related to the CFSP budget
and the Instrument for Stability (Exceptional Assistance Measures and Interim
Response Programmes) should be handled by the EEAS.69 This is, however,
likely to be controversial since it would open questions regarding the legal
character of the EEAS and its ability to actually implement funding
programmes.70 It could though be reasonably argued that the main crisis
management tools will be centralised around the HR/VP and the rapid
response financial tools should also be programmed via the EEAS.
Notwithstanding the immense sensitivities that surround funding issues, the
overall aim of bringing the EUs political agenda closer to the policy instruments is essential for both consistency and coherence.
The question of the composition of the Service is a further sensitive issue
since this includes not only personal matters, such as career development and
promotion, but more general issues of the weight of the EEAS and the implications of this for EU external relations. The staff will, according to the Treaty,
be drawn from the relevant departments of the Commission and the General
Secretariat of the Council (GSC), as well as staff seconded from the diplomatic services of the Member States. Staff emanating from the Member States
should be accorded the same opportunities, rights and obligations as staff
coming from the Commission and General Secretariat of the Council.
Although the intention of the Lisbon Treaty is to move away from the communautaire versus intergovernmental debates of yore, it would be naive to
pretend that they have vanished with the introduction of the new treaty. The
Lisbon Treaty says, without elaboration, that the EEAS shall draw upon the
relevant departments of the General Secretariat of the Council and of the
69
70
Supra, note 64, p. 4.

In particular Article 317 TFEU states that the Commission shall implement
the budget in cooperation with the Member States...
46
Commission as well as staff from Members States for its composition.71 The
EEAS will draw heavily upon the Commissions DG RELEX (External
Relations) and up to one-third of the current staff (of around 5,500) may be
assigned on a temporary basis to the Service. The extent of DG Developments
involvement remains ambiguous, but it seems to be generally accepted that the
Commissioner for Development should retain responsibility and the instruments necessary (like ECHO) to effectively manage development policy.
The question of what the relevant departments are has generated much
debate and some anguish. The obvious building blocks are the GSC, especially
those staff from the current external relations directorate-general (DG-E) in
the relevant geographic and thematic desks, the Policy Unit, the EU Military
Staff, the SitCen, the Civilian Planning and Conduct Capability, the Crisis
Management and Planning Directorate, as well as the Geneva and New York
liaison offices being involved with the Service. Specific desks, like trade,
development and enlargement, will remain within the GSC. On the
Commission side it will involve nearly all of DG RELEX, including the
External Service (responsible for staffing the delegations) as well as a number
of other geographical desks drawn from other DGs in the Commission. The
question arises of how the Commission will fulfil its missions if, in principle,
the geographic desks are to be found in the sui generis EEAS. The staff from
the Member States will eventually constitute one third of the staff (at AD
level) and this will include diplomatic staff serving in delegations.
The actual composition is in and of itself an interesting issue since there
will be inevitable pressures over roles and levels. The initial appointments to
the Services corporate board as well as to a number of EU delegations were
made at the end of 2010, followed by a spate of senior appointments at the
beginning of 2011, filling 26 of the 31 senior positions. The initial reaction to
these appointments was consternation at the number of positions filled by
United Kingdom nationals (6 of the 26), while France secured only three of
the posts (including the Executive Secretary-General, Pierre Vimont). The
Service will be fully staffed and any necessary adjustments made by 2013
whilst also aiming for budget neutrality, at the insistence of the Member States
and the European Parliament. It is, however, apparent that whatever the final
shape of the EEAS, it will be a primarily Commission staffed Service due to
the existing Commission staff and budgetary preponderance. This, combined
with greater Parliamentary oversight of the EEAS budget, may well shift the
institutional balance away from the Council towards the Commission (thus
countering the conventional wisdom that the development of CFSP and ESDP
has shifted the weight in EU external action towards the Council).
71
Article 27(3) TEU.
47
As with the HR/VPs position, the question of whether or not the EEAS
contributes to overall consistency and coherence in EU external relations will
depend upon a number of factors. These include the willingness of the EU
institutions to welcome the EEAS and to support it and, of equal importance,
the willingness of the Member States to send qualified diplomats at a variety
of levels to the Service. Much will also depend upon whether the link between
programming (to be carried out mainly in the EEAS) and implementation
(which remains for the most part in the Commission) will actually lead to more
coherence. In theory the attempt to link policy more closely with instruments
is commendable and may have a positive impact from a coherence perspective. Alternatively, the sensitivities over the politicisation of development
cooperation in particular, may prove to be divisive and lead to retrenchment
across the Rue de la Loi.
The elevation of the eradication of poverty to a specific objective of the
Union in its external relations should strengthen the position of the development community since it will inform other areas of EU external action. There
is the risk of protectionism among the development community and maybe
DG Development itself, but this is based upon the outmoded notion that development aims and more general foreign policy can be kept separate. The situations in the Sudan or Somalia serve as unfortunate examples. The issue of the
programming of development aid will be one of the crucial tests for the EEAS
and the extent to which it may then hope to instil more coherence into the
wider external actions of the EU.
An indirect and often overlooked factor contributing to consistency and
coherence is training, especially in the case of the EEAS. The pre-Lisbon
arrangements for training of external relations officials was fragmented within
the EU institutions and often jealously guarded at the national level. The result
has been considerable duplication of effort, multiple budget lines and the
general failure to establish training as a priority. DG RELEX had no less than
three entities responsible for training: one for the external service (or the old
Commission delegations), the second for staff within the HQ and, finally, the
Diplomatic Exchange and Secondment programme and the Diplomatic
Training Programme. The positive aspects of these training programmes need
to be carried forward to the EEAS, but in a more coherent manner. One of the
principal challenges will be how to incorporate the Member States more
systematically since the training demands for the staff coming to the EEAS
from the Commission and Council Secretariat will differ from those of
temporarily assigned national diplomats. The former will require training to
assume diplomatic functions, for which they were not formally and systematically prepared, while the latter often lack any deep knowledge of the institutions and procedures in which they find themselves working. The modest but
important start made in this regard in the Diplomatic Exchange and
48
Secondment programme needs to be built upon and the number of national

diplomats exposed to European-level training needs to be dramatically
increased. The national diplomatic academies have also proved that they have
much to offer EU officials when it comes to preparing for diplomatic roles
which, until the Lisbon Treaty, they were generally not prepared for.
The actual content of any prospective training is open to debate, but the
establishing of a specific diplomatic training programme for the EEAS is vital
to the Services esprit de corps. Staff who have gone through training together
and who have established similar social networks are far more likely to establish coherent and cooperative working patterns. It is too early to move towards
a European Diplomatic Academy, since this would imply that the physical
location connotes a European capital of diplomacy. By way of contrast, far
more thought should have gone into the training dimensions of the EEAS
since it is a fundamental element, rather than an ad hoc detail.
External representation and the EU delegations
The discussion above dwells heavily upon internal coordination and consistency but brief consideration needs to be given to external representation. The
role of the EU delegations, formerly the 136 Commission delegations, is
pivotal in this regard. The chances for consistency are enhanced by the simple
fact that the delegations will henceforth represent the Union which, as
observed, now has formal legal personality under the Lisbon Treaty. This
implies that the delegations will represent all areas of interest to EU external
action and not merely those pertaining to the (former) Community.
Under the Treaty the delegations of the EU come under the authority of the
HR/VP. The individual delegations fall under the head of delegation who, in
turn, reports to Catherine Ashton. Since the delegations will cover both CFSP
and non-CFSP matters the question of which of the HR/VPs personal (Council
or Commission) they report to is unclear; on the latter would the report be
made directly to the responsible Commissioner or via the HR/VP to the
Commissioner? Union delegations would draw upon the EEAS for some of
their staff and, again in theory, enhance the representation of the Union to third
parties as well as give it more visibility.72 The Union delegations will also
assume the current role and functions currently performed by the rotating
Presidency in terms of local representation. The significance of the metamorphosis of the current Commission delegations into fully-fledged Union delegations lies in the potential for a strengthened link between the policy and
delivery levels.
72
For an in-depth examination of the issues surrounding the EEAS see: Duke,
S., Providing for European-level Diplomacy after Lisbon: The Case of the European
External Action Service, (2009) 4 The Hague Journal of Diplomacy 211.
49
The delegations will assume the role of the rotating Presidency during 2010
which will have a number of implications for consistency. The first and most
obvious implication would be that there will have to be an even greater
emphasis upon forward-looking discussions, in particular at the Head of
Mission meetings, since this role was previously assumed by the rotating
Presidency (with varying results).73
The EU delegation which, as mentioned, will be partially staffed by the
EEAS will rely heavily upon the delegations for reporting and analysis of
developments in particular countries and regions. The Country Strategy Papers
produced by the Union delegations are an obvious starting point for the EEAS
to produce an analysis of the priorities within the country but also across a
region. Programming could be both of a short-term nature (annual action
plans) but also make provision for multiannual programmes. Much of the
previous dialogue with third parties was in troika format, bringing the
Commission, the High Representative and the rotating Presidency (and, if
need be, the next Presidency), together at different levels. Under the Lisbon
arrangements the delegations would play a more active role in these discussions, supporting the HR/VP (or representative) and the Commission and,
where relevant, the rotating Presidency for non-CFSP-related issues. The
question of representation through the Heads of Mission, rather than the rotating Presidency, also poses the question of the extent to which the Union delegations will be able to move beyond their normal observer status in
international organisations.
In the pre-Lisbon situation the Presidency was invited under Article 37 of
the UN Security Council Provisional Rules of Procedure to take the floor,
whereas under the Lisbon Treaty the EU delegation would have to request
permission to speak through Article 39, since it is not a Member State. It
remains to be seen if the permission to speak will be given to the EU delegations under the same conditions. In the case of the UN General Assembly, the
pre-Lisbon situation was that when a UN Member State speaks on behalf of a
group (G77, ASEAN, EU etc.) they would be granted priority placement on
the speakers list in debates. Under the Lisbon arrangement the EU delegations
do not represent a UN Member State but only observer status. In the shorter
term the EU delegations may be confronted with some awkward compromises,
such as EU delegations being accredited as part of a General Assembly
Delegation of a Member State. This would imply that the EU delegation would
have to address the General Assembly from behind a national name-plate and
73
Presidency conclusions from discussions on the implementation of the Treaty

of Lisbon in New York, as an informal contribution to the deliberations in Brussels
(2009), Swedish Presidency of the European Union, 6 November.
50
thus exclude that UN Member State from holding a national position. In the
longer term Union delegations will aim to move beyond their normal observer
status in the UN General Assembly and to seek some kind of equivalent status
akin to that achieved by the Holy See or the Palestinian Territories. Whether
this is feasible is open to question, especially since this may well encourage
me too scenarios (there are over 70 collective observer organisations in the
UN). The practical challenges facing the EU delegations graphically illustrate
the complexities of a diplomatically sui generis EU operating in a Westphalian
world where, for the most part, states continue to constitute the membership
of international organisations.
The extent to which the emerging EU-level of diplomacy can operate or
even thrive in a predominantly Westphalian system is subject to different interpretations. Some have suggested that the expanding network of Union delegations, accompanied by the rising costs of maintaining national diplomatic
representation overseas, will mean that the EEAS may be able in the medium
to long term to take over some or all of the responsibilities exercised currently
by national representations abroad.74 Although the argument has some plausibility, it may underestimate the prestige that Member States still attach to
national diplomatic representation, even if consular in nature. As Brian Crowe,
a former British diplomat and former Director General for External Relations,
Council of the European Union, has warned:
there will increasingly be areas of common concern in which member states will
find it sensible to go beyond coordination of national and EU efforts to having a
single representation in third countries for at least some of them. Consular affairs
and visas are two areas which have been identified as a possibility. However, even
consular services may not be obvious for some member states which expect (or
whose parliaments expect them) to act nationally 75
A warning in this regard, based on a United Kingdom draft, appeared as a

declaration attached to the Lisbon Final Act:
... the Conference underlines that the provisions covering the Common Foreign and
Security Policy including in relation to the High Representative of the Union for
Foreign Affairs and Security Policy and the External Action Service will not affect
the existing legal basis, responsibilities, and powers of each Member State in relation to the formulation and conduct of its foreign policy, its national diplomatic
74
A More Coherent and Effective European Foreign Policy? (2009), A Federal
Trust Working Group Report, February, p. 22.
75
Crowe, B., The European External Action Service: Roadmap for Success,
(2008) Chatham House Report, available at: http://www.chathamhouse.org.uk
(accessed 25 January 2010).
51
service, relations with third countries and participation in international organisations, including a Member States membership of the Security Council of the United
Nations.76
Although declarations are not legally binding, the spirit of the declaration is
nevertheless potentially worrying and has a decidedly neo-Westphalian ring to
it at a time when the Lisbon Treaty is trying to bring the European and national
levels of diplomacy closer together.
A second curiosity of the Treaty is that the general aim of the Lisbon Treaty
was to make EU affairs more effective, coherent and simpler which applies with
special relevance to external action. The external representation of the EU prior
to the Lisbon Treaty was always complicated, largely due to the awkward
distinction between the Community and the intergovernmental (CFSP) aspects.
Although the Treaty promises to simplify external representation through the
presence of Union delegations, it was nevertheless surprising to see that the
High Representative may still appoint Special Representatives.77 The Treaty is
unclear about who these may be and it does not rule out the possibility of the
Special Representative being appointed from within the EEAS, but it does not
explicitly make the connection, thus leaving open the possibility that the
appointment may be of a senior national statesman (or, even more radically, a
woman). The role of the Special Representatives prior to the Lisbon Treaty was
very mixed and, from a consistency perspective, much depended upon the characters involved and the extent to which they kept the other actors on the ground
in the loop. The obvious way to enhance coordination is to follow the models
already established with the appointment of Erwan Four who was appointed
as the former Head of Commission Delegation and Special Representative to the
Former Yugoslav Republic of Macedonia. It remains to be seen how extensively
the HR/VP will choose to rely upon Special Representatives and from where the
HR/VP will make the recommendation to draw them, prior to Council approval.
Like the EEAS, the Union delegations which draw upon the Service for
some of their staff, will ultimately assist the HR/VP and less directly the other
major external relations actors in the EU. The quality of their reporting, its
timeliness and its security will therefore be an important consideration. The
fundamental challenge to the consistency of not only the Union delegations
but the emerging European level of diplomacy will rest on how the Member
States react to it. The Lisbon Treaty aims to diminish the differences between
the European and national levels of diplomacy, largely through a great national
presence in the EEAS and the Union delegations. This allows for some
cautious optimism regarding the coordination of the two levels of diplomacy.
76
77
Declaration 14 concerning the Common Foreign and Security Policy, TFEU.

Article 33 (ex 18, as amended) TEU.
52
Consistency and the Defence-Related Aspects

On the ESDP side, or Common Security and Defence Policy (CSDP) as it is
renamed, there are also suggestions for increasing the effectiveness of the
policy area. In this case the main instruments are more forms of flexibility
(permanent structured cooperation amongst those Member States whose military capabilities fulfil higher criteria and which have made more binding
commitments to one another in this area with a view to the most demanding
missions;78 enhanced cooperation79 and even groups of Member States being
charged by the Council with specific responsibilities80). These forms of flexibility are probably not so much innovations as codifications of what is happening fairly widely anyway. Flexibility is not necessarily an anathema to
consistency, as long as any resultant actions are based upon consensus. There
is, though, the danger of flexibility introducing more free-rider behaviour: the
expectation that certain Member States (namely, the larger and more capable)
will assume primary responsibility. The fact that permanent structured cooperation rests, implicitly, upon those Member States with higher capabilities
means that the actual use of crisis management tools will depend heavily upon
the willingness of a few key states to be involved, rather than any more general
considerations of the objectives of the EU or any form of consistency in external action. This observation is somewhat countered by the stipulation that all
Member States shall make civilian and military capabilities available to the
Union for the implementation of the common security and defence policy, but
whether it will actually result in the desired capabilities remains to be seen.81
One of the macro questions concerning the overall coherence of Europes
defence efforts relates to the division between general security issues, those of
a purely defensive nature (that is, territorial defence from external aggression),
and the EUs relations with other defence organisations such as NATO. Two
clauses have been taken positively in this regard as ways of enhancing the
overall coherence of the EUs defence efforts. The first is the so-called mutual
defence clause which suggests the adoption of a quasi NATO Article 5 collective defence clause in the EU context. Article 42(2) (ex 17, as amended) states
that The common security and defence policy shall include the progressive
framing of a common Union defence policy (emphasis added) when the
European Council unanimously so decides. The clause created much initial
excitement but it is tempered by the important stipulations that, The policy of
78
79

Article 20 TEU (ex Articles 27a to 27e, 40 to 40b and 43 to 45 TEU and ex
Articles 11 and 11a TEC, as amended).
80
81
Article 42(3) (ex 18, as amended) (emphasis added).
53
the Union in accordance with this Section shall not prejudice the specific character of the security and defence policy of certain Member States and shall
respect the obligations of certain Member States, which see their common
defence realised in the North Atlantic Treaty Organisation.82 The initial fears
that this might cause a serious challenge to the EUs relations with NATO
appear unfounded (although there are other profound issues of a more political nature, most notably differences over Cyprus). The clause was also
misconstrued in the first Irish referendum on the Lisbon Treaty to imply that
the neutrality of Ireland would be challenged. Guarantees that this would not
be the case were later agreed to by the European Council as a pre-condition for
the second (successful) Irish referendum.
The second clause to elicit attention was the Solidarity Clause, referred to
above. The clause was originally adopted by the European Council in the
aftermath of the Madrid bombings of 11 March 2004 with regard specifically
to terrorist attacks. The Treaty obliges the Union to mobilise all the instruments at its disposal, including the military resources made available by the
Member States in reaction to a terrorist attack in the event that a Member
State is the object, or in the event of a natural or man-made disaster.83 This has
been misconstrued as a further move towards a collective defence identity for
the EU but the Solidarity Clause specifically applies to terrorist attacks,
natural or man-made disasters and not external territorial aggression against a
Member State.
The Lisbon Treaty fails to clarify CSDPs role vis--vis other European security partners, which is of special importance given that the Lisbon Treaty clearly
sees this as a significant growth area of EU external action. Relations with
NATO in particular remain hostage to a wider set of political considerations,
especially the Cyprus problem, the future of EUUS relations, NATOs new
Strategic Concept and the willingness of the EU members to make sure that
CSDP has the necessary resources and capabilities. In spite of these admittedly
major hurdles, relations with other critical security partners, especially NATO,
could be improved by attributing a direct role to the HR/VP for EU representation at the civilian level (that is, the North Atlantic Council), supported by the
EEAS, in place of the current cumbersome and unproductive methods.
One potentially important innovation which may have significance for
general coherence between the security and defence and other aspects of EU
external action is the possibility of defence ministers meeting separately with
the High Representative under the guise of the FAC.84 This would allow
82
83
84

Article 222 TFEU.
Honor Mahony, Ashton Set for Conciliatory Dinner with Defence Ministers,
EU Observer, 23 April 2010.
54
defence ministers to take decisions on important topics like capabilities development and to share their concerns directly with the High Representative.
CONCLUSION
This chapter has attempted to give a brief overview of consistency and coherence in EU external relations in a historical and institutionalist manner.
Consistency and coherence are far from being uni-dimensional concepts and
both have complex implications for the EU institutions, the Member States as
well as third parties working with the EU. Neither are they new concerns. Both
have a long history in EU external relations, but in particular since the end of
the Cold War and the advent of CFSP where questions of the EUs role in the
world and the way in which it wishes to balance the economic, political and
security dimensions of foreign policy have come to the fore.
The idea that there are institutional panaceas for the consistency issue
should be resisted but we should not ignore the consensus, stemming from the
Convention on the Future of Europe, that greater consistency, coherence,
effectiveness and visibility have important institutional and procedural ramifications. The institutional adaptations and changes suggested by the Lisbon
Treaty suggest some room for optimism, but only with the implementation of
the Treaty will we see whether or not this potential will be fulfilled. Not all
share this optimism, however. Daniel Korski noted that the debates about the
EUs new foreign policy bureaucracy have turned into a turf-protecting, entitlement-securing battle between the Commission and the Council, as both seek
to maintain their institutional responsibilities and staff prerogatives.85
The stakes of inconsistency for all are higher at a time of important global
shifts, increasing regionalism and at a moment when purely Westphalian
notions of foreign policy and diplomacy are dated. The efforts of legal scholars to further specify competences are vital to the issue of consistency, as will
be the efforts of political scientists to think through the institutional and structural implications of the Lisbon Treaty. But in both cases it is the spirit in
which the implementation of the Treaty is approached by the various parties
that may well be decisive.
85
Korski, D., Acting as One: Europes Diplomatic Service, (2008) European

Council on Foreign Relations, 3 March, available at http://www.ecfr.eu/ (accessed 25
January 2010).
2. Coherence in European Union foreign

relations law
Marise Cremona
I
INTRODUCTION
The need for coherence in EC external policy made its way into the
Community Treaties as an expressly stated concern at the time of the Single
European Act, at a moment when Community external action was expanding
and European Political Cooperation (EPC) was institutionalized. The
Presidency and the Commission were mandated to ensure consistency
between EPC and the EC.1 In transforming the EPC into the Common Foreign
and Security Policy (CFSP) the Treaty on European Union reiterated the need
for consistency between the CFSP and the external policies of the Community,
linking it to the single institutional framework and imposing a duty on the
Council and Commission to ensure consistency specifically in relation to
external activities.2 The Treaty on European Union at this time also added new
EC Treaty provisions on development cooperation, a competence declared to
be complementary to Member States development policies and requiring
coordination between the Member States and the Community.3 From the start,
then, we can see coherence appearing as a concern in terms of both interpolicy coherence (so-called horizontal coherence) and coherence between the
Member States and the Community/Union (referred to as vertical coherence).
In the process of treaty reform that started with the Laeken Declaration in
December 2001 and ended with the Treaty of Lisbon, signed in October 2007,
the coherence of the Unions foreign policy has been one of the recurrent
themes. The Laeken Declaration asks, how should a more coherent common
foreign policy and defence policy be developed?4 and raises the issue of
foreign policy coherence expressly twice, first in the context of the organisation
1
2
3
4
Art 30(5) SEA.

Ex-Art 3 EU.
Arts 177(1) and 180(1) EC; see now Arts 208(1) and 210(1) TFEU.
Laeken Declaration on the Future of the European Union, European Council,
14 and 15 December 2001, Annex I to Presidency Conclusions.
55
56
of Union competence and its relation to that of the Member States, and second
in the context of institutional and decision-making efficiency. In June 2006,
when the future of the Constitutional Treaty was in doubt, the Commission
published a Communication to the European Council entitled Europe in the
World Some Practical Proposals for Greater Coherence, Effectiveness and
Visibility. Again these two aspects of coherence are brought out, the
Commission arguing that coherent and effective external policies require political agreement among Member States on the goals to be achieved, appropriate
policy instruments and an effective legal and institutional framework. Political
will is not enough:
even when there is sufficient political will, the EUs impact falls short when there
are unresolved tensions or a lack of coherence between different policies. There is
a need for strong and permanent efforts to enhance the complementary interaction
of various policy actions and to reconcile different objectives (for example in trade,
agriculture, development, environment or migration). For the EU, there is the additional challenge in ensuring coherence between EU and national actions.5
In this Communication the Commission, while arguing that the Constitutional

Treaty would make a number of changes that would enhance coherence, put
forward some practical proposals designed to improve coherence under the then
existing Treaty framework.6 The IGC Mandate agreed in June 2007 still saw
foreign policy coherence as a key objective of revived treaty reform: the IGC was
asked to draw up a Reform Treaty amending the existing Treaties with a view to
enhancing the efficiency and democratic legitimacy of the enlarged Union as well
as the coherence of its external action.7 The Treaty of Lisbon, as the outcome of
this process, stresses the need for consistency and coherence across the range of
external policies and between external and other Union policies. It introduces a
number of institutional changes designed to reinforce coherence.
The first is to give to the European Council the mandate to develop overall
foreign policy strategy, through its Conclusions, through non-binding strategy
documents and also through binding Decisions which may cover CFSP and
other external policy areas (Article 22(1) TEU). This to a large extent institu5
EC Commission, Communication to the European Council, Europe in the
World Some Practical Proposals for Greater Coherence, Effectiveness and Visibility,
8 June 2006, COM (2006) 278.
6
These ranged from strengthening the role of the External Relations Group of
Commissioners in identifying strategic priorities, to joint (Council, High
Representative and Commission) policy papers, better coordination in Council to
promote consensus in multilateral organizations and other international fora, and
increased use of double-hatting between Heads of Delegation and EU Special
Representatives in third countries.
7
IGC Mandate, adopted by the European Council June 2007, para 1.
Coherence in EU foreign relations law
57
tionalizes existing practice. Second, the Treaty creates the new role of High
Representative for Foreign Affairs and Security Policy (HR), who will act in
a double role as President of the Foreign Affairs Council and as a VicePresident of the Commission. She is given the task of conducting the CFSP
and CSDP, both making proposals and implementing them. Within the
Commission she will not only have overall responsibility for the
Commissions external relations functions but will also coordinate and ensure
the consistency of the Unions external action (Article 18(4) TEU). Where
conflicts of interest arise, the HRs role within the Council prevails: she will
be subject to Commission procedures only to the extent compatible with her
conduct of the CFSP and her Council role. Third, the Treaty of Lisbon introduces the European External Action Service to assist the HR (in both her functions); the EEAS will be composed of officials of the Council Secretariat and
the Commission as well as staff seconded from national diplomatic services.
It is thus intended to bridge the gap between the two increasingly competitive
policy services within the Commission and the Council Secretariat but also,
through the involvement of the national diplomatic services, to encourage
vertical cohesion.8
These innovations no doubt have the potential to enhance coherence if they
work as intended. However the institutional picture is of course more complex
and we can identify a tendency in the revised Treaties to give a coordinating
role not just to one but to several actors. In addition to the HR (who chairs the
Foreign Affairs Council), we find that the President of the European Council
shall, at his or her level and in that capacity ensure the external representation of the Union on CFSP matters, without prejudice to the powers of the HR
(Article 15(6) TEU). The Commission is to ensure the Unions external representation, outside the CFSP (Article 17(1) TEU). The Council (primarily the
Foreign Affairs Council) is also, together with the HR, responsible for ensuring compliance with the principles of loyalty and solidarity within the CFSP.
The General Affairs Council (presided over by a Member State representative)
has charge over ensuring consistency in the work of the different Council
configurations, including the Foreign Affairs Council (Article 16(6) TEU).
8
The details of the functioning of the EEAS are to be the subject of a Council
Decision (Article 27(3) TEU); on 30 October 2009, the European Council agreed on
guidelines for the European External Action Service (Council doc. 14930/09) and the
HR presented a proposal for the Council Decision on 25 March 2010 (Council doc.
8029/10). See further Editorial comment, Mind the Gap, (2008) 45 Common Market
Law Rev. 317, at 321. For a discussion of the debate surrounding the proper scope of
the EEAS see Duke, S. and Blockmans, S., The Lisbon Treaty stipulations on
Development Cooperation and the Council Decision of 25 March 2010 (Draft) establishing the organisation and functioning of the European External Action Service
CLEER Legal Brief, 4 May 2010, available at http://www.cleer.eu.
58
Apart from the HR, individual Commissioners will have responsibility for
specific aspects of external policy, including trade, development and humanitarian aid.9 Not only will there be a number of different actors to coordinate,
a number of different actors will have responsibility for that coordination.
This suggests that although the Treaty of Lisbon has probably improved the
Unions institutional structures, these structures alone will not ensure coherence
of foreign policy or the unity of the Union as an international actor. The focus of
this chapter will not be on the institutional dimension to coherence, which is illuminatingly discussed by Simon Duke, but rather on the role which may be
played by legal norms (rules and principles) in seeking to achieve coherence.
The premise is not that legal norms are the best way (or a better way) to achieve
coherence, but rather the intention is to examine the extent to which the Treaties
and Court of Justice have developed norms which are relevant to the struggle for
coherence and to explore the role they might play, as well as their limits. We
need first to explore what coherence means, and whether it is a concept which
has any specifically legal content at all (section II). In fact, in thinking about
coherence, lawyers have often started with the distinction that derives from
political science literature between vertical and horizontal coherence.10 Because
it might make dialogue easier, this analysis is based on that framework, addressing vertical coherence in section III and horizontal coherence in section IV.
However, in order to understand the specifically legal dimension of coherence a
different conceptualization is superimposed on this basic distinction, which
addresses the fact that there are different dimensions to coherence as a concept
and that these are regulated by different rules and principles. The conceptualization offered here is of three different levels of coherence: the first is consistency, seen in terms of conflict resolution and requiring rules of hierarchy; the
second is the effective allocation of tasks between actors and instruments, avoiding both gaps and problematic duplication and requiring rules of delimitation;
the third is synergy between norms, actors and instruments, requiring principles
of cooperation and complementarity.11
9
Although it has rightly been suggested (Editorial comment, Mind the Gap,
(2008) 45 Common Market Law Rev. 317, at 3189) that the framing of the HRs tasks
within the Commission in Article 18(4) TEU leaves open the possibility that she might
take over all these responsibilities, the decision as to allocation of tasks lies with the
Commission President and alongside the HR the Commission for 20102014 duly
includes Commissioners for trade, development, enlargement and the ENP, and international cooperation, humanitarian aid and crisis response.
10
See for example Nuttall, S., Coherence and Consistency in Hill, C. and Smith,
M., eds, International Relations and the EU, OUP 2005, as well as Duke in this volume.
11
For an initial discussion of these three dimensions to coherence see Cremona,
M., Coherence Through Law: What Difference Will the Treaty of Lisbon Make?
(2008) 3(1) Hamburg Rev. of Social Sciences, 11.
II
59
THE MULTI-LAYERED NATURE OF COHERENCE
Although the dangers of incoherence in terms of policy outcomes and unfulfilled potential are evident, the nature and different dimensions of coherence
as a principle are still difficult to pin down. Coherence in fact has an ambiguous nature: it appears to have a primarily institutional/political character,
Gauttier for example arguing that at least in the context of EU foreign policy
it does not designate a specific legal concept.12 However according to Tietje it
is one of the main constitutional values of the EU.13 Certainly it is more than
a somewhat vaguely defined objective of good institutional and policy practice, and finds its expression in a number of legal provisions and principles.14
It provides a context and 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 principle of primacy
and the duty of cooperation.
In non-legal parlance there are two aspects to the meaning of coherence: on
the one hand cohesiveness, sticking together, connectedness; and, on the other
hand, a logical, orderly and consistent relation of parts, comprehensibility. The
coherence of EU foreign policy embodies both these meanings; it is not just a
measure of its connectivity, it goes to the root of whether it makes sense at all
does the EU speak and act comprehensibly? We should not therefore be
surprised that when we start thinking about the legal rules that could be said
to underpin the notion of coherence, we find ourselves bringing together most,
if not all, the fundamental constitutional principles that underlie EU law, and
in particular EU external relations law. As a legal concept coherence operates
to bring together to structure these fundamental principles, rather than
merely being one of them. As such it can seem to disappear and this may be
one reason why it is sometimes seen not as a legal concept at all but as something purely factual or political.
What does coherence mean as a principle, or value, of EU constitutional law?
An initial problem arises when considering coherence in the context of EU
foreign policy. The different language versions of the Treaties do not use the
same term; more specifically, where the French, Italian, German and other
language version use cohrence, coerenza, Kohrenz that is, coherence,
12
Gauttier, P., Horizontal Coherence and the External Competences of the
European Union, (2004) 10 European Law Journal 23, at 24.
13
Tietje, C., The Concept of Coherence in the TEU and the CFSP (1997) 2
European Foreign Affairs Rev., 211.
14
Hillion, C., Tous pour un, un pour tous! Coherence in the External Relations
of the European Union in Cremona, M. (ed.), Developments in EU External Relations
Law (Oxford: Oxford University Press, 2008).
60
the English versions use consistency. So, for example, Article 3 of the TEU
enjoins consistency of [the Unions] external activities as a whole in English;
la coerenza globale della sua azione esterna in Italian; and la cohrence de
lensemble de son action extrieure in French. This difference can be traced
back at least as far as the Single European Act of 1987 in its provisions on
European Political Cooperation15 and unfortunately has not been remedied in
the Treaty of Lisbon. In reading of consistency in the English language
version, therefore, we should at least be aware of the concept of coherence
which informs the other language versions.16 Coherence (at least in English)
is a broader and more flexible concept than consistency. As a number of writers have pointed out, while coherence is a matter of degree (a policy or an
action may be more or less coherent), consistency is a static concept (legal
provisions are either consistent or they are not).17 Gauttier refers to coherence
as a principle of action and organisation.18 All point to its dynamic nature,
involving balance and an incremental approach: a goal that is strived towards.
Indeed, coherence may be said to include (but not be limited to) consistency.
Coherence then appears to be a multi-layered concept. I propose here a
three level analysis of coherence, each supported by its own legal rules or principles. A first level requirement of coherence would indeed be consistency,
encompassing rules for resolving conflicts between norms; in other words,
rules of hierarchy. Thus, underpinning vertical coherence we have the rule of
primacy of Community law, ensuring that Community law will, if necessary,
prevail over conflicting norms of national law. Similarly, horizontal coherence
is supported by a hierarchy between the primary law of the EU including the
founding Treaties but also including general principles of law (including
fundamental human rights) and the secondary law enacted by the Unions
institutions. As the Court of Justice put it, these rules which vertically and
horizontally grant primacy to the EU Treaties imply the need for judicial
enforcement and are an expression of the rule of law: The European
Economic Community is a community based on the rule of law, inasmuch as
neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic
15
Under Article 30(5) SEA the external policies of the European Community
and the policies adopted by the European Political Cooperation must be consistent. The
Presidency and the Commission, each within its own sphere of competence, shall have
special responsibility for ensuring that such consistency is sought and maintained.
16
Hillion, op. cit. note 14.
17
See for example Tietje, op. cit. note 13, at 212; Koutrakos, P., Trade, Foreign
Policy and Defence in EU Constitutional Law (Oxford: Hart Publishing 2001) p. 39;
Wessel, R. A., The Inside Looking Out: Consistency and Delimitation in EU External
Relations, (2000) 37 Common Market Law Review 1135, at 1150.
18
Gauttier, op. cit. note 12, 401.
61
constitutional charter, the Treaty.19 While we may be able to establish a

formal hierarchy between instruments (for example, primary and secondary
law) it is, as we shall see, more difficult to identify conflict resolution norms
at the level of EU policies; coherence between policies tends to rely more on
other mechanisms or principles other levels of coherence come into play.
A second level of coherence is represented by rules of delimitation intended
to ensure both that limits on powers are respected and that there is an effective
allocation of tasks between actors and instruments. So, for example, not only
must the EU act within the limits of the powers conferred upon it by the
Treaties (Article 5(1) TEU), but each institution must also act within the limits
of its powers (Article 13(2) TEU), and the allocation of functions to the different institutions within the decision-making process is an expression of the
institutional balance established by the Treaty. The often difficult issue of
identifying the correct legal basis for an act is important precisely because of
these principles of conferral and institutional balance reflecting vertical and
horizontal coherence respectively. 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, is also an example of a delimitation rule
designed to ensure vertical coherence.
A third level of coherence implies synergy between norms, actors and
instruments, a synergy which the EU system endeavours to promote through
principles of cooperation and complementarity. We see these expressed in
Article 21(3) TEU, which requires consistency/coherence across all aspects of
Union external action and between external and internal policies (horizontal
coherence); in the duty of cooperation, based on Article 4(3) TEU where it is
referred to as the principle of sincere cooperation (vertical coherence), and on
mutual sincere cooperation between the institutions based on Article 13(2)
TEU (horizontal coherence). As we shall see, although the duty of cooperation
does impose clear obligations on the Member States, coherence in the sense of
synergy is promoted primarily through efforts towards complementarity, the
formulation of strategy documents and other institutional mechanisms.
These different sets of rules and principles, while all directed at coherence,
operate in different ways on norms, actors and policies. First level coherence
is concerned with norms and prioritizing between them; the second and third
levels may be concerned with the creation and implementation of norms but
they also apply to the exercise of competence in a broader sense, through
19
Case 294/83 Parti Ecologiste (Les Verts) v European Parliament [1986]

ECR 1339, at para 23, holding that acts of the European Parliament that have legal
effect must be subject to judicial review.
62
policy development and operational action. In what follows we will first

discuss the first level (resolving conflict through hierarchy), then the second
level (avoiding conflict through allocation) and finish with the third level
(synergy or complementarity), since in this way it is easier to outline their
distinctive characteristics. However this does not imply that a rule of conflict
is somehow clearer or simpler to apply than an allocation rule or that complementarity is somehow a higher or more desirable form of coherence than a
priority or an allocation rule. The distinction is designed rather to draw attention to the different ways in which actors and instruments may relate to each
other and to outline the different types of rule and principle which may be
appropriate in each case. Thus the priority rule to resolve actual conflict is
only needed where more than one actor or instrument (as sources of norms)
operate in the same field; rules delimiting competence which prevent such
overlapping action are needed where the exercise of competence by one actor
may threaten the integrity or autonomy of the other; an allocation rule may
need to be stronger where there is no clear priority rule; complementarity
implies that sharing the field of action will not, of itself, create conflict
between norms nor deprive any one actor of the ability to act. Notwithstanding
this congruence between the different levels of coherence, we will also see
evidence of a tension between them, and in particular between coherence as
expressed through rules of delimitation and coherence as expressed through
the principle of complementarity. One aim of this chapter is to indicate how
these tensions may arise so as to clarify where choices may lie.
III
VERTICAL COHERENCE
Vertical coherence refers to the relationship between Union and Member State
action, particularly in contexts where the EU and Member States may both act
in relation to the same policy or subject matter. This is the case with respect to
the Common Foreign and Security Policy (CFSP), governed by the TEU,
where the exercise of Union competence does not pre-empt or prevent
Member State action,20 and to areas of shared competence under the TFEU,
where the Union and the Member States may legislate and adopt legally binding acts in that area.21 Shared competence in this sense may be of different
kinds pre-emptive and non-pre-emptive and these different types of shared
competence between Member States and the EU have given rise to different
normative approaches to achieving vertical coherence.
20
21
See Declarations 13 and 14 attached to the Treaty of Lisbon.

Art 2(2) TFEU.
63
Coherence as Consistency
The first level of coherence requires consistency, and in the vertical dimension
of coherence this translates into rules which resolve conflict between norms.
Most important, we have the rule of primacy of Union law, ensuring that binding norms of Union law will, if necessary, prevail over conflicting norms of
national law. The doctrine of primacy was developed by the Court of Justice
in relation to both the EC Treaty22 and secondary Union law.23 The
Constitutional Treaty would have enshrined the rule in the Treaty itself;24 the
Treaty of Lisbon omits this provision, but as Declaration 17 states,
The Conference recalls that, in accordance with well settled case law of the Court
of Justice of the European Union, the Treaties and the law adopted by the Union on
the basis of the Treaties have primacy over the law of Member States, under the
conditions laid down by the said case law.
In the external field, we can see the rule of primacy in operation in CentroCom where, in the context of EC sanctions against Serbia and Montenegro, the
Court held:
The Member States have indeed retained their competence in the field of foreign
and security policy. At the material time, their cooperation in this field was
governed by inter alia Title III of the Single European Act. None the less, the
powers retained by the Member States must be exercised in a manner consistent
with Community law 25
This primacy of Union law applies not only to the Member States domestic legislation but also to any conflicting international agreements they may
have concluded.26 Article 351(1) TFEU may allow Member States to give
priority to agreements with third states concluded by them prior to the entry
into force of the EEC Treaty in 1958 or prior to the date of their accession to
the EU, but they are under an obligation to take all appropriate steps to elim22
23
Costa v ENEL [1964] ECR English special edition 585.

Case 106/77 Simmenthal [1978] ECR 629 in which the Court held that
national courts are under a Community law obligation not to apply national law which
conflicts with directly applicable Community law.
24
Art I-6 of the Constitutional Treaty provided that The Constitution and law
adopted by the institutions of the Union in exercising competences conferred on it shall
have primacy over the law of the Member States.
25
Case C-124/95 R v HM Treasury and Bank of England ex parte Centro-Com
[1997] ECR I-81, paras 24-5.
26
For example, in case C-476/98 Commission v Germany [2002] ECR I-9855
the Court held that elements of a bilateral air services agreement between Germany and
the USA were contrary to the EC Treaty provisions on establishment.
64
inate [any] incompatibilities and this may require renegotiation or even

denunciation of the prior agreement.27 The priority accorded the earlier agreement is thus in effect only temporary, and further, it serves only to protect the
rights of the third state under the agreement, not those of the Member State.28
It should be emphasized that this provision is not concerned with the existence
of Member State competence to act; thus in Commission v Austria it was
accepted that competence in relation to the regulation of foreign investment
was at the time shared between the EU and the Member States.29 The
Commission argued, however, that several of the Member States bilateral
investment treaties were incompatible with their obligations under EU law.30
It is the basis for that incompatibility which is the controversial element in
these cases: the Court held that the Member States agreements contained
clauses which would conflict with a potential future exercise of Union competence; unlike the open skies cases,31 the conflict was not with a substantive
norm of Union law such as the principle of non-discrimination, but with a
competence-conferring provision.32 The unease felt here is due to the application of a priority rule (Article 351(2) TFEU) not to two conflicting substantive
norms but to an EU competence-conferring norm over a Member States
substantive norm, an exercise which appears to import an element of delimitation into a rule of priority and thus to compromise the Member States sphere
of competence.
27
Art 351(2) TFEU; Case C-170/98 Commission v Belgium [1999] ECR I-5493,
para 42; C-84/98 Commission v Portugal [2000] ECR I-5215, para 58; C-205/06
Commission v Austria, 3 March 2009.
28
Case 812/79 Attorney General v Juan C. Burgoa [1980] ECR 2787.
29
Case C-205/06 Commission v Austria, 3 March 2009. The position in this
respect has changed with the coming into force of the Treaty of Lisbon, since by Art
207(1) TFEU, foreign direct investment is part of the common commercial policy and
thus falls within exclusive Union competence.
30
Case C-205/06 Commission v Austria, 3 March 2009; see also case C249/06
Commission v Sweden, 3 March 2009; case C-118/07 Commission v Finland, 19 Nov
2009.
31
See note 26 above.
32
Case C-205/06 Commission v Austria, 3 March 2009, para 37, referring to an
incompatibility between the Member States agreements and the powers of the
Council. Since they contained an unqualified commitment to liberalize capital movements between the Member State and the third country, conflict would arise were the
Union to decide in the future to impose restrictions on capital movements between the
Union and the third country in question, as it could do under Arts 64(2), 66 or 215
TFEU. For comment see Koutrakos, P., Comment Case C-205/06, Commission v.
Austria, judgment of the Court (Grand Chamber) of 3 March 2009, not yet reported;
Case C-249/06, Commission v Sweden, judgment of the Court (Grand Chamber) of 3
March 2009, not yet reported (2009) 46 CMLR 2059.
65
In considering the operation of the primacy rule in the context of the

Unions external policy we need to bear in mind that the scope of Union law
covers not only primary Treaty law but also international agreements entered
into by the Union. Such agreements are binding upon the Member States as
well as the Union.33 In Kupferberg the ECJ held:
In ensuring respect for commitments arising from an agreement concluded by the
Community institutions the Member States fulfil an obligation not only in relation
to the non-member country concerned but also and above all in relation to the
Community which has assumed responsibility for the due performance of the
Agreement. That is why the provisions of such an agreement, as the Court has
already stated in its judgement of 30 April 1974 in case 181/73 Haegeman [1974]
ECR 449, form an integral part of the Community legal system.34
In practical terms this means both that the Commission may bring an enforcement action against a Member State for failure to comply with an obligation
in a Union agreement,35 and that a provision in a Union agreement may be
found to create directly effective rights enforceable in national courts, if necessary rendering inapplicable conflicting domestic law.36
Declaration 17 cited above with its references to the Union and the
Treaties implies that the Member States intended their reference to the
doctrine of primacy to apply to Union law as a whole, but it is not completely
clear whether the CFSP is in fact covered: the case law of the Court of Justice
referred to in the Declaration concerned only the primacy of Community law.
It is clear that Union decisions, including those implementing the CFSP, and
international agreements adopted under CFSP powers are binding on the
Member States.37 The loyalty clause, which provided the basis for the development of the doctrine of primacy in Community law, applies also to the
CFSP.38 However, primacy is enforced through enforcement actions brought
by the Commission and through rulings of the Court of Justice on references
from national courts; the limited jurisdiction in relation to the CFSP given to
the Court of Justice by the EU Treaties does not seem likely to offer the
33
34
35
Art 216(2) TFEU.

Case 104/81 Hauptzollampt Mainz v Kupferberg [1982] ECR 3641, para 13.
C-61/94 Commission v Germany (International Dairy Arrangement) [1996]
ECR I-3989.
36
For example see Case 104/81 Hauptzollampt Mainz v. Kupferberg [1982]
ECR 3641; C-257/99 Barkoci and Malik [2001] ECR I-6557; C-265/03 Simutenkov
[2005] ECR I-2579.
37
Arts 288 and 216(2) TFEU.
38
Art 4(3) TEU.
66
possibility for the Court to develop or apply a rule of primacy to relations

between national law and CFSP acts or agreements.39
At the level of consistency it is clear that the Treaties and the Court of
Justice sustain vertical coherence by giving priority in case of conflict to the
Treaties themselves and to Union-created norms over national law. There is no
rule of Union law which precludes the Union, acting within its competence,
from adopting measures in conflict with pre-existing Member State acts or
agreements. In contrast, vertical coherence at the second and third levels
imposes obligations on the Union as well as the Member States
Coherence as Delimitation
The second level of vertical coherence, as defined here, requires an effective
allocation of tasks between actors and instruments. Within the Union system
of external action this aspect of coherence is reflected in rules of delimitation applicable to the existence of competence and to its exercise by both the
Union and the Member States. On the EU side the fundamental rule is the
principle of conferral, under which the EU must act within the limits of the
powers conferred upon it by the Treaties. As the Court has said, That principle of conferred powers must be respected in both the internal action and
the international action of the Community.40 This principle is reiterated a
number of times in the TEU and TFEU, as for example in Article 5 TEU:
Under the principle of conferral, the Union shall act only within the limits
of the competences conferred upon it by the Member States in the Treaties
to attain the objectives set out therein. Competences not conferred upon the
Union in the Treaties remain with the Member States.41 This does not mean
that the Unions external powers are limited to those policy fields where
external competence is expressly mentioned in the Treaties, such as
commercial policy or development policy. Powers may also be implied: the
Court has held that whenever Community law has created for the institutions of the Community powers within its internal system for the purpose of
attaining a specific objective, the Community had authority to enter into the
international commitments necessary for the attainment of that objective
even in the absence of an express provision in that connection.42 The TFEU
39
Under Art 275 TFEU the Court has jurisdiction to monitor compliance with
Article 40 TEU and to review the legality of Union acts providing for restrictive measures
against natural or legal persons, adopted by the Council on the basis of CFSP powers.
40
Opinion 2/94 para 24.
41
Art 5(2) TEU; see also Art 4(1) TEU and Art 7 TFEU and Declaration 18.
42
Opinion 2/91 [1993] ECR I-1061, para 7; Opinion 2/94 [1996] ECR I-1759,
para 26.
67
incorporates a version of this principle in a provision conferring a broad

treaty-making power on the Union:
The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an
agreement is necessary in order to achieve, within the framework of the Unions
policies, one of the objectives referred to in the Treaties, or is provided for in a
legally binding Union act or is likely to affect common rules or alter their scope.43
In addition, Article 352 TFEU provides a legal basis for Union action which is
necessary, within the framework of the policies defined in the Treaties, to
attain one of the objectives set out in the Treaties where the Treaties have not
provided the necessary powers.44 Despite the breadth of these provisions, they
should not be used in order to override the principle of conferred powers:
That provision [Article 235 EC, now as amended Article 352 TFEU], being an integral part of an institutional system based on the principle of conferred powers,
cannot serve as a basis for widening the scope of Community powers beyond the
general framework created by the provisions of the Treaty as a whole and, in particular, by those that define the tasks and the activities of the Community. On any
view, Article 235 cannot be used as a basis for the adoption of provisions whose
effect would, in substance, be to amend the Treaty without following the procedure
which it provides for that purpose.45
The principle of conferral governs the limits of Union competence; the exercise of that competence is governed by the principles of subsidiarity and
proportionality, which guide the decision as to whether a matter may be better
dealt with by the Union or by the Member States, as well as linking the form
and content of Union action to what is necessary to achieve the Unions objectives.46 These principles are designed to ensure that where the Union and its
Member States share competence, the decision as to whether the EU should
act should be based on logical principle based on effectiveness in achieving its
objectives. They apply to EU external as well as internal action, although in
the former context they are not often explicitly referred to. Policy statements
concerning the external dimension of the Area of Freedom, Security and
43
Article 216(1) TFEU. For an analysis and critique of this provision see
Cremona, M., Defining Competence in EU External Relations: Lessons from the
Treaty Reform Process in Dashwood, A. and Maresceau, M. (eds), Law and Practice
of EU External Relations: Salient Features of a Changing Landscape (Cambridge:
Cambridge University Press, 2008).
44
This provision may not be used to achieve CFSP objectives: Art 352(4)
TFEU.
45
Opinion 2/94 [1996] ECR I-1759, para. 30.
46
Art 5(3) and (4) TEU.
68
Justice, for example, refer to the need to show that Union external action offers
added value as compared to Member State action.47 Indeed, since where
Union external powers are implied this is based on an assessment of the necessity for Union action in order to achieve the Treaties objectives,48 in such
cases subsidiarity may be said to be built into the criteria for determining the
existence of Union competence.
Once the Union has acted, how does this affect the delimitation of powers
between the Union and the Member States? 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, is an example of a delimitation rule designed to ensure coherence.49 Recent case law has emphasized a
rationale for pre-emption based on the need to ensure a uniform and consistent application of the Community rules and the proper functioning of the
system which they establish in order to preserve the full effectiveness of
Community law.50 The TFEU envisages shared competence as normally preemptive; in such cases, the Member States shall exercise their competence to
the extent that the Union has not exercised its competence.51 This will apply
to external action in fields such as environment, energy, social policy and the
area of freedom, security and justice. The Court of Justice has not yet had an
opportunity to interpret this provision; it is at least potentially capable of
extending the scope of pre-emption since it refers simply to the exercise of
competence. Earlier case law which developed the concept of pre-emption has
insisted on the need to examine in each case the nature of the Union rules at
stake in order to determine whether they would be affected by Member State
action.52 The TFEU rule is a simpler delimitation rule; the Court, although it
47
Most recently see the Stockholm Programme adopted by the European
Council 1112 December 2009, Council doc. 17024/09 at page 76: Building on the
Strategy for Justice, Home Affairs and External Relations adopted in 2005 EU external cooperation should focus on areas where EU activity provides added value
48
See note 42.
49
Case 22/70 Commission v. Council (AETR) [1971] ECR 263.
50
Opinion 1/2003 [2006] ECR I-1145, para 128; in this case the Court held that
the Community had exclusive competence to conclude the revised Lugano Convention
on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
51
Art 2(2) TFEU. Note Protocol No. 25 whose sole article reads With reference
to Article 2 of the Treaty on the Functioning of the European Union on shared competence, when the Union has taken action in a certain area, the scope of this exercise of
competence only covers those elements governed by the Union act in question and
therefore does not cover the whole area.
52
Opinion 2/91 (ILO Convention No. 170) [1993] ECR I-1061, para 18;
Opinion 1/2003 [2006] ECR I-1145, paras 124-6 and 133.
69
explicitly rejected the idea that conflict between norms was necessary for preemption to apply,53 nevertheless required a content-based assessment of the
potentially overlapping norms in order to determine whether such an overlap
should be prevented.
Although the TFEU envisages that shared competence is normally subject
to pre-emption, certain shared external competences are specifically defined in
the TFEU as non-premptive: In the areas of development cooperation and
humanitarian aid, the Union shall have competence to carry out activities and
conduct a common policy; however, the exercise of that competence shall not
result in Member States being prevented from exercising theirs.54 The TFEU
does not include the CFSP in this provision, but it can be argued that the Treaty
does not categorize the CFSP as shared competence (although it is difficult to
see what it is if not shared) and therefore not pre-emptive by default.55
Certainly Declarations 13 and 14 on the CFSP attached to the Treaty of
Lisbon, confirm the view based on the nature of the CFSP under the preLisbon Treaty on European Union that pre-emption does not apply.
One further application of a delimitation rule should be mentioned: the
jurisdiction of courts. The Court of Justice regards it as essential to the
integrity of the Union legal order that only the EU Courts should be entitled to
determine the scope of Union law.56 National courts are not empowered to
review the legality of secondary Union law;57 international agreements
concluded by the Union must be interpreted (as far as their effects within the
Union are concerned) by the Court of Justice, and this includes their ability to
create legal effects within the national legal order;58 disputes between Member
States which raise questions over the proper application of Union law should
not be referred to external dispute settlement.59 Advocate General Tizzano has
53
54
Opinion 1/2003, note 51, para 129.

Art 4(4) TFEU. Note also that under Art 2(5), where Union competence is to
support, coordinate or supplement Member State action, as for example in the fields
of health, culture and education, Union action will not supersede Member State
competence; this would apply also to external action in these fields.
55
Art 2 of the TFEU lists the different categories of Union competence, including exclusive, shared, the competence in specific fields to support, coordinate or
supplement the actions of the Member States, and (in a separate paragraph) the competence to define and implement the CFSP; the CFSP is thus differentiated from the other
categories. It is only in relation to shared competence that pre-emption is mentioned
(Art 2(2) TFEU).
56
Opinion 1/91 (First EEA Opinion) [1991] ECR 6079.
57
Case 314/85 Foto-Frost [1987] ECR 4199.
58
Case 104/81 Hauptzollampt Mainz v Kupferberg [1982] ECR 3641; C-431/05
Merck Genricos v Merck & Co. Inc. and Merck Sharp & Dohme Lda [2007] ECR I-7001.
59
Art 344 TFEU; C-459/03 Commission v Ireland (Mox Plant) [2006] ECR I4635.
70
explained the need for a uniform interpretation of all Union agreements (even
mixed agreements where competence is shared between the Union and the
Member States) in terms of the duty of cooperation: the interpretation the
Court is called upon to give represents its contribution to the fulfilment of the
duty of cooperation between institutions and Member States.60 It is a necessary foundation for the unity of Union external action in which the courts have
a part to play:
The Community legal system is characterised by the simultaneous application of
provisions of various origins, international, Community and national; but it nevertheless seeks to function and to represent itself to the outside world as a unified
system. That is, one might say, the inherent nature of the system which, while guaranteeing the maintenance of the realities of States and of individual interests of all
kinds, also seeks to achieve a unified modus operandi. Its steadfast adherence to that
aim, which the Court itself has described as an obligation of solidarity, is certainly
lent considerable weight by the judicial review mechanism which is defined in the
Treaty and relies on the simultaneous support of the Community court and the
national courts.61
The duty of cooperation referred to by AG Tizzano and here used to justify a

wide interpretative jurisdiction of the Court of Justice over mixed agreements,
is in fact the basis for the third level of coherence. Mixed agreements are a
context in which coordination and complementarity are essential since not
only do they involve joint Union and Member State participation, they concern
legal obligations towards third countries and thus the potential for international responsibility.
Coherence as Complementarity
Complementarity implies that the action of the Union and of the Member
States may overlap. If the Union acts in a field of non-pre-emptive shared
competence, such as development cooperation, the need for coherence
clearly emerges and is recognized in the Treaty; Union and Member States
policies on development cooperation, for example, are to be complementary
to one another, and the Union and Member States are to coordinate their
policies on development cooperation.62 Similar references to complementar-
60
Case C-53/96 Hermes International v FHT Marketing [1998] ECR I-3603,
opinion of AG Tizzano, para 21. See also Case C-431/05 Merck Genricos v Merck &
Co. Inc. and Merck Sharp & Dohme Lda [2007] ECR I-7001, paras 31-38.
61
Case C-53/96 Hermes International v FHT Marketing [1998] ECR I-3603,
opinion of AG Tizzano, para 21.
62
Arts 208(1) and 210(1) TFEU.
71
ity are found in the provisions on economic and financial cooperation with
third countries,63 and humanitarian aid.64
More generally, the duty of cooperation (or principle of sincere cooperation, as the TEU now calls it) requires the Member States, when exercising
their own competence, to actively support the Unions external policy, to
enhance their mutual political solidarity and to refrain from any action
which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations (Article 24(3) TEU) or
which could jeopardise the attainment of the Unions objectives (Article 4(3)
TEU). The Court of Justice has applied this principle in particular to the negotiation and implementation of international agreements concluded by the
Union and Member States jointly (mixed agreements). In Opinion 2/91, for
example, it held:
when it appears that the subject-matter of an agreement or contract falls in part
within the competence of the Community and in part within that of the Member
States, it is important to ensure that there is a close association between the institutions of the Community and the Member States both in the process of negotiation
and conclusion and in the fulfilment of the obligations entered into. This duty of
cooperation results from the requirement of unity in the international representation of the Community.65
These are obligations which not only concern the Member States implementation of EU policy but which also constrain the ways in which they may exercise their own competence, ensuring that they do not thereby obstruct EU
objectives. So, for example, Germany and Luxembourg were found to be in
breach of their obligations under Article 10 EC (now Article 4(3) TEU) by
concluding bilateral agreements with third countries on the transport of goods
and passengers by inland waterway.66 The bilateral agreements were
concluded after a decision by the Council to authorize the Commission to
negotiate a multilateral agreement with a number of third countries. Although
EC competence in the field was not exclusive, the Court held that the Member
States were in breach of Article 10 EC (that duty of genuine cooperation67)
by continuing bilateral negotiations after the mandate had been agreed in the
Council, without cooperating with or consulting the Commission:
63
64
Art 212(1) TFEU.

Art 214(1) and (6) TFEU; it is worth noting that in the context of humanitarian aid, coordination with international organizations and agencies, in particular those
within the UN system, is also emphasized: Art 214(7) TFEU.
65
Opinion 2/91, note 51, para 36.
66
Case C-266/03 Commission v Luxembourg [2005] ECR I-04805; Case C433/03 Commission v Germany [2005] ECR I-6985.
67
C-266/03 Commission v Luxembourg, note 65, para 58.
72

The adoption of a decision authorising the Commission to negotiate a multilateral
agreement on behalf of the Community marks the start of a concerted Community
action at international level and requires, for that purpose, if not a duty of abstention on the part of the Member States, at the very least a duty of close cooperation
between the latter and the Community institutions in order to facilitate the achievement of the Community tasks and to ensure the coherence and consistency of the
action and its international representation.68
Here we see the Court of Justice expressly framing the Member States duty
of cooperation in terms of coherence and consistency of EU external action.
The duty is cast in procedural terms (notification of and cooperation with the
Commission) affecting how the Member States competence is exercised, and
is to be distinguished from both exclusivity and pre-emption, where the
Member State is prevented from acting at all (the distinction between delimitation of competence and the duty of cooperation in exercising that competence). The distinction is important, but the line can be a thin one. In
Commission v Sweden, for example, Advocate General Maduro argued that the
obligations imposed on Sweden under Article 10 EC (now Article 4(3) TEU)
in connection with participation in a mixed environmental agreement (the
Stockholm Convention on Persistent Organic Pollutants, or POPs) did not
require a complete abstention from unilateral action.69 Action in the field of
environmental protection is a matter of shared competence and in this case the
conclusion of the agreement by the Community did not pre-empt further
Member State action. However, The implications of the duty of loyal cooperation do not end with the analysis of whether it was possible for Sweden to
exercise its competence; the manner in which it did so is equally, if not more,
important.70 The duty of cooperation, as we have already seen, implies a duty
to inform and consult, and If fulfilling that duty triggers a Community decision-making process, or is integrated in an ongoing process, the consequence
68
Ibid, para 60. See further on the duty of cooperation in the EC context,
Hillion, op.cit. note 14; see also Cremona, Defending the Community Interest: the
Duties of Cooperation and Compliance; and on the extent of the Member States
loyalty obligation within the framework of the CFSP, Hillion, C. and Wessel, R. A.,
Restraining External Competences of EU Member States under CFSP, both in
Cremona, M. and de Witte, B. (eds), EU Foreign Relations Law: Constitutional
Fundamentals (Oxford: Hart Publishing, 2008).
69
Case C-246/07 Commission v Sweden, judgment 20 April 2010. The
Commission argued that by unilaterally proposing to include a particular substance
(PFOS) in Annex A to the Stockholm Convention on Persistent Organic Pollutants in
the absence of Community agreement to do so, Sweden was in breach of its obligations
under Article 10 EC (now Article 4(3) TEU).
70
Case C-246/07 Commission v Sweden, opinion of AG Poiares Maduro, 1
October 2009, para 46.
73
must be that the Member State should engage fully and in good faith in such
process, if necessary refraining from taking individual action, at least for a
reasonable period of time, until the completion of that process.71 The Court
drew similar conclusions, basing itself on the cases against Luxembourg and
Germany already mentioned where there was a concerted Community
action.72 It held that it was not necessary for a Union common position to take
a specific form in order for it to give rise to the duty of cooperation; it is
enough that its content can be established to the requisite legal standard.73
Here, the Court found, there was in fact a common strategy in place from
which Sweden had disassociated itself by its unilateral action. The breach of
the duty of cooperation did not lie solely in this departure, but also in the fact
that its action affected the position of the Union as a result of the voting
arrangements under the Stockholm Convention for the Community and its
Member States: Such a situation is likely to compromise the principle of unity
in the international representation of the Union and its Member States and
weaken their negotiating power with regard to the other parties to the
Convention concerned.74
This case makes the point very clearly that the need for coherence in fields
of shared competence, the need for a unified international presence, gives rise
via Article 4(3) TEU to specific legal obligations on the Member States, not
only to cooperate but also in some cases to refrain from acting. It is also worth
mentioning that the Advocate General drew attention to the risk that a Member
State would use its external powers to bypass EU decision-making procedures
and interfere with the internal balance of power in that process.75 This point,
which is related to horizontal coherence, reminds us that the Member States
play a dual role here: on the one hand they form part, through the Council and
its Working Groups, of the EUs decision-making machinery; on the other
hand they have their own autonomous foreign policy agendas. The useful
distinction between vertical and horizontal coherence should not obscure the
fact that Member State behaviour may simultaneously raise issues for both of
these dimensions.
It is perhaps within the CFSP that coherence between the Member States
individual foreign policy agendas and the common policy developed by the
71
Ibid., paras 4849. The AG did recognize the need to avoid paralysis
(Member States must not be caught in a never-ending process, in which a final decision by the Community is postponed to the point of inaction).
72
See note 65 above. Case C-246/07 Commission v Sweden, judgment 20 April
2010.
73
Ibid., para 77.
74
Ibid., para 104.
75
Case C-246/07 Commission v Sweden, opinion of AG Poiares Maduro, 1
October 2009, para 56.
74
Union is likely to pose particular difficulties of coordination and complementarity. The CFSP is to be put into effect by the High Representative and by the
Member States, using national and Union resources.76 By its nature, then, the
CFSP is designed to be a cooperative enterprise and the role of the Member
States is not simply to avoid creating obstacles to Union policy but actively to
put it into effect alongside Union institutions and actors. Here the emphasis
has been on exhortation and institutional mechanisms for coordination, since
the exclusion of the Courts jurisdiction has precluded judicial elucidation of
the implications of the legally binding loyalty clause. Nevertheless the emphasis in the Treaty on solidarity and coordination in the CFSP is striking and is
in many cases phrased in terms of clear legal obligation. Apart from the
general loyalty obligation in Article 4(3) TEU, which also applies to the CFSP,
there is a reiteration in the CFSP chapter itself. Article 24(2) TEU emphasizes
that the CFSP is to be based on mutual political solidarity, the identification
of the general interest, and an ever-increasing degree of convergence in
national policies. Article 24(3) TEU then links the loyalty obligation both to
mutual solidarity between Member States and to the effectiveness and cohesion of Union foreign policy, thus adding a dimension to the emphasis in
Article 4(3) TEU on achieving the Unions tasks and objectives:
The Member States shall support the Unions external and security policy actively
and unreservedly in a spirit of loyalty and mutual solidarity and shall comply with
the Unions action in this area. The Member States shall work together to enhance
and develop their mutual political solidarity. They shall refrain from any action
which is contrary to the interests of the Union or likely to impair its effectiveness
as a cohesive force in international relations.
This general provision, with its express reference to the Unions cohesive
force, is then followed by two types of more specific provision. First, those
that emphasize the binding nature of CFSP decisions, whether establishing
common positions77 or joint actions.78 These include provision for prior
consultation before taking national positions or actions that impinge on EU
joint actions79 and the provision of information to the Council where a
76
77
Art 26(3) TEU.

Art 29 TEU provides that Member States shall ensure national policies
conform to Union common positions.
78
According to Art 28(2) TEU, decisions mandating operational action shall
commit the Member States in the positions they adopt and in the conduct of their activity.
79
Under Art 28(3) TEU, Whenever there is any plan to adopt a national position or take national action pursuant to a decision [establishing operational action],
information shall be provided by the Member State concerned in time to allow, if
necessary, for prior consultations within the Council.
75
Member State takes unilateral action as a matter of urgency.80 Second are

provisions requiring coordination between the Member States, the formation
of a common approach on matters of general interest and the upholding of the
Unions positions in international organisations.81 Article 32 TEU is striking
for its generality of scope and its explicit references to the Union interest:
Member States shall consult one another within the European Council and the
Council on any matter of foreign and security policy of general interest in order to
determine a common approach. Before undertaking any action on the international
scene or entering into any commitment which could affect the Unions interests,
each Member State shall consult the others within the European Council or the
Council. Member States shall ensure, through the convergence of their actions, that
the Union is able to assert its interests and values on the international scene.
Member States shall show mutual solidarity.82
Once a common approach has been defined, Union and Member State action
is coordinated by the High Representative and Member State Foreign
Ministers within the Foreign Affairs Council; Union delegations and Member
State diplomatic missions are to cooperate in its implementation;83 EU Special
Representatives may be appointed.84 Coordination within international organizations, including the UN Security Council organized by the High
Representative and defence of the positions and interests of the Union by the
Member States, is required by Article 34 TEU.85
The picture created by these provisions of smooth coordination
between Union and Member State institutions to ensure the discussion,
adoption and implementation of common approaches, positions and operational action does not, of course, always correspond to reality. What is of
interest here is first, the extent to which these obligations, although not
directly enforceable by the European Court of Justice, are couched in binding terms; and second, the extent to which these frameworks encourage the
development of shared objectives and shared interests. This dimension of
coherence, which is of importance not only within the CFSP but across the
80
81
82
Art 28(4) TEU.

Arts 3235 TEU.
As Duke points out in his chapter in this volume, identifying what falls within
the general interest may not be easy, and may in fact lead to a circular process
whereby only those matters on which it is possible to adopt a common approach are
deemed to be in the general interest.
83
Art 32(2) and (3) TEU.
84
Art 33 TEU.
85
Where a Union position has been defined, Member States who are members
of the UN Security Council are required by Art 34(2) TEU to request that the High
Representative be invited to present the Unions position.
76
whole field of EU external action, is discussed by Simon Duke in his chapter in this volume. Here I will only point to the growing use of joint statements and declarations of joint strategy by the Union institutions and
Member States, a prime example being the European Consensus on
Development jointly agreed in November 2005 by the Council, the representatives of the governments of the Member States meeting within the
Council, the European Commission and the European Parliament.86
IV
HORIZONTAL COHERENCE
Horizontal coherence is the term used to refer to inter-policy and inter-pillar

coherence. As with vertical coherence, the concept includes rules concerning consistency and conflict-avoidance, the delimitation of powers and
complementarity. The rules and principles governing the relationship
between policies may relate to norms and objectives, to instruments and to
actors. Until recently, an important aspect of policy coherence was the relationship between the pillars: between external action falling within EC
competence and the CFSP or the external dimension of the third pillar.
With the entry into force of the Treaty of Lisbon the formal division between
the pillars has disappeared but important distinctions between these policy
areas, and especially between the CFSP and other policies, remain, especially in terms of the roles of the different institutions. We need to consider
whether the remaining distinctions between the CFSP and other external
policy fields still require a different kind of separation than that which
applies between other external policy legal bases: to what extent does the
shadow of the pillars still remain?87 Although it may seem as though policy
coherence is primarily a matter of institutional design and political will, in
fact it is underpinned by a number of legal rules, and we can trace some of
the problems with achieving policy coherence to the interaction between
different rules operating at different levels of coherence.
86
87
Council doc. 14820/05.

See further within this section Coherence as Delimitation below. Nuttall
designates inter-pillar coherence as institutional coherence (or consistency), thereby
emphasizing the different institutional structures of the pillars rather than their different legal nature; see Nuttall, S., Coherence and Consistency in Hill, C. and Smith, M.,
eds, International Relations and the EU, OUP 2005, chapter 5. See also Schmalz, U.,
The Amsterdam Provisions on External Coherence: Bridging the Unions Foreign
Policy Dualism? (1998) 3 European Foreign Affairs Rev. 421.
77
Coherence as Consistency
Article 21 TEU establishes that all external policies CFSP and non-CFSP
share a single set of principles and objectives and it is in this context that
consistency is enjoined:
The Union shall respect the principles and pursue the objectives set out in paragraphs 1 and 2 in the development and implementation of the different areas of the
Unions external action covered by this Title and by Part Five of the Treaty on the
Functioning of the European Union, and of the external aspects of its other policies.
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.
Specific provisions within the different external policy fields (the CFSP, the
common commercial policy, development cooperation, cooperation with nondeveloping third countries, humanitarian aid) reiterate that these policies must
be carried out within the framework of these general principles and objectives. The reference in Article 21(3) TFEU to the external aspects of other
policies makes it clear that policy consistency applies to implied powers as
much as to express external competences. In addition, the provision requires
consistency not only between all external policies but also between external
policies and the Unions other (internal) policies.
Consistency, then, is based on establishing unified objectives which should
in principle avoid contradiction. However these objectives are so broadly
drafted that in practice they may act as the framework for actions which are
inconsistent at a more specific or detailed level. It is here that hierarchy or
priority rules might come into play. The EU Treaties do not in general establish a hierarchy between different external policies, preferring an approach
based more on complementarity than on hierarchy: the need to take into
account other policy objectives. But despite its general absence, certain provisions do introduce an element of policy hierarchy. First, a certain priority is
given to internal policy objectives. Article 207(3) TFEU requires that agreements negotiated within the framework of the common commercial policy, as
well as taking into account the general principles and objectives of the Unions
external action, shall be compatible with internal Union policies and rules.
Further, given the logic of implied powers, an implied external power will be
designed to serve the objectives of the internal power, this being reflected in
Article 216(1) TFEU.88
88
See text at note 43 above.
78
Second, Article 212(1) TFEU provides that economic, financial and technical cooperation measures with third countries other than developing countries shall be conducted without prejudice to the other provisions of the
Treaties and in particular Articles 208 to 211 (that is, the provisions relating
to development cooperation), and shall be consistent with the development
policy of the Union. These two phrases refer to different aspects of coherence.
The Court of Justice has construed the without prejudice clause as a delimitation rule affirming the specificity of the lex specialis development cooperation legal basis as against the more general cooperation legal basis: Article 212
[ex-Article 181a EC] is not intended to constitute the legal basis for measures
pursuing the objectives of development cooperation.89 The consistency
clause, on the other hand, does not concern the allocation of competence; it
does not (as the Commission had argued in the same case) imply that the
Union may adopt measures relating to developing countries on the basis of
Article 212 as long as they are consistent with development objectives, but
rather means simply that, when adopting measures on the basis of Article 212,
the Union must ensure that consistency is maintained with what has been
decided on the basis of the development cooperation provisions.90
It has already been pointed out that consistency concerns not only objectives but also instruments, and it is here that clearer rules of hierarchy apply,
which depend on the source of the instrument: primary EU law (the Treaties,
general principles of law and fundamental human rights91), international
agreements binding the Union, and secondary law. Both primary EU law and
international agreements binding the Union will prevail over secondary legislation. The Court of Justice may annul acts of the institutions on the grounds
of infringement of the Treaties.92 International agreements concluded by the
Union are binding on the Member States as well as the institutions,93 and
89
Case C-155/07 European Parliament v Council, [2008] ECR I-08103, para

47. The position under the EC Treaty, which was the subject of this case, was complicated by the fact that Article 179 EC also contained a without prejudice proviso;
however Article 179 referred in general terms to the other provisions of this Treaty,
whereas Article 181a included a specific reference to development cooperation; on this
basis the Court held that the proviso in Article 181a applied with priority (Ibid. at para
45). The Lisbon Treaty removed the former, leaving only the more specific proviso in
Article 212 TFEU.
90
Case C-155/07 European Parliament v Council, [2008] ECR I-08103, para
46.
91
Fundamental human rights are included among the general principles of law
(Article 6(3) TEU), but they are also contained in the Charter of Fundamental Rights
which, according to Article 6(1) TEU, has the same legal value as the Treaties.
92
Article 263 TFEU.
93
Article 216(2) TFEU.
79
according to the Court of Justice they become an integral part of the Union
legal order.94 The fact that Union agreements are binding on the Union institutions means that those agreements prevail over provisions of secondary
[Union] legislation,95 and so in judging the legality of Union secondary legislation the Court may assess its conformity with binding provisions in Union
agreements.96
In some limited cases, the Union has been held to be bound by international
agreements to which it is not a formal party on the ground that the Member
States had transferred those obligations to the Union alongside competence in
the relevant field.97 In a few other cases, the Treaties themselves require the
Union to comply with international obligations of the Member States. Article
6(3) TEU requires the Union to respect fundamental rights as guaranteed by
the European Convention for the Protection of Human Rights and
Fundamental Freedoms [which] shall constitute general principles of the
Unions law, thus giving this Convention a special status in Union law.
Article 78(1) TFEU (ex-Article 63(1) EC) requires the Council, in adopting
measures on asylum, to act in accordance with the Geneva Convention of 28
July 1951 and Protocol of 31 January 1967 relating to the status of refugees
and other relevant treaties. Article 208(2) TFEU (ex-Article 177(3) EC)
requires the Union and Member States in their policy on development cooperation to comply with the commitments and take account of the objectives they
have approved in the context of the United Nations and other competent international organisations.
The hierarchy between international agreements (and indeed international
legal obligations in general) and primary Community law is not so clearly
established in the Treaties and it has been for the Court of Justice to expand on
such provisions as there are. As far as international treaty obligations of the
Union are concerned it can be argued that Article 218(11) TFEU (ex-Article
300(6) EC), by providing that a proposed treaty which is incompatible with the
EU Treaties may not enter into force unless it is amended or the Treaties are
revised, implies that, in the absence of such amendment, the institutional decision concluding an incompatible agreement is invalid.98 The institutions may
94
95
Case 181/73 Haegeman [1974] ECR 449.

Case C-344/04 R v Department of Transport ex parte IATA, [2006] ECR I00403, at para 35; see also case C-61/94 Commission v Germany [1996] ECR I-3989
at para 52.
96
Case C-344/04 R v Department of Transport ex parte IATA, note 94, at para
35. We will not here enter into a detailed discussion of coherence as it applies between
international legal norms and the exercise of internal competence by the EU.
97
Cases 2224/72 International Fruit Company [1972] ECR 1219, with respect
to the GATT.
98
In Case C-122/95 Germany v Council [1998] ECR I973, for example, the
80
not validly, in terms of Union law, enter into international obligations which
conflict with primary law and thus such agreements, following Article 218(11)
TFEU, would not become part of the Union legal order. This would suggest
that the EU Treaties should prevail over conflicting provisions of international
agreements. The Court of Justice in Kadi agreed.99 Thus, since the Unions
international agreements bind the institutions, they will take priority over the
secondary law made by those institutions. However, insofar as EU agreements
are part of the EU legal order by virtue of an action of an institution (the
concluding act of the Council), EU primary law will take priority within the
EU legal order over those agreements.
Let us return, in the light of this discussion of the hierarchy between different
instruments forming part of the EU legal order, to the provision already
mentioned whereby the Council and Commission are required to ensure that
international agreements negotiated under the common commercial policy are
compatible with internal Union policies and rules (Article 207(3) TFEU).
This is clearly intended to avoid conflict, but a number of questions arise.
Were a conflict in fact to occur how should this provision be read in the light
of the general priority given to international agreements over secondary law?
It could be read as an injunction to maintain consistent objectives without
establishing a priority rule a reading supported by the ambiguity of the
concept of internal policies as a legal category to be afforded priority but
the peremptory wording and the reference to compatibility suggest otherwise.
Might the provision mean that the Union may not negotiate commercial policy
agreements which would require for their implementation an amendment of
secondary legislation? This is implausible. More plausible is to interpret the
provision as, on the contrary, requiring the Commission and Council to ensure
compatibility by bringing secondary legislation into line with agreements
negotiated under the CCP, which would merely be an awkward restatement of
Court declared the Council decision concluding the Framework Agreement on Bananas
invalid in so far as certain aspects of the Agreement were contrary to the fundamental
Community law principle of non-discrimination. Note that it is the decision concluding the agreement that is declared invalid; the validity in international law of the agreement itself is not affected.
99
Joined Cases C-402/05P and C-415/05P Yassin Abdullah Kadi and Al
Barakaat International Foundation v Council and Commission, [2008] ECR I-06351,
paras 306308. The Court of Justice in Kadi left open the question whether the international obligation in question in that case a United Nations Security Council
Resolution was binding on the Union, which is not a member of the UN. In contrast
the CFI in the same case had held that UN Security Council Resolutions are not only
binding on the EC but also take precedence over Community primary law: case T315/01 Kadi v Council and Commission [2005] ECR II-3649.
81
Article 216(2) TFEU. There are difficulties here too, however: the wording does
not suggest that conflicts should be resolved in this direction;100 there is no
reason why the CCP should be singled out for a restatement of the need to implement international agreements; and (most important) the Council and
Commission do not represent the Unions legislature. Alternatively, the provision could be read as referring to internal Union policies and rules as contained
in primary but not secondary Union law. Although nothing in the wording
suggests this limitation and internal rules is perhaps more apt to describe
secondary legislation, this interpretation does at least reflect the Unions normal
rules of hierarchy and does not contradict Article 218(11) TFEU.
The CFSP chapter of the TEU also introduces a notion of hierarchy
between different forms of binding act. In particular, the Council is to take
decisions to define and implement the CFSP on the basis of the general guidelines and strategic lines defined by the European Council, which suggests that
these Council decisions should at least be consistent with the European
Councils strategic decisions.101 But there is no formal hierarchy established
and of course the Court of Justice has no jurisdiction in such cases.102
Finally, a brief mention should be made of the rules of hierarchy between
secondary instruments, as for example the power to enact delegated or implementing legislation granted by a legislative instrument. The limits on the
Commissions implementing powers under a Regulation on financial and technical assistance are a case in point; although drawn widely, the Commissions
implementing powers were held to be limited by the essential general aims
of the legislative act granting those powers.103 In this particular case, all were
agreed that the Regulation in question was outdated in terms of its objectives
and the view of development it contained was no longer reflected even in the
primary Treaty rules; it was about to be replaced. Nevertheless, implementing
powers, however wide, are tied to a specific legislative base and so may not
be able to keep up with an evolving policy. Consistency between the
Commissions implementing decision and the enabling Regulation was
ensured, but at the price of a failure of policy coherence at a broader level
since the Commissions act was adopted in accordance with current Union
policy and it had acted at the invitation of the Council.104
100
Compare the wording of Article 218(11) TFEU, cited above, which refers to
the compatibility of international agreements with primary law.
101
Article 26(2) TEU.
102
Article 275 TFEU.
103
C-403/05 European Parliament v Commission (Philippines border project)
[2007] ECR I-9045, para 51, citing inter alia Case C-159/96 Portugal v Commission
[1998] ECR I-7379, paras 4041.
104
Council conclusions on European Union external action against terrorism, 22
82
Coherence as Delimitation
These questions concerning the hierarchy between legal acts bring to the fore
the relationship between the institutions. The principle of institutional balance
that is, maintaining proper relations between the institutions is an important aspect of coherence. It finds its basis in Article 13(2) TEU which provides
that each EU institution must act within the limits of its powers and finds its
expression in rules relating to the limits of implementing and delegated
powers, choice of legal basis, procedural rules for the conclusion of international agreements and in inter-institutional agreements. Coherence requires
allocation and delimitation rules that are transparent and unambiguous, so that
it is clear, for example, when an act requires the European Parliament to act as
a co-legislator, or under what procedural conditions the Commission may
exercise implementing powers.
It is clear that the line between policy making and policy implementation is
not always easy to draw, especially in a policy field with limited Treatydefined objectives in which the legislature has scope for the exercise of a
broad discretion. Under Article 291 TFEU (ex-Article 202 EC) implementing
powers may be granted to the Commission (or in specific cases to the Council)
by legally binding Union acts.105 How wide may these implementing powers
be and what principles exist for determining their scope? There are two aspects
to this question. First, the limits on the power of the legislature to establish in
a parent act such as a Regulation a power to draw up implementing rules. If
drawn too widely the establishment of a subsidiary implementation procedure
risks undermining the decision-making procedure laid down by the Treaty for
the particular subject matter.106 Second, the limits on the specific use by an
institution of general implementing powers. Thus, according to the Courts
case law on implementing powers, the essential elements of a policy must be
laid down in legislation adopted according to the legislative procedure established in the Treaty; they should not be left to be defined by the implementing
acts themselves; implementing powers should then be exercised within the
limits set by those essential elements or policy aims.107 The TFEU also limits
July 2002; European Council Declaration of 25 March 2004 on Combating Terrorism,
para 12.
105
Legally binding acts are regulations, directives and decisions (Article 288
TFEU).
106
Normally implementing powers are given to the Commission, subject to
procedural requirements such as provided by the comitology decision (Council
Decision 1999/468/EC, OJ 1999 L 184, p. 23, as amended by Council Decision
2006/512/EC, OJ 2006 L 200, p. 11).
107
This case law is also reflected in Articles 2(2) and 5a of the current comitology Decision (Council Decision 1999/468/EC as amended by Decision 2006/512/EC)
83
the use of delegated powers with reference to the essential aims of a powerconferring act: under Article 290(1) TFEU a legislative act may delegate
powers to the Commission to adopt non-legislative acts to supplement or
amend certain non-essential elements of the legislative act.108 On the other
hand, The essential elements of an area shall be reserved for the legislative
act and accordingly shall not be the subject of a delegation of power. The
distinction between delegated and implementing acts is important, especially
in terms of the role of the European Parliament, but is not clearly defined by
the Treaty.109 Nor, more generally, is it always easy to determine what are the
essential elements of a piece of legislation, whether for the purpose of determining the scope of permissible implementation or in order to identify its
proper legal basis.110
Allocation of powers, as well as institutional balance, are reflected in the
principles developed by the Court of Justice governing choice of legal base,
which has been said by the Court to be a matter of constitutional significance111 and of importance to third countries as well as internally.112
Although the existence of an appropriate legal basis is necessary for the existence of competence under the principle of conferral, and has therefore here
been associated with vertical coherence,113 it also has its horizontal dimension. The choice of legal base is relevant in determining the type of act that
may be adopted and the procedures to be followed, for example the role of the
European Parliament and voting procedure in the Council. Judgments as to
legal basis are important in determining the relative scope of different policies
and how they inter-relate: to what extent, for example, may a trade measure
pursue environmental objectives and when might an additional (or alternative)
environmental legal basis be needed? In considering the proper legal base
which establishes a procedure the regulatory procedure with scrutiny - whereby

non-essential elements of an instrument adopted by co-decision may be amended.
108
Legislative acts are those legally binding acts which are adopted according to
the ordinary legislative procedure (co-decision) or a special legislative procedure
(Article 289(3) TFEU).
109
See Dougan, M., The Treaty of Lisbon 2007: Winning Minds, Not Hearts
(2008) 45 Common Market Law Rev. 617, pp. 648652.
110
See C-403/05 European Parliament v Commission (Philippines border
project), note 102 above.
111
The choice of the appropriate legal basis has constitutional significance.
Since the Community has conferred powers only, it must tie the Protocol to a Treaty
provision which empowers it to approve such a measure. To proceed on an incorrect
legal basis is therefore liable to invalidate the act concluding the agreement and so vitiate the Communitys consent to be bound by the agreement it has signed. Opinion
2/2000 (re Cartagena Protocol) [2001] ECR I-9713, para 5.
112
C-94/03 Commission v Council, [2006] ECR I-1, para 55.
113
See above in section III, Coherence as Delimitation.
84
(environmental protection, common commercial policy, or both) for the

conclusion of the Rotterdam Convention on the Prior Informed Consent
Procedure for certain hazardous chemicals and pesticides in international
trade, the Court of Justice held that the choice of the legal basis for a
Community measure, including one adopted with a view to conclusion of an
international agreement, must be based on objective factors which are
amenable to judicial review and include in particular the aim and content of
the measure 114 The Court has also held that in most cases a single legal
basis is to be preferred, with a joint legal basis only being used where it is
impossible to conclude that one or the other predominates in aim or content.115
This is not the place for a full discussion of legal basis as a constitutional
issue.116 Instead I will briefly discuss three issues: the need for a formal legal
basis for every binding act; the criteria for determining the legal basis of an
international agreement; and the changed relationship between the CFSP and
other Union policies as a result of the Treaty of Lisbon.
When is a formal legal basis needed? Or, when might an informal institutional arrangement be more conducive to coherent policy-making and effective negotiation than an allocation (choice of legal basis) rule? In a case
involving the Convention on International Trade in Endangered Species
(CITES),117 the Court considered the need for a statement of reasons, including a legal base, for a Council decision establishing a common position for the
Member States in a meeting of the Conference of the Parties (COP) on the
amendment of Convention Annexes listing protected species.118 The Court
took the view that any act designed to have binding legal effects, which may
therefore be the subject of an action for annulment, is subject to the obligation
to state reasons, and in particular its legal basis.119 This act was legally bind114
115
Case C-94/03 Commission v Council, [2006] ECR I-1, para 34.

Exceptionally, if it is established that the act simultaneously pursues a
number of objectives or has several components that are indissociably linked, without
one being secondary and indirect in relation to the other, such an act will have to be
founded on the various corresponding legal bases. C-411/06 Commission v European
Parliament v Council, judgment 8 September 2009, para 47.
116
See further Koutrakos, P., Legal Basis and Delimitation of Competence in
EU External Relations in Cremona, M. and de Witte, B. (eds), EU Foreign Relations
Law: Constitutional Fundamentals (Oxford: Hart Publishing, 2008).
117
Case C-370/07 Commission v Council, judgment 1 October 2009.
118
For the obligation to state the reasons on which a legal act is based, see Article
296 TFEU (ex-Article 253 EC). In this case the Commission had proposed a dual trade
and environment legal base; the Council adopted the decision with no stated legal base.
The Council argued that the decision envisaged in Article 300(2) EC (now Article
218(9) TFEU) is a different type of legal act from the decision referred to in Article
253 EC.
119
Case C-370/07 Commission v Council, judgment 1 October 2009, para 42.
85
ing; it followed that the contested decision must be reasoned and must therefore indicate the legal basis on which it is founded in order, in particular, that
the Court may be able to exercise its powers of review.120 The need for a legal
base was also derived from the principle of conferred powers (having only
conferred powers, the Community must tie the contested decision to a Treaty
provision which empowers it to approve such a measure121), the implications
of different legal bases for both institutional balance (preserving the prerogatives of the Community institutions concerned by the procedure for the adoption of a measure122) and the division of competence between the Union and
the Member States. Responding to a UK argument that a duty to state reasons
would seriously hamper the effectiveness of the Communitys participation in
bodies set up by international agreements and would be incompatible with the
flexibility needed in international negotiations, the Court repeated that the
principle of conferred powers requires a statement of reasons, while holding
that the degree of detail required may vary, the minimum being the need to cite
an explicit legal basis.123
The Court of Justice has been consistent in applying the same criteria for
determining the legal basis of an international agreement as for an internal
measure, based on aim and content and a centre of gravity test.124 It is worth
asking whether this approach needs adjustment in the context of an international agreement. In determining the aim, should the preamble of the concluding decision be the point of reference, or also the content of the agreement
itself? Should only the declared objectives be considered or also the agreements presumed effects?125 Is the bias against multiple legal bases appropriate given that the EUs international agreements often contain a wide range of
subject matter? To some extent the problems are alleviated by the existence of
several broad non-sectoral legal bases for concluding international agreements, not only the original association agreements (Article 217 TFEU), but
also now provision for general economic cooperation agreements (Article 212
TFEU) and neighbourhood agreements (Article 8 TEU). The choice between
an association agreement, an economic cooperation agreement and a neighbourhood agreement will surely be a political and not a legal one. Alongside
these, we now also have the general legal basis for treaty-making already
120
121
122
123
124
Ibid., para 45.

Ibid., para 47.
Ibid., para 48.
Ibid., para 52.
See for example, Case C94/03 Commission v Council (Rotterdam
Convention) [2006] ECR I1; Opinion 1/2008, 30 November 2009.
125
See for example Joined Cases C-317/04 and C-318/04 European Parliament
v Council (PNR) [2006] ECR I-4721, where the focus was on the aim as expressed in
the agreement itself rather than on its projected effects.
86
mentioned: Article 216(1) TFEU. This will presumably replace Article 352
TFEU (ex-Article 308 EC) as a legal basis where no alternative specific legal
basis exists, and would be used where external competence is implied from
internal powers. Choice of legal basis for cross-sectoral agreements (including
tradeenvironment, tradedevelopment) will remain an issue and even within
one policy field characterization of an agreement may be necessary: for example, the common commercial policy contains special provision for the conclusion of agreements in the fields of trade in cultural and audiovisual services
and trade in social, education and health services.126
However it is the relationship between the CFSP and other external policy
fields which has raised the most difficult questions and which has been
substantively changed by the Treaty of Lisbon. Under the pre-Lisbon regime,
ex-Article 47 TEU kept the EC and EU Treaties separate. In the Small Arms
and Light Weapons case, which concerned the choice between a CFSP and a
development cooperation legal basis, Advocate General Mengozzi argued that
Article 47 provided a watertight divide between the two Treaties in order to
protect what he called the primacy of action under the EC Treaty over action
taken under the second or third pillar, so that if an action could be undertaken
on the basis of the EC Treaty, it must be undertaken by virtue of that
Treaty.127 The Court of Justice adopted the same approach. It applied its
traditional aim and content analysis to the Council act in question in order to
determine its proper legal base; however, having decided that the measure in
question served both security and development objectives, it took the view that
Article 47 TEU did not permit a joint CFSP-EC legal basis so that in a case
where EC and CFSP objectives are equally important, the EC legal base alone
must be used.128 On this view, coherence between the pillars is achieved by
establishing a clear separation rule with allocation to Community competence
operating even where CFSP objectives are equally important; conflict is thus
avoided. The alternative to have interpreted ex-Article 47 TEU as a conflict
resolution rule so that overlapping action might be permitted, but in case of a
conflict, the Community measure would prevail would have been based on
consistency rather than allocation.
Although the Treaty of Lisbon maintains a degree of separation between the
CFSP and other external policies, the CFSP being subject to specific rules and
126
Article 207(4) TFEU. For an example of the difficulty of correctly categorizing a CCP agreement under the pre-Lisbon Treaty, see Opinion 1/2008, 30 November
2009.
127
C91/05 Commission v Council (SALW/ECOWAS) [2008] ECR I-3651, opinion of AG Mengozzi, para 116.
128
Case C-91/05 Commission v Council [2008] ECR I-3651, paras 757.
87
procedures,129 the Community priority rule found in ex-Article 47 TEU

which had led the Court in the Small Arms case to deny the possibility of a
joint TEU and EC legal basis, has disappeared. The CFSP provisions are found
in the TEU (as well as the legal basis for the Neighbourhood Policy) while
other aspects of EU external policy are found in the TFEU and the relationship
between the two Treaties is established in Article 1 TEU and Article 1 TFEU,
both of which proclaim the equal value of the two Treaties. The former Article
47 TEU has been replaced by Article 40 TEU, which provides not only that the
implementation of the CFSP shall not affect other Union competences, but
also that the exercise of those other competences shall not affect the CFSP.
The provision is drafted not in terms of Treaties but of competences, policies
and procedures, and at first sight it looks like a simple reaffirmation of the
principle that the appropriate legal base should be chosen for Union acts, in
line with the principle of institutional balance and respecting the powers and
prerogatives of the institutions and the limits to Union action set out in the
Treaty. But when one comes to ask on what basis a decision might be made in
a particular case as between CFSP and other competences what allocation
rule might be applied it becomes more difficult. The familiar tests of objectives and content are not so helpful. First, we have a single set of objectives
for all external action (Articles 3(5) and 21 TEU); second, the CFSP potentially encompasses all of foreign policy (Article 24(1) TEU). In the past, this
potential breadth of the CFSP was tempered by two things: first, a specific set
of CFSP objectives including such things as international peace and security
and second, ex-Article 47 TEU with its Community-priority rule. The first has
been subsumed into the Unions general external objectives none of which are
expressly linked to the CFSP, and the second has been amended so as to
remove the priority accorded to (former) Community competence.
Nevertheless it seems likely that the Court will continue to apply a form of
aim and content test based on a pre-Lisbon understanding of the scope of the
CFSP. Apart from security and defence, the CFSP will presumably include
those aspects of foreign policy which are not covered by other more specific
external legal bases such as commercial policy or TFEU policy objectives
such as environment, migration or energy. However it is easy to envisage
debate over the respective scope of the CFSP and (for example) Article 212
TFEU for democracy and rule of law promotion. Article 218 TFEU assumes
that agreements will be concluded which contain both CFSP and non-CFSP
elements, although it only refers explicitly to agreements relating exclusively
or principally to the CFSP, which are subject to specific procedural rules.
Following previous legal base case law, agreements which relate exclusively
129
Article 24(1) TEU.
88
or principally to non-CFSP policies would use the relevant non-CFSP legal

base(s). A merely incidental aim or component does not require a separate
legal basis.130 Less easy to predict is whether, where neither policy predominates or is merely incidental, the Court will take the view that Article 40 TEU
precludes, as did its predecessor, the use of joint CFSP and non-CFSP legal
bases for an autonomous measure or international agreement. In favour of at
least the possibility of a joint legal base is the fact that we are no longer dealing with separate legal orders, or legal acts of a wholly different nature (the
CFSP now uses decisions as defined in Article 288 TFEU), but merely different procedures and institutional roles. Whether or not the separation between
the CFSP and other policies is as watertight as it was, the need to allocate legal
acts to a specific legal base will remain, and coherence requires that the allocation is governed by clear rules applied to objective factors.
Whatever the case for clear allocation rules, it is significant that Article
13(2) TEU explicitly links the principle that the institutions must act within the
limits of their respective powers to the principle of mutual sincere cooperation in inter-institutional relations.131 The link is clearly demonstrated by the
PNR case.132 In challenging the validity of the Council decision concluding an
agreement with the USA on the exchange of air passenger data on the grounds
of an inadequate legal base and infringements of fundamental rights, the
European Parliament argued that the Council was in breach of the duty of
cooperation. The Council had adopted the decision concluding the agreement
after the Parliament had requested an Opinion from the Court of Justice under
Art 300(6) EC (now Article 218(11) TFEU) but before the Court had delivered
its Opinion. Once the agreement had been concluded, the request for the
Courts Opinion lost its purpose and the Parliament instead brought an action
for annulment of the Councils act.133 Although Advocate General Leger
dismissed the Parliaments argument on this point on the ground that the
Article 300(6) EC procedure does not have a suspensory effect and is not
designed to protect institutional rights and interests,134 it may be argued that a
dispute about legal base which impacts directly on competence is not merely
a question of the referring institutions interest but has a broader constitutional
130
C91/05 Commission v Council (SALW/ECOWAS) [2008] ECR I-3651, para
73.
131
This makes explicit in the Treaty what had already been declared by the Court
of Justice in Case C-65/93 European Parliament v Council [1995] ECR I-643, at para
23.
132
Case C-317/04 European Parliament v Council [2006] ECR I-4721.
133
Opinions may only be requested under Article 218(11) TFEU in respect of
envisaged that is, not yet concluded agreements: Opinion 3/94 [1995] ECR I-04577.
134
Case C-317/04 European Parliament v Council [2006] ECR I-4721, Opinion
of AG Leger, paras 277-9, citing Opinion 3/94 [1995] ECR I4577, paras 212.
89
significance. The Court did not address the issue as it decided to annul the
Council act on other grounds.
Coherence as Complementarity
As we have seen, hierarchy plays a relatively small part in achieving coherence between different EU external policies; the emphasis is rather on policy
coordination, complementarity and even integration, and here the institutional
dimension is designed to play an important role. Institutional structures alone
will never create coherence of course, a point made by Simon Duke in his
contribution to this volume. At the time of writing, the debates taking place
over the scope of responsibilities of the EEAS an institution specifically
intended to bridge institutional divisions and create the conditions for coherent policy-making are a clear example of this. However, as Duke also argues,
the perceived need for greater coherence has institutional implications.
Particularly significant in the context of this chapter, because of the influence
they are likely to have on relations between policy instruments, are the role of
the European Council in identifying the strategic interests and objectives of
the Union relating both to the CFSP and to other areas of the Unions external
action;135 the double-hatted role of the High Representative of the Union for
Foreign Affairs and Security Policy with her specific mandate to ensure the
consistency of the Unions external action; and the EEAS.136
The common set of principles and objectives for all external action (including the external dimensions of other policies) set out in Article 21 TEU is
clearly intended to bridge policy divisions and to enhance policy coherence,
and since both hard distinctions and hierarchy between those objectives are
avoided coherence is here a matter of consistency and complementarity (as we
saw in the previous section, this sits somewhat uneasily with the delimitation
rule in Article 40 TEU). Apart from these general provisions, some specific
policy objectives are required to be taken into account in all the Unions activities: certain policy priorities such as combating discrimination (Article 10
TFEU), environmental protection (Article 11 TFEU) and consumer protection
(Article 12 TFEU) are to be integrated into all policies and activities (including external policy) and the EU is to take account of development cooperation
objectives in the implementation of policies likely to affect developing countries (Article 208(1) TFEU). How enforceable are these obligations? It is hard
to imagine them being the successful basis of a legal challenge to a measure
which, it might be argued, did not take sufficient account of one of these
135
136
Article 22(1) TEU.

Article 18(4) TEU.
90
policy priorities. It is difficult even to argue that all legal acts should include
a reference in their reasoning to these horizontal objectives. The Courts
legal base case law, as we have seen, does not support the inclusion of an additional legal base for objectives which are only incidental. These provisions
are more plausibly seen as guidance to the institutions in the process of policy
development, to be read alongside the institutional (and inter-institutional)
obligation to ensure consistency.
Not surprisingly, then, we find that the substantive principles designed to
promote coherence in the sense of complementarity do not take the form of
hard obligations. Here there is a tension between the levels of coherence; the
allocation and delimitation rules (hierarchies of norms, legal base rules,
Article 40 TEU) are cast in stronger terms. Thus it would appear that the hard
obligation found in Article 40 TEU to keep separate (if that is indeed what is
entailed) the CFSP from other external competences may prevail over the
injunction to promote policy complementarity through shared objectives and
strategy decisions. If Article 40 TEU is interpreted so as to preclude joining a
CFSP legal base to another policy legal base that would indeed be the result.
This is not to say that softer policy frameworks designed to promote coherence do not have a useful function. The European Neighbourhood Policy is an
example of just such a framework: still largely operating outside binding
instruments and based on Council Conclusions and non-binding strategy documents, it serves to pull together a number of different legal instruments including bilateral agreements and financial assistance into a policy structure with its
own distinctive objectives which range over the whole of EU policy.137
Strategies and guidelines adopted by the European Council have also played
this role,138 although the TEU now offers the possibility of formalizing such
documents in formal decisions under Article 22 TEU.139 To what extent these
frameworks play a role in promoting policy coherence by exercising a measurable influence on policy, and to what extent they serve only to re-badge exist-
137
Cremona, M. and Hillion, C., LUnion fait la force? Potential and

Limitations of the European Neighbourhood Policy as an Integrated EU Foreign and
Security Policy, EUI Working Paper LAW No. 2006/39; Cremona, M., The European
Neighbourhood Policy: More than a Partnership? in Cremona, M. (ed.), Developments
in EU External Relations Law (Oxford: Oxford University Press, 2008).
138
See for example, European Security Strategy 2003; EU Strategy Against
Proliferation of Weapons of Mass Destruction, doc. 15708/03; Joint Statement by the
Council and the Representatives of the Governments of the Member States meeting
within the Council, the European Parliament and the Commission on European Union
Development Policy, The European Consensus, OJ 2006 C46/1; EU Guidelines on
Children in Armed Conflict, doc. 10019/08.
139
It will be interesting to see if this provision is more utilized than the provision
for Common Strategies found in ex-Article 13(2) TEU.
91
ing measures and policies, is a question that can only be answered, if at all, on
a case by case basis.140
CONCLUSION
What conclusions can we draw as to the place of legal rules and principles in
promoting the three different levels of coherence we have explored in this
chapter, in both their vertical and their horizontal dimensions? First, we may
note not only the importance of Treaty rules but also the part played by the
Court of Justice in interpreting those rules and in defining the scope of the
obligations owed by the Member States and Union institutions; many of the
principles we have discussed, from primacy to the duty of cooperation, derive
either their strength or their very existence from the Courts case law.
Second, it is clear that legal rules play a greater part in first and second level
coherence (consistency and delimitation) than in coherence as complementarity or synergy. This is not surprising given the nature of complementarity.
Nevertheless it is interesting that in practice legal rules have a larger role when
we think of complementarity in its vertical dimension as compared with its
horizontal dimension: the duty of cooperation has proved crucial here as a
powerful constraint on the exercise of Member State competence. Until now,
legal rules have also played a larger role in the non-CFSP dimensions of EU
foreign policy; this could change but much will depend on how the Court uses
the limited jurisdiction it is given over the CFSP.141
Third, we have seen that tensions may exist between different levels of
coherence: between rules of conflict and rules of delimitation, and between
rules of delimitation and complementarity. It is not possible, however, to argue
that one of these three aspects of coherence will always take precedence over
the others although consistency may in some sense be more fundamental, the
different rules we have examined interact in different ways in different
contexts and at the functional level there is no simple hierarchy between them.
Fourth, the complexity of and interaction between these different rules and
principles demonstrate that coherence is not simply seen, in the Union legal
order, as a matter of achieving uniformity. Unity of international representation and policy coherence is sought within a diversified structure, with multiple players and different voices, with different competences and powers.
Coherence in such a context requires not only rules of hierarchy, designed to
140
For a study of the ENP in this respect see Van Vooren, B., A Paradigm for
Coherence in EU External Relations Law: The European Neighbourhood Policy, PhD
thesis defended at the EUI, May 2010.
141
Art 275 TFEU.
92
ensure that in a conflict a single rule will prevail, but also rules designed to
establish well-oiled and well-articulated links between the different parts of
the whole. The EU Treaties reflect this institutionally by putting responsibility
for coherence not on one only but on a number of key actors. However it is
perhaps an institution which is not expressly mentioned as having a specific
responsibility for coherence in foreign policy that has the potential to play a
significant role in monitoring the EUs performance in this respect: the
European Parliament. Its increased foreign policy powers have already been
felt in a context raising issues of policy coherence.142 The distinctive contribution it will make as a result of its increasingly direct involvement in EU
foreign policy will be one of the most interesting consequences of the Lisbon
constitutional settlement.
142
In February 2010 the Parliament rejected an agreement between the EU and
the USA on the processing and transfer of Financial Messaging Data for the purposes
of the Terrorist Finance Tracking Program (SWIFT Agreement). The agreement had
been negotiated by the Presidency and signed in November 2009, under the pre-Lisbon
regime, and was due to come into force provisionally on 1 February 2010 (Council
Decision 2010/16/CFSP/JHA OJ 2010 L 8/9). With the coming into force of the Lisbon
Treaty, its legal bases became Articles 82(1)(d) and 87(2)(a) TFEU, and since these
both specify the ordinary legislative procedure for the adoption of internal acts, the
consent of the European Parliament is required under Article 218(6)(a)(v) TFEU (COM
(2009) 703 final). See Monar, J., The Rejection of the EUUS SWIFT Interim
Agreement by the European Parliament: A Historic Vote and its Implications (2010)
15 EFA Rev 143
PART II
Europes judges and the international order
3. Vlkerrechtsfreundlich? International
law and the Union legal order
Jan Klabbers
INTRODUCTION
The relationship between the European Union and public international law is
often depicted as one of friendliness and openness. The EU, so the story goes,
is vlkerrechtsfreundlich, as the Germans put it, for the obvious reason that it
is itself a creature of international law.1 After all, why bite the hand that feeds
you, or commit patricide? At worst, so the standard narrative continues, the
EU may need some shielding for a while, until such time as it has grown up
and can hold its own. International law is the parent, the EU is its offspring,
and they can and do co-exist and cooperate in great harmony. They truly form
a happy family.2
The story of the EU and international law as a happy family is a seductive
story, but it does have a few holes in its plot.3 For one thing, it carries the
implied promise that sooner or later the EU will be mature and grown up
enough, resilient enough, or immune enough to stand on its own two feet it
will have survived its infant diseases and no longer need special protection.
That is a seductive promise, but so far it has failed to materialize. The EU is
now (whether one starts counting in 1952 or 1958) more than half a century
old. Quite a few institutions have never reached that age: the EU, to make an
obvious point, is twice as old as the League of Nations ever was, and that is
A fairly random illustration is Petersmanns excellent discussion of what used

to be article 234 EC (then 307 EC, and since the Lisbon Treaty article 351 TFEU): see
Petersmann, E.-U., Artikel 234, in von der Groeben, H., Thiessing, J. and Ehlermann,
C.-D. (eds), Kommentar zum EWG-Vertrag, 4th edn (Baden-Baden: Nomos, 1991) pp.
572553.
2
The fatherchild analogy is made explicit by Timmermans, Ch., The EU and
Public International Law, (1999) 4 European Foreign Affairs Review 181.
3
Just for the record, I will consistently refer to the EU, ignoring any past
niceties of distinctions between the EU and the EC, except where those distinctions are
really relevant. The entry into force of the Lisbon Treaty, moreover, has seen to it that
those niceties are primarily of historical relevance these days.
95
96
including the Leagues comatose final six years.4 The EU is also older than
many independent states in Africa and Asia, and has surpassed such entities as
the erstwhile German Democratic Republic in terms of longevity.5 This raises,
it would seem, a fair question: for how much longer does the EU need special
protection?
The second curiosity in the standard narrative is that somehow the EU
seems to need protection from international law. This creates the impression
that international law is a potential villain, able for its own benefit to disrupt
the wonderful workings of the EU. In other words, and curiously enough,
international law is cast in the role of the unfit parent, perhaps even an abusive
parent. This is not an unfamiliar role in which international law finds itself:
right-wing international lawyers in the US tend to think international law is up
to no good, should be fought with all possible means, and should never ever
be allowed to enter the domestic legal order.6 But it is surprising, to say the
least, to see well-meaning progressive lawyers in the EU embrace a similar
opinion.
And then, third, there are awkward empirical concerns. If the EU is so open
and friendly towards international law, then why are its courts so reluctant to
apply World Trade Organization law? All observers agree that the EU courts
do not apply WTO law in any straightforward manner, and most seem to think
that this is an exception to the general rule. But if so, it is a rather large exception in quantitative terms (in that much of the EUs external legal relations
have to do with the WTO), and it is by no means clear what justifies the exception.7 It used to be thought, with the old General Agreement on Tariffs and
Trade, that the vagueness of GATTs provisions, combined with its unpredictable dispute settlement mechanism, precluded direct applicability in the
Community legal order, and with the conclusion of the WTO agreements the
thought took hold that direct applicability could be realized, for, after all, the
WTO package was a lot more concrete than the GATT and came equipped
with a serious dispute settlement body.8 Hence, over time a jurisprudence
4
The League was formally dissolved only in 1946. See generally Klabbers, J.,
An Introduction to International Institutional Law, 2nd ed., (Cambridge: Cambridge
University Press, 2009).
5
And this even if one accepts that the GDR existed since 1945, and not merely
from 1973 onwards, when it met with widespread recognition.
6
Something of a manifesto (with all that this label entails for its scholarly
merits) is Goldsmith, J. L. and Posner, E. O., The Limits of International Law (Oxford:
Oxford University Press 2005).
7
The relevant cases and literature are discussed in Klabbers, J., International
Law in Community Law: The Law and Politics of Direct Effect, (2002) 21 Yearbook
of European Law 263.
8
See, for example, Scott, J., The GATT and Community Law: Rethinking the
Vlkerrechtsfreundlich?
97
constante would arise and nothing would prevent the EC courts, in all their
Vlkerrechtsfreundlichkeit, from applying the unified and clear terms of WTO
law in the EU legal order.
That was some fifteen years ago. To date, the situation has not changed
though. While the WTO has developed into one of the leading institutions of
global governance, the EU courts still keep the WTO at bay, for the good
reason that they are instructed to do so by their political masters. After all, the
EU confirmed the WTO while explicitly barring WTO law from direct applicability in the EUs internal legal order. That may have been prudent and politically wise (the US and Japan did much the same), but does make a dent in the
classic narrative of the EU as being open and receptive to all things international. With this mind, it may be time to re-think the classic story of
Vlkerrechtsfreundlichkeit, and see if it comes closer to being a fairy tale than
a well-considered, academically responsible opinion. It will be my contention
that closer scrutiny reveals that the openness narrative is not supported by
practice, in particular the practice of the courts, and I will end by proposing a
rival proposition, according to which the EC was not all that interested in
being vlkerrechtsfreundlich to begin with, but rather in guarding its own
autonomy. If and when possible it will happily do so in harmony with international law, but if and when it is impossible to do so harmoniously, international
law will have to take the backseat.
It should be stressed, perhaps, that there is nothing eccentric about this, let
alone anything morally repulsive. While previous generations of EU lawyers
and international lawyers stressed the moral superiority of the doctrine of
monism9 (in many versions of which international law is deemed to be hierarchically superior to all other law), and would emphasize also that international
law was somehow better than domestic law, more recent theorizing underlines that the rival doctrine of dualism has something going for it as well, and
that law is not necessarily better for being international.10 Still, even if there
is nothing wrong with dualism per se, the consistent downplaying of the relevance, or even applicability, of international law, is cause for concern. What
should also be stressed is that, as a matter of course, much depends on how
Regulatory Gap, in Shaw, J. and More, G. (eds), New Legal Dynamics of European
Union (Oxford, Oxford University Press 1995), p. 147.
9
A fine example is Sasse, Ch., The Common Market, Between International
and Municipal Law, (1996) 75 Yale Law Journal, 695.
10
One formulation is Rubenfeld, J., Unilateralism and Constitutionalism,
(2004) 79 New York University Law Review, 1971. Engaged internationalists have also
realized that international law may have a legitimacy problem and thus needs to be
propped up. An example is Peters, A.,Compensatory Constitutionalism: The Function
and Potential of Fundamental International Norms and Structures, (2006) 19 Leiden
Journal of International Law 579.
98
Vlkerrechtsfreundlichkeit is conceptualized. I shall take it to refer to an open

attitude towards rules of international law, a willingness not only to respect
international law on the international plane but also to apply it in the internal
legal order if and when appropriate.11 When confronted with a direct conflict
between international law and the internal legal order, one would expect
Vlkerrechtsfreundlichkeit to manifest itself by recognizing the existence of
the pertinent international law, and perhaps even accepting its supremacy. The
opposite, an unfriendly disposition towards international law, would manifest
itself in a systematic refusal to recognize the existence of international law, or
a refusal to apply it without even giving it proper consideration.12
In what follows I will systematically, if briefly, go through some of the relevant case-law of the European Court of Justice (in particular; the CFI will only
make sporadic appearances). Time and space do not permit a full analysis of
all relevant case-law; for this, a book-length publication would seem more
appropriate. Still, the case-law to be discussed does point in a single direction:
the EU is not nearly as vlkerrechtsfreundlich as the standard narrative
suggests.
SANCTIONS AGAINST INDIVIDUALS (KADI)

The relationship between international law and EU law has recently received
considerable attention due to the judgment of the ECJ in the Kadi case.13 The
Court decided to uphold human rights as constitutional guarantees in the EU
over and above the collective security mechanism of the United Nations. To
many observers, familiar with the traditional narrative set out above, Kadi
seems at first sight an aberration, a departure from the established case-law. As
a result, an explanation for this departure has to be looked for in extraneous
circumstances (extraneous to the jurisprudence constante, that is). One obviously possible explanation, then, is that what was at stake in Kadi was the
position of fundamental human rights, and the Court can hardly be faulted for
taking rights seriously. Hence, if explained at all in terms of the relationship
between international law and EU law, Kadi is explained as carving out a
11
The if and when appropriate here is of course and by definition subjective,
but does not mean that the courts have the unfettered freedom to find all possible invocations of international law inappropriate.
12
As a matter of legal theory, I rely here on a conception of virtue jurisprudence, which insists that judges approach the cases before them with a proper mindset if they are to do their jobs well, and without succumbing to kneejerk reflexes. See,
for example, Farrelly, C. and Solum, L. B. (eds), Virtue Jurisprudence (Basingstoke:
Palgrave Macmillan 2008).
13
Case C-402/05 P, Kadi v Council and Commission [2008] ECR I-6351.
99
human rights exception to the traditional Vlkerrechtsfreundlichkeit narrative.

Alternatively, and possibly more commonly, it may be claimed that Kadi does
not posit a conflict between EU law and international law to begin with, but
really only concerns the legality of EU measures tested against some of the
fundamental constitutional norms of the EU. This is the way in which
Advocate General Maduro framed the issue, a way that was by and large
followed by the Court.14 This framing of the issue is deceptive, however, as it
ends up ignoring the position of the United Nations Charter, the supremacy of
that Charter and the obligations of all EU Member States to accept and carry
out decisions of the Security Council. This way of framing the issue aims to
think away any possible conflict between international law and EU law by
ignoring the very existence of international law. However, ultimately, this can
only succeed at the expense of international law and so is not a real solution
by any means.
What this chapter aims to suggest is that the Kadi case is best seen not as
an exception to the traditional Vlkerrechtsfreundlichkeit of the EU, much less
as a merely internal constitutional case, but rather as the clearest formulation
to date of the Courts position on the relationship between international law
and EU law. I will seek to make this claim by going through some of the relevant case-law on this relationship, informed by the suspicion that what the
Court is interested in is first and foremost the defence of the realm: the autonomy of the EU legal order must be protected. Looked at from such a vantage
point, the case-law no longer contains major exceptions but rather forms a
consistent and coherent narrative.
But first it might be useful to spell out very briefly the jurisprudential
underpinnings of the standard narrative as set out above. This narrative begins
with the classic Haegeman case, in which the Court held that treaties
concluded by the Community, upon entry into force, form an integral part of
Community law.15 The Court did not develop this much further, and it
remains something of an open question as to through what method such an
agreement enters into force for the Community. The Haegeman case itself
might suggest that no further legislative action is required (the judgment of the
Court, read in isolation, seems unequivocal enough), but doubts remain on two
scores. First, the Court specifically mentions the Council decision concluding
the agreement in question, which may be taken to mean that the agreement
enters the Community legal order through the Council decision.16 Second, the
14
15
16
Ibid., Opinion delivered 16 January 2008.

Case 181/73, Haegeman v Belgium [1974] ECR 449, para. 5.
The Council decision is not to be seen as the act of ratification, as the latter
takes place, by definition, on the international level. Under international law, it would
suffice for the Community to ratify without any specific internal legal act.
100
agreement at issue in Haegeman was an association agreement; as will be

further explained below, such agreements tend to have dynamics of their own,
setting them apart from most other agreements to which the EC is a party.
In Kupferberg,17 the Court provided something of an explanation for why it
treats agreements concluded by the Community as forming an integral part of the
Community legal order. Such treaties create, as it were, a tripartite relationship.
Treaties concluded by the Community create a legal relationship between the
Community and its treaty partner, but also between the Member States and the
treaty partner and, above all, as the Court has it, between the Member States and
the EC. Treaties are considered to form an integral part of the Community legal
order; hence, their effects may not vary across member states or between Member
States and Community. By positing treaties as an integral part of Community
law, therefore, the Court retains full control over their application. This owes little
to respect for international law as such (although respect for international law
may, of course, be a welcome side-effect), but owes everything to the perceived
necessity of protecting the autonomy of the Community legal order.
Sometimes the Haegeman approach is conceptualized as forcing EC
Member States to uphold international commitments entered into by the
Community and risk being brought to justice under EC law should they fail to
do so. Commendable as this is, it is by no means born out of respect for international law per se; instead, the underlying idea is, once again, to safeguard
EC law against being undermined by recalcitrant Member States. International
law is protected here not because it is international law and because the Union
is so vlkerrechtsfreundlich, but instrumentally to serve the interests of the
Union. This, then, effectively set the tone for the subsequent case-law: treaties
to which the Community is a party form an integral part of the Community
legal order but do so (presumably) only upon an internal decision granting
them some kind of effect, and for the purpose of protecting the autonomy of
the Community legal order. The same theme, moreover, recurs even in radically different settings. Thus the Court has held, in ERTA,18 that the
Community power to enter into external transport agreements arose from the
need to protect the Community legal order, and the case-law on agreements
concluded by individual member states too suggests (as will be shown below)
that protection of the Community legal order weighs more heavily than any
other concern, including respect for international law.19
17
Case 104/81, Hauptzollamt Mainz v Kupferberg [1982] ECR 3641, paras 13
and 14.
18
19
Case 22/70, Commission v Council [1971] ECR 263, para. 17.

See generally (also discussing the treaty-making practice) Klabbers, J.,
Safeguarding the Organizational Acquis: The EUs External Practice, (2007) 4
International Organizations Law Review 57.
101
THE LAW OF THE WORLD TRADE ORGANIZATION

There are a number of indications, both in the founding treaties and the caselaw of the European Court of Justice and the Court of First Instance, which
suggest that international law is not always given the sort of respect one might
have expected following the notion of Vlkerrechtsfreundlichkeit. The most
obvious example, as indicated above, resides in the case-law of the EU courts
concerning the effect of WTO law in the EU legal order. The general position,
inspired by the instruments confirming the EUs membership of the WTO, is
that WTO law shall not be given direct effect in the EU legal order. In other
words: private parties (and Member States alike) cannot rely on WTO law
within the EU legal order; they cannot go to a local court and claim that some
trade measure is in violation of WTO law.
To this strictly maintained string of cases, two or maybe three, upon charitable interpretation exceptions have been carved out (if exception is the
proper word, as these do not, strictly speaking, provide WTO law with direct
effect either).20 These exceptions relate, first, to the situation where an EC
instrument has been enacted to implement WTO law; in such a case, the
conformity of the EC instrument to the underlying WTO instrument may be
tested.21 Second, there is the situation where a Community law instrument
offers relief for alleged violations of international law; in such cases, those
rules of international law (including WTO law) may be invoked before the EC
courts.22 Third, there is the duty to interpret EU law as far as possible in
conformity with WTO law, as laid down in the IDA case. While this may be a
useful substitute for direct effect, it remains precisely that: a substitute, which
can be cast aside by, for instance, later legislation.23 Still, despite these exceptions, the basic rule regarding the relationship between EU law and the particular manifestation of international law that is GATT/WTO law, is that the
latter shall not affect the former. Regardless of the circumstance that over the
last 15 years the WTOs panels and Appellate Body have built up a fairly
straightforward body of case-law, thereby clarifying and solidifying the law
and removing some of the discretion often associated with GATT law, direct
effect is still precluded.24
20
21
22
See generally Klabbers, n7 above.

Case 69/89, Nakajima v Council [1991] ECR I-2069.
Case 70/87, Fediol v Commission [1987] ECR 1781, para. 19: citizens may
rely on the provisions of GATT in order to obtain a ruling on whether conduct criticized in a complaint lodged under [a Community regulation referring to GATT] constitutes an illicit commercial practice within the meaning of that regulation.
23
Case C-61/94, Commission v Germany [1996] ECR I-3989, para. 52. See also
the brief discussion below.
24
Compare the ease and certainty with which a dispute involving the standard
102
As a theoretical matter, this should already raise a few eyebrows. Surely,

any theory concerning the behaviour of actors needs to able to incorporate
deviations. The larger the group of deviations, the more worried the theoretician should be. In casu, the general theory of Vlkerrechtsfreundlichkeit
cannot withstand too many exceptions, or too great a number of exceptional
instances. If it turns out that in a large number of cases the courts are not acting
in a very vlkerrechtsfreundlich way, then perhaps there is something wrong
with the underlying theory.25
While there is little point in making any precise calculations about the
number of cases reaching the courts involving international law and the
percentage thereof devoted to WTO law, even a casual familiarity with the
case-law suggests that it concerns quite a few cases. This makes sense, of
course, as external commerce is one of the few areas where the Community is
deemed to have exclusive competence.26 The Community is far more active in
trade than it is in, say, disarmament, so it stands to reason that WTO cases
comprise a substantial proportion of the cases involving international law. And
if this assessment is correct, it follows that the standard narrative of
Vlkerrechtsfreundlichkeit has something of a problem: it cannot explain a
substantial part of the empirical material other than by classifying it as somehow exceptional.27
MEMBER STATE AGREEMENTS

The standard narrative of Vlkerrechtsfreundlichkeit is also under stress from
other angles it is not only the WTO-related cases which cast doubts on the
thesis. A good example is also formed by the case-load on so-called anterior
exception to GATT 1994 (article XX) can be resolved, in for example, Mexico: Taxes
on Soft Drinks (United States) (Case DS/306, Appellate Body report circulated in
2006), with the chaotic situation prevailing before the creation of the WTO, for example, as depicted in Klabbers, J. (1992), Jurisprudence in International Trade Law:
Article XX of GATT, 26(2) Journal of World Trade, 6394.
25
I use the word theory here as convenient shorthand. There is room for the
opinion that the word theory should not be used too rashly. A fine expos is De Vree,
J. K., Political Integration: The Formation of Theory and its Problems (The Hague,
Mouton 1972).
26
See Opinion 1/75 (re OECD Local Cost Standard) [1075] ECR 1355, esp. at
1363.
27
Moreover, it cannot be claimed that the empirical material is mistaken or that
the courts consistently get it wrong. It may be true, of course, that the courts consistently get it wrong, but this cannot mean that therefore the Vlkerrechtsfreundlichkeit
thesis survives unscathed: if it aims to explain the case-law, it should as a general
matter also cover those cases where the courts get it wrong.
103
treaties, that is, treaties concluded by Member States with each other28 or
with third parties before they joined the EU or before the establishment of the
EU.29 On paper, such anterior agreements are protected under article 307 EC
(now 351 TFEU). On the theory that the rights of third parties need to be
protected, a theory dating back to the early 1960s,30 Article 307 (now 351
TFEU) seemingly protects anterior treaties.
There is a catch, however, which is eminently visible in the second paragraph of that article: any incompatibilities between the protected anterior
treaty and obligations under EU law must as soon as possible be eliminated by
the Member State concerned. This can be read, as has been done, as stating
that the article requires Member States to find a way of accommodating their
international obligations within the Community legal order and that the
national interest ought to be balanced with the interests of the community.31
Still, such a reading depends for plausibility on the attitude of the Court and it
would seem that that has been less than fully generous here.32 Sometimes they
have reached the conclusion that actually the anterior treaty had (sometimes
mysteriously) been terminated. Highly suggestive here is the Burgoa case,
involving an anterior treaty with Spain (at the time not yet an EU Member
State) which was mysteriously deemed to have been replaced by a newer one
without the newer one having been ratified, or even signed, by Spain.33 In other
cases, the conclusion was reached that the Member State had not tried hard
enough to terminate any incompatibilities and sometimes the Court even found
that when the duty to terminate incompatibilities arose from secondary legislation, the protection of Article 307 would not be applicable to begin with.34 In
yet other cases, it felt that the anterior treaty, to the extent applicable between
28
On treaties concluded between member states, seminal is De Witte, B., Oldfashioned Flexibility: International Agreements between Member States of the
European Union, in De Brca, G. and Scott, J. (eds), Constitutional Change in the EU:
From Uniformity to Flexibility? (Oxford, Hart Publishing 2000) 31.
29
See generally Klabbers, J., Treaty Conflict and the European Union
(Cambridge, Cambridge University Press 2008).
30
See Case 10/61, Commission v Italy [1961] ECR 1.
31
See Koutrakos, P., EU International Relations Law (Oxford, Hart Publishing
2006), at 304 and 308, respectively.
32
On the significance of judicial attitudes, see Klabbers, J., The EU in the
Global Constitutional Mosaic, in Walker, N., Shaw, J. and Tierney, S. (eds), Europes
Constitutional Mosaic (Oxford, Hart Publishing 2010).
33
Case 812/79, Attorney General v Burgoa [1980] ECR 2787.
34
See, for example, Joined Cases C-171/98, C-201/98 and C-202/98, Commission
v Belgium and Luxembourg [1999] ECR I-5517; Case C-62/98, Commission v Portugal
[2000] ECR I-5171, and C-84/98, Commission v Portugal [2000] ECR I-5215. For brief
discussion, see Klabbers, J., Moribund on the Fourth of July? The Court of Justice on
Prior Agreements of the Member States, (2001) 26 European Law Review, 187.
104
Member States, had been superseded by Community law even if it concerned

a topic not immediately and obviously coming within the scope of Community
competence.35 In short, no anterior treaty has been left completely undisturbed; the friendliest the Court has been was in Case C-203/03, when Austria
was told to respect the period of notice laid down in an International Labour
Organization (ILO) convention deemed incompatible with EU law but
Austria was still instructed to terminate at the earliest possible occasion.36
Even less international law-friendly is the attitude displayed towards
treaties concluded by Member States with third parties after having joined the
EU. These are not protected at all by the treaties (although it has been argued
three decades ago that a clause on the topic would be welcome37) and as a
result the Court has invariably struck down such agreements as being incompatible with the obligations of Member States under the treaties; some of the
so-called Open Skies cases form useful examples. What remains rather
unclear, at times, is what Community law obligations are actually at stake:
how are such treaties said to violate the Member States obligations under
Community law? Often enough, the incompatibility is a potential incompatibility rather than an actual one, and often enough, the subject-matter of the
agreement concerned does not fall within the exclusive sphere of Community
competence. In such cases, then, the Court has seen fit to base its conclusions
most of all on the under-theorized notion of Gemeinschaftstreue: the idea that
the Member States should be loyal towards the Community and thus refrain
from action which could, even if only potentially, undermine the workings of
the Community.38 Needless to say, this casts the net very wide: it is difficult to
imagine Member State action which would never even raise a potential incompatibility. As a result, not a single agreement concluded by a Member State
with a third party after joining the EU has survived the scrutiny of the courts
the case-law strongly suggests that the Court is not too interested in the
notion that at issue are treaties validly concluded and in force under public
international law, regardless of the precise internal EU law issues. While
statistics are not conclusive here (in that there is the possibility that the
Commission only starts proceedings against a Member State over a posterior
treaty if it can be reasonably certain of winning its case), nonetheless they go
some way towards undermining the Vlkerrechtsfreundlichkeit of the EU.
35
See, for example, Case 235/87, Annunziata Matteuci v Communaut
Francaise of Belgium and Others [1988] ECR 5589.
36
See Case C-203/03, Commission v Austria [2005] ECR I-935, esp. paras
634.
37
See Krck, H., Vlkerrechtliche Vertrge im Recht der Europischen
Gemeinschaften (Berlin, Springer 1977).
38
See, for instance, Case C-467/98, Commission v Denmark [2002] ECR I-9519.
105
HUMAN RIGHTS
In much the same vein, the reception of international human rights law in the
Community legal order is riddled with ambivalences.39 At first sight it may
look as if here at least, the courts have been highly vlkerrechtsfreundlich:
since the late 1960s, it has been common for the courts to refer to human
rights, despite the ECJs earlier marked reluctance to have anything to do with
human rights.40 Upon closer scrutiny though, the impression of
Vlkerrechtsfreundlichkeit dissipates, and as good an example as any (or
perhaps better than most) is the Schmidberger case.41 Here the Court was
confronted with a human rights claim (the right to demonstrate, derived from
the freedoms of expression and assembly) which conflicted with a free movement right, as these are guaranteed under EC law. In the end, the Court found
in favour of the human rights claim, but that is not actually all that relevant.
What is relevant is the Courts methodology: it suggested that the free movement rules form the generally applicable rule, which would sometimes have to
allow for an exception in the form of human rights. Hence, the Court posited
a clear hierarchy, rendering human rights subservient to free movement.
Moreover, through the years the Court has been reluctant to import human
rights directly from the relevant conventions under international law, even
those to which the Member States are parties. The typical formula used by the
Court is that human rights (the Court often speaks of fundamental rights) are
among the general principles of law which the Court must apply. In doing so,
the Court is bound to draw inspiration from constitutional traditions common
to the member states [and] international treaties for the protection of human
rights on which member states have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework
of Community law.42 By emphasizing that fundamental rights have their
place within the framework of Community law, the words quoted above
already foreshadowed decisions such as Schmidberger. The Courts reluctance
to look outside Community law directly to international human rights law,
moreover, lingers on: while it has come to acknowledge that the European
Convention on Human Rights has special significance, the European
39
For a particularly useful study of the role of human rights in the EUs external relations, see Leino-Sandberg, Pivi, Particularity as Universality: The Politics of
Human Rights in the European Union (Helsinki, Erik Castrn Institute, 2005).
40
See Case 1/58 Stork v High Authority [1959] ECR 17.
41
Case C-112/00 Schmidberger [2003] ECR I-5659.
42
See Case 4/73, Nold v Commission [1974] ECR 491. See generally also
Coppell, J. and ONeill, A., The European Court of Justice: Taking Rights Seriously?,
(1992) 29 Common Market Law Review, 669.
106
Convention is still but a guideline to be followed within the framework of

Community law.43
UNITED NATIONS LAW

United Nations law is a special case. After all, the UN is the closest thing the
world community has to a global organization of (fairly) general jurisdiction,
and some have even heralded the UN Charter as the constitution of the international community.44 But even for those who find this proposition too stark,
there is no denying that the UN Charter demands special treatment. Its Article
103 specifies that obligations under the Charter prevail over other obligations,45 a position that has found confirmation in Article 30 of the Vienna
Convention on the Law of Treaties.
As a technical matter, the EU itself is not bound by any obligations under
the UN Charter, as it is not (and cannot be) a member of the UN. Its individual Member States, however, are: they have pledged to accept and carry out
binding decisions of the Security Council, in the words of Article 25 UN, and
surely the general position under international law is that they cannot escape
from such obligations by creating an international organization. Moreover, the
creation of the UN pre-dates the creation of the EU, although for some of the
Member States UN membership came later than EU membership (this applies
with particular resonance to Germany). Hence, the legal situation is not without its complications. One way of addressing these complications was tried out
by the Court of First Instance in its Kadi and Yusuf cases, where it launched a
theory of treaty succession.46 Such a theory had been pioneered by the
European Court of Justice in the early 1970s, in order to come to terms with
the effect of GATT obligations on the Community. The succession theory as
43
See for example, Case C-36/02, Omega Spielhallen v Oberburgermeisterin
der Bundesstadt Bonn [2004] ECR I-9609. For useful commentary, see Morijn, J.,
Balancing Fundamental Rights and Common Market Freedoms in Union Law:
Schmidberger and Omega in the Light of the European Constitution, (2006) 12
European Law Journal 15.
44
Perhaps the most well-known proponent of this thesis is Fassbender. See,
most recently, Fassbender, B., The United Nations Charter as the Constitution of the
International Community (Leiden, Martinus Nijhoff 2009).
45
A useful recent discussion is Liivoja, R., The Scope of the Supremacy Clause
of the United Nations Charter (2008) 57 International and Comparative Law
Quarterly 583.
46
See Case T-306/01, Yusuf v Council and Commission [2005] ECR II-3533,
and Case T-315/06 Kadi v Council and Commission [2005] ECR II-3649.
107
set out in International Fruit Company boils down to the following.47 Under
international law, it is generally possible that treaty commitments are transferred from one entity to another; typically, this takes place when there is a
change in legal identity (state succession). In the context of the EUs position
in GATT, since the EU has exclusive powers in the field of international trade,
the Member States can be deemed to have intended the transfer of treaty obligations (along with the transfer of powers). This transfer of obligations has met
with the acceptance or acquiescence of the other parties to GATT. Hence, the
Community can be deemed to have succeeded to its Member States obligations under GATT.
The CFI, in Kadi and Yusuf, made a valiant effort to apply the same reasoning to economic sanctions as ordained by or under authority of the Security
Council, but without much success. For one thing, the EU does not have exclusive powers in the field of peace and security, nor even in the more narrowly
construed field of economic sanctions. Moreover, it can hardly be maintained
that the EUs Member States intended to transfer their own obligations under
the Charter to the EU: surely France and the United Kingdom are not willing
to hand over their permanent positions on the Security Council and the
concomitant legal responsibilities. And if there is little or no evidence of an
intention to transfer legal obligations, there cannot be much evidence of acceptance of such transfer either.48
The CFIs attempt in Kadi and Yusuf marked an unsuccessful departure
from the established case-law. Traditionally, when confronted with Security
Council resolutions, the typical approach of the Court has been not to pay too
much attention to the Security Council but rather to pay full attention to the
implementing act. A typical example is the Bosphorus decision, where the
Court eventually used the wording of the underlying Security Council resolution to confirm the interpretation of the implementing EC regulation.49 The
need for implementing legislation is itself not without interest: it suggests a
thoroughly dualist attitude to international law, on a par with the strict form of
dualism traditionally associated with the United Kingdom: international law
47
Cases 21/7224/72, International Fruit Company and Others [1972] ECR
1219.
48
See, in the same vein, Advocate General Kokotts Opinion in Case C-308/06,
Intertanko [2008] ECR I-4057, esp. paras 4045, with respect to the EUs obligations
under the 1973 International Convention for the Prevention of Pollution from Ships
(MARPOL). The Courts analysis in the same case is decidedly more succinct, merely
citing its earlier Peralta judgment without further argument (and it may be useful to
note that on this point, Peralta provided no argument either). See ibid., para. 48, and
see Case C-379/92, Peralta [1994] ECR I-3453, para. 16.
49
Case C-84/95, Bosphorus v Minister for Transport, Energy and
Communications, Ireland and the Attorney General [1996] ECR I-3953, esp. para. 15.
108
may well be creative of binding commitments on the international level, but is

not deemed to enter directly into the internal (in this case EU) legal order.
Instead, it can only have internal effects if and when transformed into instruments of EU law. While it would be too far-fetched to say that dualism and a
friendly disposition towards international law are mutually exclusive, it may
well be claimed that a monist attitude would make it easier to give effect to
Vlkerrechtsfreundlichkeit. Hence, the very dualism supported (possibly
created) by the Court in itself already casts doubts on the EUs supposed
Vlkerrechtsfreundlichkeit. In UN-related cases, then, what the Court typically
has done is to interpret and apply implementing legislation: an EC regulation,
in most circumstances. At best, the Court uses the underlying Security Council
resolution as a guide to interpretation nothing more, as one prominent
observer has noted.50
CUSTOMARY INTERNATIONAL LAW

As a matter of general international law, the EC is bound to respect customary
international law. That much would seem to be clear from the case-law of the
International Court of Justice, in particular the 1980 WHOEgypt opinion,51 as
well as from the case-law of the ECJ itself. Thus, the Court confirmed in
Poulsen and Diva that the EC was bound to respect the international law of the
sea as it manifested itself in the form of treaties and customary international
law, but was not called upon to have customary international law do much
work in its final decision.52
By contrast, the application of customary international law proved far more
difficult in Racke v Hauptzollamt Mainz.53 In this case, at issue was whether
the unilateral suspension by the EC Council of a free trade agreement
concluded with the Socialist Federal Republic of Yugoslavia upon the
50
See Puissochet, J.-P., The Court of Justice and International Action by the
European Community: The Example of the Embargo against the Former Yugoslavia,
(1997) 20 Fordham International Law Journal, 155776, esp. at 1570.
51
See Interpretation of the Agreement of 25 March 1951 between the WHO and
Egypt (advisory opinion), [1980] ICJ Reports 73, at 8990: International organizations
are subjects of international law and, as such, are bound by any obligations incumbent
upon them under general rules of international law, under their constitutions or under
international agreements to which they are parties.
52
Case C-286/90, Anklagemyndigheden v Poulsen and Diva [1992] ECR I6019.
53
Case C-162/96, Racke v Hauptzollamt Mainz [1998] ECR I-3655. For extensive comments, see Klabbers, J., case-note, (1999) 36 Common Market Law Review,
17989.
109
outbreak of hostilities in Yugoslavia could be justified under international law.

This called for an application of the customary law of treaties, as the 1986
Convention on the Law of Treaties concluded with or between International
Organizations has never entered into force.54 The applicant, a German wine
importer, felt that the unilateral suspension could not be justified; the Court,
however, thought differently, eventually finding that such unilateral suspension could be justified on the basis of the rebus sic stantibus doctrine, that is,
the doctrine that the occurrence of a fundamental change of circumstances
justifies unilateral suspension or even termination of a treaty.55
The case raised a number of issues, some perhaps a little spurious. Among
these was the question, analysed at length in the Opinion of Advocate General
Jacobs, whether customary international law could be directly effective in the
Community legal order. While this may well be possible, it cannot be (as the
Advocate General seemed to suggest) on the basis of a legislative intention: as
customary international law is by definition the aggregate of numerous individual acts of practice, in conjunction with a belief that such acts are legally
warranted, it is not the result of any legislative effort. Also intriguing was the
way in which the Court construed the issue, suggesting that the applicant, Mr
Racke, had invoked the rebus sic stantibus doctrine in his support.56 This now
seemed to turn the case on its head: after all, it was the unilateral suspension
of the free trade agreement which required justification, and the justification
was sought, by the Council, to reside in the rebus sic stantibus doctrine, which
would allow the unilateral suspension or even termination of a treaty in case a
fundamental change of circumstances has occurred.57 To say that Racke
invoked the doctrine is effectively to argue that individuals prosecuted for
murder somehow invoke the prohibition of murder in order to get off the hook:
it only makes sense on a contorted construction of the case. What the construction suggests, then, as a methodological matter, is a reversal of the burden of
proof. In the Courts construction, it was up the applicant to prove that the
Council could not justifiably invoke the rebus sic stantibus doctrine, rather
than have the Council prove that it could invoke the doctrine with justification.
54
And treaties concluded by the EC fall outside the scope of the 1969 Vienna
Convention on the Law of Treaties, which only deals with treaties concluded between
states.
55
This has been codified in Article 62 of the Vienna Convention on the Law of
Treaties which, tellingly, phrases it in the negative: the starting point is that states may
not invoke a fundamental change of circumstances, save in exceptional cases.
56
See Racke, note 53 above, para. 49.
57
Article 62 of the Vienna Convention, however, suggests the strictest of conditions: the circumstances must have been essential for the conclusion of the treaty; the
change must have been unforeseen, and the change must be such as to radically alter
the scope of obligations still to be performed.
110
This then allowed the Court to limit itself to positing a superficial test when
assessing the legality of the Councils behaviour: the test was limited to finding whether the Council had made a manifest error of assessment.58
This reversal of the burden of proof alone is suggestive of the Courts
general attitude to international law: the Court is not above unilaterally reconstructing it.59 After all, as all aspiring international lawyers are taught: the
basic principle underlying the law of treaties is the rule that treaties are binding and shall be adhered to in good faith (pacta sunt servanda). Accordingly,
any exception thereto shall be narrowly construed, for otherwise the sanctity
of treaties can easily be jeopardized. Yet the Courts reconstruction seemed to
place the rebus doctrine as the general rule, with pacta sunt servanda as the
exception whose invocation requires justification.
It is also useful to point out that the particular construction of the rebus
doctrine by the Court is not a construction many international lawyers would
immediately recognize, let alone endorse. Courts and tribunals have habitually
been very reluctant to apply the doctrine in concrete cases before them, recognizing that honouring an appeal to the rebus doctrine would potentially open
up the proverbial Box of Pandora. Hence, the jurisprudence constante held
something to the effect that whilst such a doctrine exists in positive international law, it does not apply on the facts of the case. Not surprisingly, this was
also the position of the International Court of Justice on the occasions when it
was confronted with an invocation of the rebus doctrine.60 The ECJ, however,
held differently, and felt that a treaty suspension would be justifiable as soon
as one of the parties felt there was no point in maintaining a treaty relationship.61 What is more, the Court held that the outbreak of hostilities constituted
a fundamental change of circumstances, so fundamental as to warrant application of the rebus sic stantibus doctrine. While intuitively plausible perhaps,
it does go against the intentions of the drafters of the Vienna Convention:
Article 73 of the Vienna Convention generally excludes the outbreak of armed
conflict from the scope of the Vienna Convention.
58
59

Note also the efforts of the CFI to come to terms with the (customary) injunction not to defeat a treatys object and purpose prior to its entry into force in Case T115/94, Opel Austria v Council, [1997] ECR II-39. For discussion, see Klabbers, J.,
Re-inventing the Law of Treaties: The Contribution of the EC Courts, (1999) 30
Netherlands Yearbook of International Law, 4574, and Kuyper, P.J., The Court and
the Tribunal of the EC and the Vienna Convention on the Law of Treaties 1969, (1998)
25(1) Legal Issues of European Integration, 1.
60
See Fisheries Jurisdiction (Germany v Iceland), [1973] ICJ Reports 49, and
Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia), [1997] ICJ
Reports 7.
61
111
In conclusion, one can claim, at best, that the EUs Vlkerrechtsfreundlichkeit in the Racke case is manifested by the Courts willingness to
apply international law (in the form of the rebus sic stantibus doctrine) to a
case involving the legality of a Union act. Yet the manner in which the Court
does so suggests that far from being vlkerrechtsfreundlich, the Court follows
an agenda strictly of its own. It is not all that interested in respect for international law, as its eccentric construction of the case and its eccentric handling
of the rebus sic stantibus doctrine suggest. It is, instead, dramatically substituting its own version of international law for an international law that few
international lawyers would recognize. While admittedly much international
law still depends on auto-interpretation and few propositions can claim to be
absolutely beyond reproach, nonetheless the invisible college of international
lawyers, to invoke Oscar Schachters62 felicitous description of the interpretive community working in the field of international law,63 would not immediately reconcile itself to the version of the rebus doctrine endorsed by the
Court.64 While there may not be all that many absolutely right or absolutely
wrong legal arguments in international law, there are arguments which are
more plausible and those that are less plausible; the ECJs handling of the
rebus sic stantibus doctrine in Racke certainly belongs to the latter category.
ASSOCIATION AGREEMENTS
A particular class of international agreements involving Community participation comprises the so-called association agreements: agreements by means of
which the EC has established a more intense form of partnership, typically
with states located in the vicinity of the EU or states having special ties with
the EU. Such association agreements usually involve the setting up of institutional mechanisms, with the power to adopt legal instruments. The aim of such
association agreements sets them apart from regular treaties concluded by
62
See Schachter, O.,The Invisible College of International Lawyers, (1977) 72
Northwestern University Law Review, 217.
63
The valuable notion of interpretive communities was pioneered by literary
theorist Stanley Fish in Doing What Comes Naturally: Change, Rhetoric, and the
Practice of Theory in Literary and Legal Studies (Oxford, Clarendon Press 1989). For
useful application to international law, see Johnstone, I., Treaty Interpretation: The
Authority of Interpretive Communities, (1991) 12 Michigan Journal of International
Law, 371.
64
One illustration is that Aust, known for his expertise in the law of treaties,
downplays the relevance of the Racke decision as merely playing a possible role in
administrative review. See Aust, A., Modern Treaty Law and Practice (Cambridge,
Cambridge University Press 2000).
112
the Community, as association agreements typically aspire to create a longlasting partnership, possibly even leading to full EU membership down the
road (or, as the case may be, functioning as substitute for full membership). In
other words their aim is to establish some form of gradual integration between
the parties rather than some form of cooperation on a specific topic.
Association agreements tend to cover a lot of ground and, in terms of their
contents, tend to project the ECs image on to the association partner.65
As a result, it should not be surprising that the Court has been very liberal
in allowing these association agreements to enter the Community legal order.
As Koutrakos notes, with association agreements the Court seems to work on
the basis of an assumption that provisions are capable of having direct effect
without actually analysing the nature of the agreement in any detail: the
assumption of direct effect would follow from the very raison dtre of association agreements, that is, gradual integration.66 And to this it may be added
that often enough, the provisions of association agreements spring from
Community law and are meant to overcome provisions of the domestic law of
the Member States. So allowing for such provisions to have (potential) direct
effect helps to lock in the position of Community law in its Member States.67
The assumption may then be rebutted with respect to individual provisions, as
happened in Demirel.68 Here, the Court was unwilling to give direct effect to
programmatic provisions, suggesting that these were insufficiently precise and
unconditional. By contrast, the Court proved perfectly willing to grant direct
effect to the more detailed provisions contained in decisions of the Association
Council set up under the Association Agreement between the EC and
Turkey.69
INTERPRETATION IN CONFORMITY WITH

INTERNATIONAL LAW?
It is sometimes pointed out that even in those cases where the EU legal order
looks relatively closed for international legal provisions (for example, when
65
The legal basis for the conclusion of association agreements is Article 217
TFEU (ex Article 310 EC).
66
See Koutrakos, n 31 above at 238.
67
For a similar explanation as to why states may enter into human rights
commitments, see Moravcik, A., The Origins of Human Rights Regimes: Democratic
Delegation in Postwar Europe, (2000) 54 International Organization 217.
68
Case 12/86, Meryem Demirel v Stadt Schwbisch Gmund [1987] ECR 3719.
69
See Case C-192/89, S.Z. Sevince v Staatssecretaris van Justitie [1990] ECR
I-3461.
113
such provisions are not considered binding on the Community), nonetheless

an element of Vlkerrechtsfreundlichkeit can be seen in the willingness of the
Court to interpret EU law in light of existing international law. A good example is the Intertanko judgment. Part of the case revolved around the fate of the
MARPOL Convention, a treaty on maritime pollution binding the EUs
member states but not the EU (in casu the EC) itself. Given the fact that the
Convention binds all member states, the Court held that the interpretation of
secondary Community law must take account of the MARPOL
Convention.70 Much the same applies to those agreements that count the EC
as a party but seemingly cannot be granted direct effect. The lack of direct
effect notwithstanding, interpretation of secondary legislation ought to take
place in harmony with international law, as the Court made clear in the
International Dairy Arrangement case: the primacy of international agreements concluded by the Community over provisions of secondary Community
legislation means that such provisions must, so far as is possible, be interpreted in a manner that is consistent with those agreements.71
The important point to note though is that the idea of harmonious interpretation, for all its merits, still stops far short of importing international law lock,
stock and barrel. The very concept of harmonious interpretation suggests that
as a matter of principle, international law is excluded; it is only the Court
which can ensure, if it is so inclined, that international law be given some
weight. However, even then it is up to the Court whether it considers that
granting such weight is appropriate or desirable and, if so, how much weight
ought to be granted. So the situation is not different from that of any local
court which decides to let itself be inspired by foreign law72 or even by the
writings of highly qualified publicists: the Court remains in full command.
CONCLUSION
What this chapter has tried to suggest, in all its brevity, is that the standard
narrative concerning the relationship between public international law and EU
law is in need of reconsideration. Under the standard narrative, EU law is
supposed to be friendly in its disposition towards international law; the EU is
supposed to be open to receive international law, with there being but one
major exception, namely the law of the World Trade Organization. This, so
70
71
72
See Intertanko, note 48 above, para. 52.

See Case C-61/94, note 23 above.
For a passionate plea that openness to foreign law is an inherent element of
justice, see Sen, A., The Idea of Justice (Cambridge MA, Harvard University Press
2009).
114
most observers agree, finds its source not so much in the unwillingness of the
courts to apply WTO law, but rather in politics. First, WTO law itself is too
indeterminate and open-ended (and therewith too political) to be applied in
the Community legal order, and second, the major trading blocs have all
blocked WTO law. So there is a political injunction not to allow WTO law into
the Community legal order, and a political incentive (the incentive of reciprocity with the US and Japan) to keep it that way. If only WTO law were not
so politicized, the standard narrative sighs, the courts would happily give
effect to it.
Yet, in light of the case-law discussed above, the standard narrative lacks
plausibility. For one thing, the case-law suggests that the Court has been far
more reluctant to resort to international law than is generally assumed. While
the Court often pays lip-service to international law, when push comes to
shove it often ignores it (for instance in the cases involving treaty commitments entered into by the EUs Member States), or it refuses to go any further
than to proclaim that the relevant Community law must be read in the light of
international law. The latter is not, it should be added, particularly unfriendly
towards international law, but neither is it particularly friendly. At the very
least, the case-law as discussed above suggests the need for re-consideration
of the traditional narrative. The better view would seem to be that instead of
being particularly vlkerrechtsfreundlich in general, the EU legal order is
mostly friendly in its disposition to international law when being so coincides
with, or even strengthens, the protection of its own legal order: this would help
explain the positive attitude towards association agreements. But when international law threatens, or even only potentially threatens, the EU legal order,
the fences go up and the wagons are circled.
The standard narrative of Vlkerrechtsfreundlichkeit has served the EU
well during its first half century, but perhaps it is time for political reconsideration. Whether it wants to be or not, the EU is part of a global legal order, and
it is fair to say that this global legal order has so far proven to be highly patient
and accommodating when it concerns the peculiarities of the EU. The EU
often claims a special position, and is often granted such a special position. In
the meantime, it even manages to avoid the conclusion that its own legal order
ought to be seen as one analogous to that of a state, with the resulting injunction not to use internal rules as excuses for not giving effect to treaties. There
can be little doubt that the standard narrative helps to sell the argument that
the EU warrants special treatment in international law; but maybe the EU
should consider returning the favour and give international law its due place
in the EU legal order.
4. Vlkerrechtsfreundlichkeit as comity
and the disquiet of neoformalism: a
response to Jan Klabbers
Achilles Skordas
SUPRANATIONAL LAW AND INTERNATIONAL LAW
Jan Klabbers makes an important argument on the relationship between supranational law and international law and criticizes sharply the judicial policy of
the European Court of Justice (ECJ). He makes his points in a skilful line of
reasoning and protests in strong terms about the alleged lack of respect of the
EU for international law. Klabbers claims that the Union casts international
law in the role of the unfit parent, perhaps even an abusive parent, just as
right-wing international lawyers in the US tend to think international law is
up to no good. He insinuates a lack of vision of the EU judiciary (the EU
courts still keep the WTO at bay, for the good reason that they are instructed
to do so by their political masters) and makes some rather astonishing
comparisons on the age and maturity of the EU (with the League of Nations,
some African and Asian states, and the German Democratic Republic, where
a reference to ASEAN or to the process of Latin American integration would
be more apposite). Klabbers does not argue that the EU is on an outright collision course with international legal values and principles, but rather that its
practice is not sufficiently vlkerrechtsfreundlich. The main thread of his argument is that, in its concern to guard its autonomy, the EU seems keen on
manipulating, distorting and unilaterally re-interpreting international law in a
way with which the interpretive community of international law would not
immediately reconcile itself. Klabbers fears that a politically and legally selfconfident Union, its organs and managerial elites, might assume control of the
interpretation of international law and subvert the domain that international
lawyers consider to be their own. He develops his concept by exploring relevant ECJ case-law and concludes that the EU should give international law
its due place in the EU legal order. Klabbers is worried for the consistent
downplaying of the relevance, or even applicability, of international law and
his preference is that supranational law should accept the supremacy of international law and adopt a vlkerrechtsfreundlich monist doctrine.
115
116
Klabberss neoformalist argument1 is noteworthy and would find some

resonance in the debate on the relationship between international law and
European law. I agree with him that the Union projects its own personality and
values in the field of international legal relations, but I disagree with his thesis
that this is an unwelcome development. I contend that the relationship between
international law and Community (Union) law can be viewed either in terms
of supremacy or in terms of comity: whilst Vlkerrechtsfreundlichkeit as
supremacy is unable to cope with the complexity of the relationship,
Vlkerrechtsfreundlichkeit as comity can alleviate the concerns of countersystemic commotion in the case-law of the ECJ obviously, any criticism of
individual cases or policies of the Union notwithstanding. I further argue that
the vanguard role of European law may in fact contribute to the evolution of
international law and enhance its legitimacy in world society.
VLKERRECHTSFREUNDLICHKEIT AS SUPREMACY
Fragmentation on the Macro-Level: Supremacy in Heterarchy
Vlkerrechtsfreundlichkeit can be conceptualized as the recognition of
supremacy of international law over Union law. The supremacy principle
comes into play either in the version of the international/municipal law analogy (monism/dualism metaphor) or in the version of deployment of legal
effects within the formal or informal hierarchy2 and techniques of international law. The traditional perception of the supremacy of international law
and the systems hierarchical structure was based on the paradigm of states as
unitary actors that create and interpret international law, and of the
International Court of Justice (ICJ) as the ultimate guardian of the systems
integrity. States were considered as capable and willing to interpret and implement international law in a more or less uniform and coherent manner and
even though this was not always what happened in reality, the assumptions
were somewhat plausible. Diplomatic methods of dispute settlement, includ1
On neoformalism see Kennedy, D., Three Globalizations of Law and Legal
Thought: 18502000 in Trubek, D. and Santos, A. (eds), The New Law and Economic
Development: A Critical Appraisal (Cambridge: Cambridge University Press, 2006),
pp. 63 ff.
2
There is no formal hierarchy among the sources of international law, but it is
argued that there is a formal hierarchy expressed through the concept of jus cogens and
Art. 103 of the UN Charter; informal hierarchy is usually taken to mean the normative
relationship inherent in the lex specialis principle; see ILC Fragmentation Report,
finalized by Martti Koskenniemi, UN Doc. A/CN.4/L.682 of 13 April 2006, paras.
857, 107, 463, and conclusions, p. 250 of the Report.
Vlkerrechtsfreundlichkeit as comity and the disquiet
117
ing consultations, negotiations and mediation, were expected to facilitate the

orderly conduct of international relations and to affirm the responsibility and
authority of states over the development of international law. Change was to
be steered by consent, and the custom was sage; the discovery of coutume
sauvage3 suggested things were not as straightforward as they seemed to be.
The alleged principle of supremacy or primacy of international law over
Union law is put into question by the postmodern world societal condition, in
particular by the fragmentation of international law and global law, the disaggregation of states and the transition from an allegedly hierarchical to a heterarchical global order. Deep structural changes in law are tightly coupled with
the evolutionary maturity of global functional systems, which constitutes the
defining feature of the period of globalization. There seems to be widespread
agreement on the existence of these trends, with Neil Walker writing, for
instance, about the global disorder of normative orders,4 even though explanations and analyses differ depending on the school of sociological or political thought,5 or on the theoretical observation posts occupied by legal
scholars.6 Amartya Sen echoes a broad consensus when he argues that the
discourse on justice (and injustice) cannot be conducted only in terms of the
international but should be reframed as global and embrace the legitimate
expectations and aspirations of transnational groups and identities.7
The fragmentation of the international legal order and the ongoing process
of separation of legal regimes are also generally acknowledged, even if their
scope, significance and risks are strongly debated and contested. The
discourse on the constitutionalization of international law and global governance is anchored in the social reality of the deconstruction of the interstate
model, the de-centring of states and the rise of influence and power of the
transnational networks.8 All in all, the rigidity of the vertical distinction
3
Dupuy, R.-J., Coutume sage et coutume sauvage in Mlanges offerts
Charles Rousseau : la communaut internationale (Paris: Pedone, 1974) 7587.
4
Walker, N., Beyond Boundary Disputes and Basic Grids: Mapping the
Global Disorder of Normative Orders, (2008) 6 International Journal of
Constitutional Law 373.
5
See, for instance, Luhmann, N., The World Society as a Social System,
(1982) 8 International Journal of General Systems 1318, Habermas, J., The Divided
West (transl. by C. Cronin) (London: Polity, 2006), Hardt, M. and Negri, A., Empire
(Cambridge: Harvard University Press, 2001).
6
Posner, E., The Perils of Global Legalism (Chicago: University of Chicago
Press, 2009), Slaughter, A.-M., A New World Order (Princeton: Princeton University
Press, 2004), Fischer-Lescano, A. and Teubner, G., Regime-Kollisionen, Zur
Fragmentierung des globalen Rechts (Frankfurt-am-Main: Suhrkamp, 2006).
7
Sen, A., The Idea of Justice (Cambridge: The Belknap Press/Harvard
University Press, 2009), 12830, 388 ff.
8
See, for instance, Hamann, A. and Ruiz Fabri, H., Transnational Networks
118
between the international and the domestic has been superseded by plural horizontal legal systems and normative complexes, such as international law,
supranational law, transnational law, global law, and global administrative law,
and by their internal differentiations. The current state of functionally differentiated world society has been the outcome of accumulation of long-term
trends that came to the surface following the collapse of communism as the
competing model of a functionally non-differentiated world society. These
changes could not leave the perceptions on, and the practice of, the relationship between international law and Union law unaffected. As the supremacy
principle is one of the building blocks of the traditional order, it can be
expected that it could hardly survive if the other pillars became obsolete.
If we accept the view that self-contained legal regimes may stabilize into
auto-constitutional regimes9 and that the European Union is among them,10 it
might be argued that, by analogy with national constitutions, the
monismdualism distinction could offer a starting point for the discussion of
the relationship between European law and international law. Significantly,
there are elements of a happy relationship between international law and
domestic law, without regard to what can be considered as a monist or dualist approach.11 Modern developments seem, however, to make the distinction
obsolete and there is no point any more in giving preference to either principle over the other. Von Bogdandy graphically depicted their intellectual bankruptcy as follows: Monism and dualism should cease to exist as doctrinal and
theoretical notions for discussing the relationship between international law
and internal law [F]rom a scholarly perspective, they are intellectual
zombies of another time and should be laid to rest, or deconstructed.12 The
two doctrines are increasingly becoming irrelevant in a world of plural orders.
Instead, the question is how legal orders or special regimes perceive their relationship with each other and with general international law.
and Constitutionalism, (2008) 6 International Journal of Constitutional Law 481;
Picciotto, S., Constitutionalizing Multilevel Governance?, (2008) 6 International
Journal of Constitutional Law 457.
9
Fischer-Lescano, A. and Teubner, G., Regime-Collisions: The Vain Search
for Legal Unity in the Fragmentation of Global Law (2004) 25 Michigan Journal of
International Law 999, in particular 1014 ff.
10
Cf. also the argument of Priban, J., The Self-Referential European Polity, its
Legal Context and Systemic Differentiation: Theoretical Reflections on the Emergence
of the EUs Political and Legal Autopoiesis, (2009) 15 European Law Journal 442.
11
Denza, E., The Relationship between International and National Law in
Evans, M. (ed.), International Law, 3rd edn. (Oxford: Oxford University Press, 2010)
41138, in particular 4357.
12
Von Bogdandy, A., Pluralism, Direct Effect, and the Ultimate Say: On the
Relationship between International and Domestic Constitutional Law, (2008) 6
International Journal of Constitutional Law 400.
119
Fragmentation on the Meso-Level: Special Legal Regimes and

International Law
Fragmentation on the meso-level is defined here as the relationship between
special legal regimes and international law, and can be further analysed in
terms of proliferation of international adjudication organs, fragmentation of
the epistemic community of international law, and variability of potential
inter-regime linkages. I argue that, on the basis of the above trends, the
primacy/supremacy principle does not appear as an attractive alternative for
the determination of the relationships between special legal regimes and international law.
Proliferation of international adjudication organs
Special legal regimes take form in fragments and their organs of adjudication
operate within the limits of the jurisdiction conferred on them by the contracting parties. The constitutive instruments regulate only a narrow range within
the possible contact area between the regime and international law. The
diverse constituencies of autonomous legal regimes are unwilling or unable to
prescribe specifically how their organs of adjudication should deal with international law. The practice of the regime can be amended only by its judicial
organs themselves, or following a revision of its treaties or statutes, whereby
the failure of the contracting parties to act in this direction indicates lack of
consensus.
The proliferation of international courts and tribunals has further strengthened the Copernican turn in international legal theory. It soon became apparent that the ICJ was not the systems apex, but primus inter pares, Patriarch
but not Pope. The different bases of jurisdiction for each organ of international
adjudication change the perspective from which international law, or other
legal regimes, are viewed. International courts and tribunals do not have the
mandate to submit preliminary references to the ICJ, and their constituencies
are not willing to let them do so, therefore specialized courts are responsible
for the selection and interpretation of the relevant norms. In the absence of
overarching hierarchical coordinating mechanisms, it cannot be expected that
the World Trade Organization Dispute Settlement Body (DSB) conceive international law in the same way that the ECJ, the European Court of Human
Rights (ECtHR), the International Criminal Tribunal for the former Yugoslavia
(ICTY), or the International Centre for Settlement of Investment Disputes
(ICSID) do.
The implementation of the lex specialis principle and the doctrinal integration of special legal regimes within the overall system of international law
cannot be achieved without due regard to the impact of the asymmetry of the
jurisdiction which is exercised by the regimes and their adjudicatory organs.
120
Legal regimes with strong auto-constitutional mechanisms unavoidably view

general international law through the lenses of their own structures. Their judicial or quasi-judicial organs focus primarily on the task of constantly maintaining and/or restoring the delicate balance of interests among their
constituencies, including states,13 business and civil society, and of implementing their constituent treaties in a way that will not lead to a major crisis,
or destabilization of the system, or to the defection of member states.
This function is more convoluted compared to the task of domestic constitutional or supreme courts dealing with international law, as demonstrated by
the practice of the European Union. The ECJ has to respond to two parallel
forms of pressure, arising from the democratic principle of the municipal legal
orders, as Member States and their courts question the legitimacy of both
international law14 and European law.15 Under these circumstances it is not
practical to assume that the Court will follow a unidirectional strategy concentrating on the application of the supremacy principle of international law.
Indeed, when the ECJ interprets Union law and international law (including
human rights law and WTO law), it does so in view of the legitimacy of Union
law. Klabbers seems to consider this situation as a zero-sum game, by assuming that the strengthening of the identity of the Union is accomplished at the
expense of international law. I argue that, far from distorting the principles of
international law, the Court may well strengthen the legitimacy of the international legal order by contributing to a progressive practice on international
legal relations.
The sociological basis: epistemic community of international law
Another issue is whether the epistemic community of international law
possesses an inherent authority to establish common understandings on the
interpretation of international law, and whether Union law or WTO law prac-
13
The WTO constituency comprises diverse and overlapping groups of states
with differentiated interests, for instance ACP, the African group, APEC, EU,
Mercosur, G-90, LDCs, Small and Vulnerable Economies (SVEs), Recently Added
Members (RAMs), Low-income economies in transition, Cairns group, Tropical products group, G-10, G-20, G-33, Cotton-4, NAMA 11, Friends of Anti-dumping
Negotiations (FANs), Friends of Fish (FoFs), and W52 sponsors: http://www.wto.org/
english/tratop_e/dda_e/negotiating_groups_e.htm, last accessed on 08.03.10.
14
On the legitimacy crisis of international law from the perspective of democracy, see von Bogdandy, A., Globalization and Europe: How to Square Democracy,
Globalization, and International Law, (2004) 15 European Journal of International
Law 885; Kumm, M., The Legitimacy of International Law: A Constitutionalist
Framework Analysis, (2004) 15 European Journal of International Law 907.
15
See the Lisbon Treaty judgment of the Federal Constitutional Court of
Germany (BVerfG) of 30 June 2009.
121
titioners are expected to resort to the persuasive authority of these understandings, as Klabbers alleges. Indeed, Oscar Schachters seminal essay on the
Invisible College of International Lawyers framed the discussion on the
professional community of international law and elucidated the groups function as a unifier of the discipline.16
To begin with, adjudicators are expected to enquire or seek advice and
information, including through amicus curiae briefs, from experts or bodies on
matters which are not within their immediate field of knowledge or professional experience.17 Nevertheless, at issue here is something much more
fundamental, namely the practical definition of the epistemic community of
international law and its role with regard to judicial propriety in the interpretation and application of international law by the European Court of Justice.
One wonders whether the European Court or the WTO DSB respectively
would be well advised to adopt the international law professions doctrinal
understanding of international law. The query does seem prima facie justified,
yet, deployed in the fragmentation debate, it comes across as paradoxical.
If it is argued that unity and hierarchy of international law have to be
ensured because special legal regimes are parts of international law, it should
be inferred that an all-inclusive definition of the epistemic community of
international law is required as well. This community should encompass
WTO, EU, and human rights experts and practitioners and also scholars from
the fields of economic analysis of international law and from critical legal
studies, perhaps global law and transnational law theorists as well. As a consequence, neoformalism, enlightened or not, will not be able to maintain the
alleged core unity and purity of the doctrine, because it will be internally
exposed to the pressures of professional fragmentation from within the discipline. If the interpretive/epistemic community is narrowly defined to avoid the
pitfalls and is limited to foreign ministry bureaucrats, treaty negotiators or
government advisors, then various interpretive communities of sub-disciplines
are actually expelled, or can be expected to secede, from the epistemic
community of international law, thus enhancing the dynamics of doctrinal
fragmentation from outside the discipline. Tertium non datur.
In the democratized world society, international law forms part of a global
culture and discourse, having irreversibly escaped the corridors of state power.
Rather than cementing the status quo, whatever this may be, the diverse and
multicultural epistemic community of international law participates in the evolutionary sequence of redundancy and variation, by rejecting and re-introducing,
16
17
(1977) 72 Northwestern University Law Review 217.

Cf. Art. 13 of the WTO Dispute Settlement Understanding on the panels
right to seek information and technical advice from any individual or body which it
deems appropriate.
122
fixing and replacing, criticizing and endorsing, doctrines and concepts. Statecentric and world societal international law perspectives clash and expand the
boundaries of the field, diffuse their professional langue to the mass media and
the civil society, and, at the same time, figure as factors accelerating the tempo
of normative evolution.18 Under the circumstances of this notional experiment, there is barely any unitary top-down systemic guidance that could be
offered to the European Court. Needless to say that judicial decisions are
under the systemic critique of scholarship, which elucidates blind spots or
draws attention to gaps, inconsistencies or incompatibilities.
Variability of potential inter-regime linkages
From a policy perspective, hard or soft supremacy and formal or informal
hierarchies cannot generate a harmonization effect by themselves and cannot
initiate the resolution of normative collisions across the board. Legal regimes
do not merely pursue different objectives, but have developed their own
distinct rationalities.19 Thus, legal policy considerations should be included in
a theory of the prevention of collisions.
The interfunctional linkages and horizontal allocation of jurisdiction
among international organizations, as well as the vertical allocation between
organizations and states, require occasionally a much more complex and
subtle set of responses than the rules of general international law offer. Interorganizational competition can lead to optimum outcomes if, for instance,
regulatory authority is conferred upon the most effective structure and level,
or if the adjudicatory organs of the organizations proceed to the appropriate
teleological re-interpretation of their statutes. A set of normative and policyrelated responses should be available in order to achieve the optimal adjustment among organizations with parallel or complementary jurisdiction on the
same dispute or problem. Judicial and quasi-judicial mechanisms need to
translate these alternatives in the language of each legal regime focusing on
alternative interpretations of the norms in question.20 Thus, vanguard and
hegemonic legal regimes, such as the WTO and the EU, exercising the regimespecific principle of external self-determination, would draw and redraw their
own boundaries vis--vis each other and towards other parallel and
autonomous regulatory systems, and steer their activities in view of the co-
18
On the diversity of the professional community of international law and its

perspectives, see Kennedy, D., One, Two, Three, Many Legal Orders: Legal Pluralism
and the Cosmopolitan Dream, (2007) 31 New York University Review of Law and
Social Change 641.
19
Fischer-Lescano and Teubner, op. cit., note 6.
20
Cf. Trachtman, J., The Economic Structure of International Law (Cambridge:
Harvard University Press, 2008) 196207.
123
existence, co-operation and maintenance of the overall institutional balance.

Such regimes can be considered as hegemonic and vanguard because they
are supported by advanced functional polities, have established a clear identity and rationality of their own, are armed with effective adjudication mechanisms, regulate transnational economic activity, are aware of the existence of
an external environment of co-existing regimes and systems, and are capable
of respecting this normative environment. They constitute evolutionary
achievements setting the standards for the regional or sectoral organization of
world society.21
The fragmentation of international law and the loss of hierarchy do not
threaten the coherence of international law, but mirror the realities of world
society. As Koskenniemi and Leino argue:
The fact that the anxiety comes almost exclusively from the confines of the ICJ
highlights the way in which concern about loss of control or absence of an overall plan can perhaps be translated into the concrete worry at the Hague about loss
of control by me, absence of an overall plan under my institution.22
And then they stress:

The jurisdictional tensions express deviating preferences held by influential players
in the international arena. Each institution speaks its own professional language and
seeks to translate that into a global Esperanto, to have its special interests appear as
the natural interests of everybody. Here neither anxiety nor complacency are in
place: the conflicts do not go away by relying on reasonableness 23
In the Report on the Fragmentation of International Law, the International Law

Commission (ILC) undertook a major effort to explore the phenomenon of
fragmentation from the standpoint of general international law. The Report
identified the formal legal techniques that can help prevent collisions among
legal regimes or rule complexes, and showed that general international law
provides international and supranational courts and tribunals with various
paths for the prevention of normative conflict. Significantly, the ILC Report
concluded that though normative conflict is endemic to international law,24
21
Skordas, A., Self-determination of Peoples and Transnational Regimes: A
Foundational Principle of Global Governance in Tsagourias, N. (ed.), Transnational
Constitutionalism: International and European Models (Cambridge: Cambridge
University Press, 2007) 207, in particular 23868.
22
Koskenniemi, M. and Leino, P., Fragmentation of International Law?
Postmodern Anxieties, (2002) 15 Leiden Journal of International Law 15, 553, at p.
575 f. Italics and quotation marks in the original.
23
Ibid., 578.
24
ILC Report, 2006, para. 486.
124
the emergence of special treaty-regimes has not seriously undermined

legal security, predictability or the equality of legal subjects.25 Furthermore,
it argued that no homogeneous, hierarchical meta-system is realistically
available to do away with such problems, that international law will need to
operate within an area where the demands of coherence and reasonable pluralism will point in different directions, and, for this reason, attention should be
given to the collision norms and techniques.26 Legal scholarship has also
developed theories and suggested doctrinal avenues for the avoidance or resolution of norm collisions in international law that would maintain the unity of
international law through formal or informal norm hierarchies. 27
I will proceed on the basis of the assumption that vanguard and hegemonic
legal regimes, such as Union law, develop the appropriate internal awareness
and adaptability mechanisms that enable them to pursue successful coordination, cooperation and coexistence strategies with other sub-systems and actors
within their normative environment. Courts and tribunals of special regimes as
social structures and organs of distinct constituencies operate within their own
systems of action and under the mandate of their own statutes; and they can
follow the paths and suggestions of the ILC and of general international law
in terms of judicial strategy, but need not do so in terms of a general and
comprehensive legal obligation. Legal regimes and their dispute settlement
organs are not obliged to receive international law lock, stock and barrel, as
neoformalism suggests. International law is sometimes misconceived as an
ontic reality, whilst it is a normative system of communication coupled to
other social systems and is, to a certain degree, adaptable to the evolving structures of world society.28
I will next argue that it can be reasonably assumed that comity rather than
supremacy is at the background of such normalcy, and that tacit recourse to
this principle can effectively explain the ECJ judicial policies towards international law. Even if no homogeneous and hierarchical meta-system is available to cope with collisions, perhaps a heterarchical meta-system is taking
shape and might occasionally manage conflicts more effectively than the techniques suggested by the ILC.
25
26
27
Ibid., para. 492, italics in the original.

Ibid., para. 493, italics in the original.
See, for instance, Pauwelyn, J., Conflict of Norms in Public International
Law: How WTO Law Relates to other Rules of International Law (Cambridge:
Cambridge University Press, 2003).
28
See in general Luhmann, N., Law as a Social System (Oxford: Oxford
University Press, 2004).
125
THE INTER-REGIME CONNECTOR: COMITY AS

PRINCIPLE
The Structured Contact: Bridge and Wall Functions
Vlkerrechtsfreundlichkeit as comity can explain the relationship between
Union law and international law better than supremacy or hierarchy. Thus, the
absence of significant conflict between international law and Union law
should be attributed to the practical implementation of comity in the relationship between the two legal orders. Comity can also provide evidence that the
occasional tensions between them should not be perceived as structural
conflict, but as structured contact.
International comity is an ambiguous concept and it is often taken to
encompass forms of conduct such as courtesy, tradition, goodwill or utility, but
it is also related to the legal principle of good faith.29 The concept of comity
originated in the area of conflicts of law and can be traced back to Dutch
scholars of the second half of the 17th century, notably Christian Rodenburg,
Paulus and Johannes Voet and Ulrik Huber,30 but was further developed in
Anglo-American law, focusing on the question of slavery, by Lord Mansfield
and US Supreme Court Justice Joseph Story in the 18th and 19th centuries
respectively.31 The comity doctrine was then refined and defined by the US
Supreme Court in the Hilton v. Guyot case as follows:
Comity, in the legal sense, is neither a matter of absolute obligation, on the one
hand, nor of mere courtesy and good will, upon the other. But it is the recognition
which one nation allows within its territory to the legislative, executive or judicial
acts of another nation, having due regard both to international duty and convenience
and to the rights of its own citizens or of other persons who are under the protection
of its laws.32
This definition has been incorporated in the Restatement III of Foreign Relations
Law of the United States in para. 101 (international law defined). Furthermore,
in para. 403 (limitations on jurisdiction to prescribe), the Restatement links the
international legal principle of reasonableness to comity.33
29
Kmmerer, J. A., Comity, in Max-Planck Encyclopedia of Public
International Law (MPEPIL), MN 1, 8.
30
Yntema, H., The Comity Doctrine, (1966) 65 Michigan Law Review 9, in
particular 20 ff.
31
Paul, J., Comity in International Law, (1991) 32 Harvard International Law
Journal 1, in particular 1724.
32
159 US 113, 163-164 (1895), Justice Gray.
33
Some United States courts have applied the principle of reasonableness as a
126
As a conflicts of law principle, comity has a hybrid status, oscillating

between social practice and a sense of international legal obligation, or
between law and policy,34 but there are some voices in the literature and legal
practice advocating for its binding force.35 In his analysis and critique on US
case-law, Paul describes comity by the metaphors of bridge and wall. Comity
is a bridge because it manages conflict between sovereign spaces of law and
connects categories of law (domestic/international, public/private, law/international politics). Paul emphasizes that comity can perform the bridge-function
precisely because it is outside any of the categories it connects.36 It is also a
wall, because it separates and safeguards private interests and transactions
from public regulation.37 The bridge and wall functions of comity are appropriate for the allocation of jurisdiction among international courts and tribunals,
and, more broadly, for the coordination and decentralized self-management of
inter-regime relationships.38 The wall function affirms and safeguards the
encapsulation of the separate identity of each regime, whilst the bridge function connects the regimes to each other and to general international law, depending on whether they have developed an effective self-steering capacity and have
internalized the fundamental values of the international legal order. Thus, bridge
and wall should not be seen as antithetical, but as complementary.
In the Mox Plant case, the Arbitral Tribunal, constituted pursuant to
Annex VII of the United Nations Convention on the Law of the Sea
(UNCLOS), invoked comity when it declined jurisdiction in favor of the
ECJ. The Tribunal acknowledged that although it was possible to conclude
that at least certain provisions of the Convention do not fall within the
exclusive jurisdiction and competence of the European Communities in the
present case, it would still not be appropriate for the Tribunal to proceed
with hearings on the merits in respect of any such provisions.39 It then
requirement of comity, that term being understood not merely as an act of discretion
and courtesy but as reflecting a sense of obligation among states. This section states the
principle of reasonableness as a rule of international law. The principle applies regardless of the status of relations between the state exercising jurisdiction and another state
whose interests may be affected. While the term comity is sometimes understood to
include a requirement of reciprocity, the rule of this section is not conditional on a finding that the state affected by a regulation would exercise or limit its jurisdiction in the
same circumstances to the same extent, Restatement III, para. 403, Comment (a).
34
Paul, note 31 above, at 478.
35
Kmmerer, Comity, MN 8, in MPEPIL.
36
Paul, note 31 at 54.
37
Paul, note 31 at 70 ff.
38
Worster, W. T., Competition and Comity in the Fragmentation of
International Law, (2008) 34 Brooklyn Journal of International Law 119.
39
Annex VII Arbitral Tribunal, Mox Plant case (Ireland v. the UK), Order No.
3, 24 June 2003, para. 26 (http://www.pca-cpa.org, last accessed on 08.03.10).
127
emphasized that the resolution of the essentially internal problems within

the European Community legal order may involve decisions that are final
and binding.40 And then the Order reads:
In the circumstances, and bearing in mind considerations of mutual respect and
comity which should prevail between judicial institutions both of which may be
called upon to determine rights and obligations as between two States, the Tribunal
considers that it would be inappropriate for it to proceed further with hearing the
Parties on the merits of the dispute in the absence of a resolution of the problems
referred to. Moreover, a procedure that might result in two conflicting decisions on
the same issue would not be helpful to the resolution of the dispute between the
Parties.41
Thus the Tribunal did not frame the issue in terms of some sort of normative
hierarchy but preferred to manage the potential collision on the level of allocation of jurisdiction, comity and appropriateness. It is astonishing that the
ILC Fragmentation Report, which looks extensively at the Mox Plant dispute
and the decisions of the courts and tribunals involved, omits any reference to
the principle of comity. It is also worth mentioning that the UNCLOS has
introduced an advanced system for the avoidance of collisions with other legal
regimes, and respects, under conditions, the freedom of the parties to settle
their disputes according to rules of other general, regional or bilateral agreements (Art. 282), and to suspend or modify the operation of provisions of the
Convention between them, as long as they abide by the Conventions fundamental constitutional principles (Art. 311, para. 3).42 This is a fine example of
inter-regime comity in action. Wai,43 and Scott and Wai,44 developed the
concept of transnational comity for the coordination and avoidance of
conflicts among parallel regulatory regimes, including trade, investment and
40
41
42
Ibid., para. 27.

Ibid., para. 28, my italics.
provided that such agreements shall not affect the application of the
basic principles embodied herein, and that the provisions of such agreements do not
affect the enjoyment by other States Parties of their rights or the performance of their
obligations under this Convention.
43
Wai, R., Conflicts and Comity in Transnational Governance: Private
International Law as Mechanism and Metaphor for Transnational Social Regulation
Through Plural Legal Regimes, in Joerges, C. and Petersmann, E.-U. (eds),
Constitutionalism, Multilevel Trade Governance and Social Regulation (Oxford: Hart
Publishing, 2006), 229.
44
Scott, C. and Wai, R., Transnational Governance of Corporate Conduct
through the Migration of Human Rights Norms: The Potential Contribution of
Transnational Private Litigation in Joerges, C., Sand, I. J. and Teubner, G. (eds),
Transnational Governance and Constitutionalism (Oxford: Hart Publishing 2004),
287.
128
environmental legal regimes. The authors argue that comity enables the
restrictive interpretation and application of cross-border investment rights, so
that account might be taken of environmental, social and human rights
concerns of the host states.
In the Kadi v. Council and Commission case before the Court of First
Instance (now General Court) of the European Union, the Commission
invoked the principle of comity in the relationship between Community law
and international law, and in particular, by the implementation of UN Security
Council resolutions relevant to the fight against terrorism: The Commission
further notes that the principle of comity of nations obliges the Community to
implement those measures inasmuch as they are designed to protect all States
against terrorist attacks.45 Neither the General Court nor the ECJ reacted
openly to this argument, but the evolving practice indicates that the principle
of comity plays a role in structuring the relationship between Union law and
international law. Because of its particular nature as a quasi-legal principle
located between the social and the legal, comity does not need to be explicitly
invoked by the courts.46 It suffices to affirm the patterns corresponding to it,
such as the closure of, and the interaction between, legal regimes, as well as
the tacit communication, mutual consideration and self-restraint between
organs of adjudication. Semantics are more important than explicit statements,
and comity may in fact characterize the inter-regime relationship, even if
primacy of some form is evoked in the process.47 Simmering tensions, contestation and occasional normative clash are not excluded and may take the form
of lateral normative pressure or interpenetration among the two normative
systems, but these strains are not expected to reach the level of outright
systemic crises. Due to the cognitive expectations it generates,48 comity
enables legal regimes to choose among a variety of potential avenues that can
satisfy the multifaceted relationships that may crystallize between them.
We can assume that there is no straightforward distinction between coordination through primacy or through comity, but a process of crossing-over from
the former principle to the latter. We can put forward the hypothesis that the
more a special legal regime develops auto-constitutional features, the more it
can be expected to rely on comity in order to determine its relationship with
45
46
Case T-315/01 [2005] ECR II-3649, para. 163.

Cf. the famous case Somerset v. Stewart 98 English Reports 499 (1772): Lord
Mansfield, who did not explicitly refer to comity but effectively structured the exceptions to the principle.
47
So the ECJ judgment in Joined Cases C-402/05 P and C-415/05 P Kadi [2008]
ECR I-6351 and the analysis below.
48
On cognitive and normative expectations, and on the prevalence of the cognitive dimension in the law of world society, see Luhmann, N., Rechtssoziologie, 2nd
edition (Opladen: Westdeutscher Verlag, 1983), 4053, 33343.
129
other legal regimes and with general international law. Paradoxically, but not
unexpectedly, comity enables even the invocation of primacy of international
law, or the recognition of informal normative hierarchies, if this is opportune
in the given setting.
Fragmentation on the Micro-Level: Comity as a Coordination
Mechanism
The significance and impact of the ECJ case-law on international law can be
better assessed if viewed through the lenses of comity. Following Klabberss
points, I will briefly survey four situations and sketch out an argument in
response, because a systematic discussion would be beyond the scope of the
present chapter.
World Trade Organization law
I agree with Klabbers that the lack of direct effect of the WTO rules is an
undesirable feature of international economic relations, and legitimate criticism
can be levelled against the EU for not pursuing actively the further opening of
the world trade system. Still, the ECJ follows closely the patterns of the WTO
system and in general does not behave inappropriately or counter-systemically. EU case-law on direct effect is not in breach of the structural principles
of the world trade system. Article XVI:4 of the Agreement Establishing the
WTO49 introduces an obligation of result and does not require the domestic
legal orders to give direct effect to WTO law. Consequently, the European
Union, US and Japanese legal systems have all denied direct effect to the WTO
Agreements, to the GATT and to panel and Appellate Body rulings.50 Some
legal systems, including the US and EU law, have developed instead alternative
legal avenues for the protection of private interests,51 and the ECJ enters into a
muted dialogue with, and accepts the indirect effect of, the WTO law.52
Koutrakos explores the evolution of the relevant ECJ jurisprudence and
49
This provision reads as follows: Each Member shall ensure the conformity of
its laws, regulations and administrative procedures with its obligations as provided in
the annexed Agreements.
50
Matsushita, M., Schoenbaum, T. and Mavroidis, P., The World Trade
Organization, 2nd edition (Oxford: Oxford University Press, 2006) 89102; Tancredi,
A., EC Practice in the WTO: How Wide is the Scope for Manoeuvre?, (2004) 15
European Journal of International Law 933, in particular 941.
51
Mavroidis, P. and Zdouc, W., Legal Means to Protect Private Parties interests in the WTO, (1998) 1 Journal of International Economic Law 407.
52
Bronckers, M., From Direct Effect to Muted Dialogue Recent
Developments in the European Courts Case Law on the WTO and Beyond, (2008) 11
Journal of International Economic Law 885.
130
demonstrates the various and complex pathways through which the WTO law
penetrates the Union legal order. The Court proceeds pragmatically by taking
into account the features of the GATT/WTO system, the scope for negotiation,
the obligations arising under the Dispute Settlement Body (DSB) decisions,
and other similar factors.53 The difficulties with adopting direct effect as a
matter of judicial policy are evidenced by the overall structure of the Dispute
Settlement Understanding (DSU), which has integrated consultations and
negotiations within the dispute settlement mechanisms. In the course of the
dispute settlement procedures, and following the adoption of the reports, the
parties may conclude formal or informal agreements for the settlement of the
disputes and the implementation of the rulings: agreements infra-ordinem,
extra-ordinem and praeter legem, or extra ordinem and contra legem. With the
exception of the contra legem category, these agreements are sanctioned by
the system and are integrated in its rationale.54
This brings us to the main structural issue, which is that domestic courts
lack any role in, and non-state actors are largely excluded from, the WTO
adjudication. The executives of the Member States are the main players in the
DSU process, and there is no place for preliminary references or individual
applications in the WTO dispute resolution.55 Even the cautious move of the
panels and the Appellate Body to open the door to amicus curiae briefs by
NGOs met with stiff resistance, mainly from developing states.56
The EU is at fault for being caught in the inter-state paradigm and in the
idea of diplomatic protection.57 The political instances of the Union have not
sought to reform the WTO system and strengthen the particular mechanisms
promoting global economic integration, but have deferred too much to the
structures and categories of international law and to inter-state trade diplomacy. Had the ECJ chosen to challenge this paradigm and unilaterally introduced the direct effect, it would not have succeeded in reforming the WTO,
but would have intensified the competitive pressures exercised by economic
actors of third states on European producers in the internal market. This might
be good or bad, depending on the observers perspective, but it is a domestic
Union issue and does not suggest contempt for international law.
53
Koutrakos, P., EU International Relations Law (Oxford: Hart Publishing,
2006) 25199.
54
See Tancredi, note 50 above, in particular 949 ff.
55
Cf. Schleyer, G., Power to the People: Allowing Private Parties to Raise Claims
before the WTO Dispute Resolution System, (1997) 65 Fordham Law Review 2275.
56
See the Minutes of Meeting of the General Council on November 22, 2000,
WT/GC/M/60, and the standpoints of the Informal Group of Developing Countries; see
also Umbricht, G., An Amicus Curiae Brief on Amicus Curiae Briefs at the WTO
(2001) 4 Journal of International Economic Law 773.
57
See Mavroidis and Zdouc, note 51 above at 432.
131
Economic freedoms and human rights

Klabbers is critical of the human rights protection in the Union system and
argues that in the Schmidberger case58 the Courts methodology posited a
clear hierarchy, rendering human rights subservient to free movement. This
critique fails to differentiate between technique and rank and in fact censures
not just the case-law in question but the Unions distinctive evolutionary path
to the protection of fundamental rights. The particularities of the progressive
development of human rights in the Union legal order are linked to the path
dependency of Union law, as seen in its mutation from multilateral agreement
into a constitutional order by case law59 and Treaty amendment. As the integration process expanded into ever more areas or activities traditionally exercised by states, human rights safeguards developed from the bottom-up as the
outcome of pressure exercised by the national constitutional courts, in particular by the Federal Constitutional Court of Germany, against the supremacy
doctrine of the ECJ.60 The incorporation of the Charter of Fundamental Rights
in the Treaty of Lisbon and the envisaged accession of the Union to the
European Convention on Human Rights is the latest stage of this long evolution.61 The idiosyncratic features of this development can explain the unconventional pathways through which human rights were integrated into the
Unions structure over time.
58
59
C-112/00, Schmidberger v. Austria [2003] ECR I-5659.

See ECJ, Opinion 1/91, on the draft agreement between the Community, on
the one hand, and the countries of the European Free Trade Association, on the other,
relating to the creation of the European Economic Area [1991] ECR I-6079: In
contrast, the EEC Treaty, albeit concluded in the form of an international agreement,
none the less constitutes the constitutional charter of a Community based on the rule of
law. As the Court of Justice has consistently held, the Community treaties established
a new legal order for the benefit of which the States have limited their sovereign rights,
in ever wider fields, and the subjects of which comprise not only Member States but
also their nationals , para. 21 of the Opinion.
60
See in detail Craig, P. and de Brca, G., EU Law: Texts, Cases, and Materials,
4th edition (Oxford: Oxford University Press, 2008) 345 ff. See also the ECJ Opinion
2/94 of 28 March 1996 on the accession by the Community to the European
Convention for the Protection of Human Rights and Fundamental Freedoms, [1996]
ECR I-1759: Furthermore, it is well settled that fundamental rights form an integral
part of the general principles of law whose observance the Court ensures. For that
purpose, the Court draws inspiration from the constitutional traditions common to the
Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they
are signatories. In that regard, the Court has stated that the Convention has special
significance, para. 33 of the Opinion.
61
See Pernice, I., The Treaty of Lisbon and Fundamental Rights in Griller, S.
and Ziller, J. (eds), The Lisbon Treaty: EU Constitutionalism Without a Constitutional
Treaty? (Wien: Springer, 2008) 23556.
132
In the Schmidberger case, the legal issue was indeed formulated in terms of
a rule-exception frame, with the freedom of movement of goods figuring as
the rule and the freedom of expression and assembly as the exception/restriction. Nonetheless, this is a matter of jurisdictional technique and not a matter
of normative substance or rank. The ECJ had to respond to a request for a
preliminary reference submitted by the Oberlandesgericht Innsbruck asking
for an interpretation of the Community law on the limits of the freedom of
movement of goods. The Court had to respond to the questions submitted by
the national court and it framed its judgment accordingly. The ECJ clearly
rejected hierarchical thinking. As Tridimas emphasized, the Court viewed the
free movement of goods and the freedom of assembly and association as being
of equal constitutional ranking it pointed out that neither of the competing
values was absolute.62 The Court juxtaposed the freedoms and interpreted
them side-by-side by underscoring their relative normativity. The two freedoms do not collapse into each other and remain distinct but interlinked. The
judgment acknowledged that the exercise of both the freedom of movement of
goods, as well as the freedoms of expression and assembly, can be restricted
for the reasons provided for in the Treaty for the former and in the ECtHR for
the latter.63 And then it reads as follows:
In those circumstances, the interests involved must be weighed having regard to all
the circumstances of the case in order to determine whether a fair balance was
struck between those interests.64 The competent authorities enjoy a wide margin of
discretion in that regard. Nevertheless, it is necessary to determine whether the
restrictions placed upon intra-Community trade are proportionate in the light of the
legitimate objective pursued, namely, in the present case, the protection of fundamental rights.65
This is not establishment of hierarchy, but praktische Konkordanz between

fundamental freedoms of equal rank, through recourse to the proportionality
test.66 The constitutional system of the Union, far from instrumentalizing and
62
Tridimas, T., The European Court of Justice and the Draft Constitution: A
Supreme Court for the Union? in Tridimas, T. and Nebbia, P. (eds), European Union
Law for the Twenty-First Century, Vol. I (Oxford: Hart Publishing 2004), 137.
63
C-112/00, [2003] ECR I-5659, paras. 7880.
64
Ibid., para. 81.
65
Ibid., para. 82.
66
On this doctrine of German constitutionalism, see the jurisprudence of the
Federal Constitutional Court of Germany, BVerfGE 83, 130 (143), which explicitly
links proportionality with Konkordanz in order to balance two constitutional goods of
equal rank: Gert die Kunstfreiheit mit einem anderen Recht von Verfassungsrang in
Widerstreit, mssen vielmehr beide mit dem Ziel der Optimierung zu einem
angemessenen Ausgleich gebracht werden. Dabei kommt dem Grundsatz der
133
degrading human rights, raised economic freedoms into an equal rank, which
is a development that draws on the idea of the protection of property as a
human right under the ECHR.67 Furthermore, the market freedoms are also
linked to the Charter of Fundamental Rights68 which also protects the freedom
to choose an occupation and the right to engage in work (Article 15), the freedom to conduct a business (Article 16), the right to property, including intellectual property (Article 17), and the freedom of movement and of residence
(Article 45).
The interconnectedness of human rights and transnational economic freedoms, and the methodology employed by the ECJ for the management and
resolution of normative collisions, is perhaps the main evolutionary achievement of Union law. The Union and the Court supplemented the human rights
system of international law with additional transnational freedoms that
sustain, as far as possible, prosperity and social peace and safeguard human
dignity by ensuring that individuals would not be excluded from the sphere of
economic activity as a result of the arbitrariness of the political power holders.
This system can serve as a model for the expansion and deepening of international legal and economic relations outside the toolbox of international law.69
The Union legal order has exercised comity by serving well the broader objectives of the international legal order.
Community (Union) law and customary international law the Racke
case
Klabbers correctly points out the dearth of satisfactory analysis on the
Verhltnismigkeit besondere Bedeutung zu [...]. Auerdem ist zu beachten, da die
Kunstfreiheit das Menschenbild des Grundgesetzes ebenso mitprgt, wie sie selbst von
den Wertvorstellungen des Art. 1 Abs. 1 GG beeinflut wird [...]. Bei Herstellung der
geforderten Konkordanz ist daher zu beachten, da die Kunstfreiheit Ausbung und
Geltungsbereich des konkurrierenden Verfassungsrechtsgutes ihrerseits Schranken
zieht [...]. All dies erfordert eine Abwgung der widerstreitenden Belange und verbietet
es, einem davon generell und sei es auch nur fr eine bestimmte Art von Schriften
Vorrang einzurumen.
67
See Article 1 of the First Protocol to the ECHR, as amended by the 11th
Protocol, ETS No. 9 (ETS No. 155).
68
The Union contributes to the preservation and to the development of these
common values while respecting the diversity of the cultures and traditions of the
peoples of Europe as well as the national identities of the Member States and the organisation of their public authorities at national, regional and local levels; it seeks to
promote balanced and sustainable development and ensures free movement of persons,
services, goods and capital, and the freedom of establishment, recital 3 of the preamble of the Charter, OJ C 303/1, 14 December 2007.
69
Petersmann, E.-U., Time for a United Nations Global Compact for
Integrating Human Rights into the Law of Worldwide Organizations: Lessons from
European Integration, (2002) 13 European Journal of International Law 621.
134
clausula rebus sic stantibus in the ECJ Racke case,70 but his conclusions that
the Court dramatically [substituted] its own version of international law for
an international law that few international lawyers would recognize and that
the reasoning of the ECJ was on the side of less, and not more, plausibility,71
is too sweeping. I argue that, while the Court chose in effect the right course
of judicial action, it was too hesitant to fully develop a dynamic-evolutionary
interpretation of international law. It thus missed an opportunity to shape the
rebus sic stantibus doctrine for situations of armed conflict.
The Court gave a preliminary ruling on the legality of suspension, with no
prior notification or waiting period, of the Cooperation Agreement between
the Community and the (then) Socialist Federal Republic of Yugoslavia. The
Court reasoned that international customary law as codified in Article 62(1) of
the Vienna Convention on the Law of Treaties enabled under conditions the
suspension and termination of treaties for fundamental change of circumstances. The judgment pointed out that the two conditions were fulfilled: first,
the maintenance of a situation of peace in Yugoslavia was an essential basis
for the consent of the parties to be bound; second, that there was no manifest
error of assessment by the Council when it decided that the pursuit of hostilities radically changed the conditions under which the agreements were
concluded.72
An argument in favour of the legality of suspension could be based on the
law of international state responsibility. According to Article 16 of the ILC
articles, a State which aids or assists another State in the commission of an
internationally wrongful act by the latter is internationally responsible for
doing so73 It is arguable that a radical change of the conditions may exist,
if the continuation of the performance would result in an illicit assistance, by
strengthening the economy of the target state that perpetrates a wrongful act.
Kokott and Hoffmeister made the case that Yugoslavia committed acts of
aggression against Croatia after it achieved independence on 8 October 1991,
therefore a radical change of circumstances could be based upon that fact.74
However, it is questionable whether Croatia achieved independence and
statehood on that date, as the SFRY was still in the process of dissolution at
70
71
C-162/96, Racke v Hauptzollamt Mainz, [1998] ECR I-3655.

See also for further comments Klabbers, J., Case Note, (1996) 36 Common
Market Law Review 179.
72
Case C-162/96 Racke, note 70 above, paras 526.
73
UN General Assembly Res. 56/83, 28.01.2002, on responsibility of states for
internationally wrongful acts.
74
Kokott, J. and Hoffmeister, F., Case Note, (1999) 93 American Journal of
International Law 205, in particular 208 f.
135
least until 29 November 1991.75 It is more plausible to assume that in October

and November 1991, Yugoslavia violated the right of self-determination of the
people of Croatia; this wrongful conduct would have also justified the suspension and termination of the Cooperation Agreement by the Community for the
reason stated above.
The ECJ did not sufficiently stress the gaps and ambiguities with regard to
the implementation of rebus sic stantibus doctrine during armed conflict. In
para. 336 on fundamental change of circumstances, the Restatement III
underscores the existing uncertainties with regard to the impact of hostilities
on international agreements.76 Furthermore, according to Article 73 of the
Vienna Convention on the Law of Treaties (VCLT),77 the provisions of the
present Convention shall not prejudge any question that may arise in regard to
a treaty from a succession of States or from the international responsibility of
a State or from the outbreak of hostilities between States. The ILC
Commentary on draft Article 69 VCLT states that accordingly, the
Commission concluded that it was justified in considering the case of an
outbreak of hostilities between parties to a treaty to be wholly outside the
scope of the general law of treaties to be codified in the present articles; and
that no account should be taken of that case or any mention made of it in the
draft articles.78 It appears that the Commentary limits the exception from the
scope of the Treaty only to the parties directly involved in the hostilities, and
not to third parties, which should in principle be considered as bound by its
rules. Further, and according to Article 75 VCLT, the provisions of the present
Convention are without prejudice to any obligation in relation to a treaty
which may arise for an aggressor State in consequence of measures taken in
conformity with the Charter of the United Nations with reference to that
States aggression. The Restatement III also adds that in any event, the
victim of aggression in violation of Article 2(4) of the Charter can surely be
justified in treating treaty obligations as suspended and that the aggressor
may not invoke his own unlawful act as a basis for exemption from the obligations of treaties and would be liable for consequent violation of treaty obligations (as well as for violation of the Charter), but not for violation of an
agreement of the type not applicable during hostilities.79
75
Opinion No. 1 of the Badinter Arbitration Commission, ILM 31 (1992), 1494,
adopted on the above date and published on 7 December 1991. The Commission also
noted that the recourse to force has led to armed conflict between the different
elements of the Federation, ibid. Cf. also the ambiguities of Opinion No. 3, ibid., 1499,
adopted on 11 January 1992.
76
Comment (e), and Reporters Note no. 4.
77
1155 UNTS 331.
78
YbILC 1966, Vol. II, 268, my italics.
79
Restatement III, para. 336, Reporters Note no. 4.
136
It seems that Article 75 VCLT should be understood broadly as encompassing not only the very rare cases of determination of aggression under
Article 39 of the UN Charter, and the equally rare clear-cut situations of armed
attack justifying recourse to the right of self-defence, but also Chapter VII
determinations as a whole, including threats to peace and breaches of peace.
In a dynamic-evolutionary interpretation of the VCLT, and depending on the
context, agreements with the state which is the source of the threat to the peace
could be legitimately suspended or terminated not only in cases of collective
sanctions imposed by the UN but also when the existence of the threat to peace
subverted the essential basis for the consent of the parties. This might
happen, if the consent had been given towards a peace-loving state, which
later reversed its policies. Such measures are taken in conformity with the
Charter and not against it, unless they constitute means of an arbitrary
discrimination against a trading partner and are unrelated to the preservation
of peace.
The need to restore peace may radically transform the extent and nature of
obligations still to be performed under the treaty by rendering peace-making
efforts more onerous. In the case of the Community and the war in Yugoslavia,
the crucial point was not just unilateral politics or even a political question
doctrine. The Community and the Member States were authorized by the
United Nations to play a steering and leading role for the restoration of peace
as agents of global policies under Chapters VII and VIII80 and should have
the capacity to act flexibly in view of the evolving situation in advance of
further UN measures. The Community measures were among the first steps
towards the comprehensive management of the crisis by the United Nations.81
Viewed from this angle, the existence of a threat to international peace
cannot be irrelevant to the assessment of a fundamental change of circumstances. The ECJ failed to articulate clearly the reasoning behind its judgment
and make the case for a progressive and novel interpretation of the respective
provisions of the VCLT. Nonetheless, this does not mean that the Community
did not act vlkerrechtsfreundlich, or that the Court had not taken the right
approach: by initiating a practice of suspension and termination of cooperation
agreements on the basis of fundamental change of circumstances in times of
hostilities and threats to the peace, the Community acted in comity towards
the international legal order and devised an instrument for early crisis management.
80
81
UNSC Res. 713/1991, para. 7 of the Preamble.

Cf. UNSC Res. 757/1992 of 30 May 1992.
137
The Kadi and Al Barakaat case

One of the main reasons for the confusion surrounding the ECJ judgment in
the Kadi and Al Barakaat v. the Council and the Commission case82 is that the
Court was expected to affirm some strong or weak form of supremacy of international law over European law. By establishing the relationship of the two
legal orders on the principle of comity, the ECJ did exactly the opposite.
Setting apart the perspective of frustrated academic expectations, the surprising aspect of the judgment and of the follow-up practice of the Unions political instances is how carefully they designed the relationship with the UN
Charter and the Security Council in order to avoid normative collisions. The
structuring of the relationship between European law and international law is
neither dualist nor monist; it is a horizontal ordering based on comity and
its two functions, wall and bridge. Horizontality does not mean
Gleichschaltung of status, nor does it exclude the respect for, or primacy of,
fundamental rules and principles of international law as tools for bridging.
Horizontal relations are compatible with the recognition of authority because
they are based on mutual respect and systemic interlinkage. Respect is, nevertheless, not founded on subordination, but on contestation and competition in
an open horizon of evolution and normative change.
Through the wall function, Union law performs its normative closure and
draws its boundaries vis--vis international law. Affirming and claiming its
own separate identity, and rejecting the piercing of its veil through hierarchy,
means that Union law is not an accidental rule complex, or an epistemological
category, but a legal regime and, in fact, an auto-constitutional/transnational/supranational legal regime. The bridge function presupposes the
closure: one cannot bridge unless one has the capacity to realize what exists
beyond ones boundaries, and unless one has the will to select from the
systems normative environment, and then decide whether to respect or to
challenge other regimes or rule complexes or participate in their further
development. The wall and bridge functions of the comity principle find
their clear expression in the ECJ judgment in the Kadi case and in the
Opinion of the Advocate General. The wall function as the identity-building
dimension of comity is visible in the judgment. Here, the Court makes a sharp
distinction between a UN Security Council resolution under Chapter VII of
the Charter, which cannot be reviewed by the Community judicature for lack
of jurisdiction, even if that review were to be limited to examination of the
82
Joined Cases C-402/05 P and C-415/05 P, [2008] ECR. I-6351. See also the
Opinion of Advocate General Poiares Maduro, of 16 January 2008 (ibid). For a
comprehensive presentation, see Tridimas, T. and Gutierrez-Fons, J., EU Law,
International Law, and Economic Sanctions against Terrorism: The Judiciary in
Distress? (2009) 32 Fordham International Law Journal 660.
138
compatibility of that resolution with jus cogens,83 and the EU implementing

legislation, whereby:
[T]he obligations imposed by an international agreement cannot have the effect of
prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review in the
framework of the complete system of legal remedies established by the Treaty.84
This sharp distinction constitutes the basis upon which the separate identity of
the two systems is based, but it is indeed irritating for international lawyers for
it to be said that the UN Charter is just an international agreement among
others.
Rejecting the argument that Community acts implementing Security
Council resolutions should enjoy immunity from judicial control, the judgment reads:
Nor can an immunity from jurisdiction for the contested regulation with regard to
the review of its compatibility with fundamental rights, arising from the alleged
absolute primacy of the resolutions of the Security Council to which that measure
is designed to give effect, find any basis in the place that obligations under the
Charter of the United Nations would occupy in the hierarchy of norms within the
Community legal order if those obligations were to be classified in that hierarchy.85
And then:
[ex] Article 300(7) EC [now Article 351 TFEU] provides that agreements concluded
under the conditions set out in that article are to be binding on the institutions of the
Community and on Member States.86
Thus, by virtue of that provision, supposing it to be applicable to the Charter of the
United Nations, the latter would have primacy over acts of secondary Community
law [].87
That primacy at the level of Community law would not, however, extend to primary
law, in particular to the general principles of which fundamental rights form part.88
The normative closure of the Union law, as illustrated by the wall function, is
only the one aspect of the Courts reasoning; the bridge function demonstrates
83
84
85
86
87
88
Joined Cases C-402/05 P and C-415/05 P Kadi, ibid., para. 287.

Ibid., para. 285.
Ibid., para. 305.
Ibid., para. 306.
Ibid., para. 307.
Ibid., para. 308.
139
that despite, or because of, the walling, direct collisions are to be rather
improbable. The bridge is established by the Court on two levels: first, by
accepting the primacy of the UNSC resolutions in international law,89
followed by its statements that the European Community must respect international law in the exercise of its powers and that a measure adopted by the
Community must be interpretedin the light of the relevant rules of international law,90 and second by specifically circumscribing the discretion of the
political organs of the Community by the implementation of the judgment.
Even more important for the bridging function is this second dimension. At
the outset, the Court decided that the contested regulation had violated the
rights of the defence, in particular the right to be heard, and the right to effective judicial review, which is linked to the obligation of the Community to
communicate the grounds to the affected persons.91 Then, by indicating the
action that the Community should take, the Court emphasized that the
Community cannot be required to communicate the grounds, or hear the
persons concerned before their names are entered into the list for the first
time,92 because such prior communication would be liable to jeopardise the
effectiveness of the freezing of funds and resources imposed by that regulation.93 Such measures must have a surprise effect and apply with immediate effect.94 And then:
In addition, with regard to a Community measure intended to give effect to a resolution adopted by the Security Council in connection with the fight against terrorism, overriding considerations to do with safety or the conduct of the international
relations of the Community and of its Member States may militate against the
communication of certain matters to the persons concerned and, therefore, against
their being heard on those matters.95
The Court was clear that the invocation of concerns relating to national security and terrorism should not cause prejudice to the principle of effective judicial protection.96 In this case, it is
the task of the Community judicature to apply, in the course of the judicial review
it carries out, techniques which accommodate, on the one hand, legitimate security
concerns about the nature and sources of information taken into account in the
89
90
91
92
93
94
95
96
Ibid., para. 288.

Ibid., para. 291.
Ibid., paras 33437.
Ibid., paras 338, 341.
Ibid., para. 339.
Ibid., para. 340.
Ibid., para. 342.
Ibid., para. 343.
140
adoption of the act concerned and, on the other, the need to accord the individual a
sufficient measure of procedural justice.97
Finally, the Court annulled the contested regulation, as far as the applicants
were concerned, but maintained its effects for three more months in order to
prevent any irreversible prejudice to the anti-terrorist policies of the UN
Security Council and the EU.98
The comitys bridging function is also visible in the follow-up practice of
the Community, which evolves in parallel with the practice of the UN Security
Council. UNSC Resolution 1822/2008, which was adopted on 30 June 2008,
that is before the publication of the Kadi judgment on 3 September 2008, but
is not referred to by the judgment, introduced important reforms in the listing
process. The resolution provided that, when proposing names to the Sanctions
Committee, the UN Member States shall identify those parts of the statement
of case that may be publicly released, including for use by the Committee for
development of the summary described in paragraph 13 below or for the
purpose of notifying or informing the listed individual or entity, and those
parts which may be released upon request to interested States.99 The Council
further directs the Sanctions Committee to make accessible on the
Committees website narrative summaries of reasons for listing for entries that
were added to the Consolidated List before the date of adoption of this resolution.100 Thus, the Security Council had already decided to publicly release
narrative summaries, and notify individuals concerned of the reasons for the
measures taken, when the Kadi judgment was announced.
Three months after the said judgment, the Commission adopted the 101st
amendment of the Council Regulation 881/2002, as Regulation (EC) No.
1190/2008.101 After communicating the narrative summaries of reasons
provided by the Sanctions Committee to Kadi and to the Al Barakaat
Foundation, receiving their comments, and having carefully considered the
comments received, the Commission decided that the listing was justified for
reasons of association with Al Qaeda. The case completed a full circle.
Moreover, the Council amended the main body of the Council Regulation
(EC) No. 881/2002 on restrictive measures against persons and entities associated with Al Qaeda and the Taliban. Council Regulation (EU) No.
1286/2009102 introduced a system complying with the requirements of the
97
98
99
100
101
102
Ibid., para. 344.

Ibid., paras 37273, 376.
UNSC Res. 1822/2008, para. 12.
Ibid., para. 13.
[2008] OJ L 322/25.
[2009] OJ L 346/42.
141
Kadi judgment that provides for the communication of the statement of

reasons to the persons affected by the measures and offers them the opportunity to express their views; the Regulation also designed a system for the cooperation between the Commission and the Sanctions Committee of the UN
Security Council. The Office of the Ombudsman, the delisting procedures, and
the structuring of cooperation between Member States and the UN Security
Council, as provided for by UNSC Res. 1904/2009, create a system for the
management of potential collisions. The bridge was therefore effectively built,
and it does not seem that it will lead to the weakening of the sanctions regime.
In her review of the Kadi judgment, Grinne de Brca sharply criticized the
reasoning of the Court for its allegedly chauvinist and parochial tones.103
She also argued that, by focusing only on European legal principles and
values, the Court failed to develop some channels for the mutual influence of
the EU and the UN legal orders.104 De Brca also argued that, in the allegedly
inward-looking105 Kadi judgment, the ECJ did not follow the dialogic
approach106 of the Federal Constitutional Court of Germany in the Solange
judgment, but rather the unilateralism of the US judicature with regard to
international law. She fears that this judicial attitude could encourage other
states to assert their local understandings of human rights and their particular
constitutional priorities over international norms and over Chapter VII resolutions of the Security Council.107
To begin with the last argument, we should not disregard the elephant in the
room. Authoritarian states and hierarchical societies do not need the encouragement of the Kadi judgment to project their local understanding of human
rights internationally; they already do it aggressively enough within the UN
system, including the Human Rights Council, and do not hesitate to violate
Chapter VII resolutions without recourse to any legally delicate arguments, as
Iran and North Korea systematically do. It is more fruitful to take a look at the
substantive values promoted by the Court and the Union, and take into account
the dynamics of proliferation of legal standards in world society. The case-law
of independent rule of law courts municipal, regional or transnational is an
invaluable source of unilateral international practice for the stabilization and
evolution of human rights law. There is no reason why the European legal
103
De Brca, G., The European Court of Justice and the International Legal
Order after Kadi, (2009) Jean Monnet Working Paper 01/09, New York University, 4
(http://centers.law.nyu.edu/jeanmonnet/papers/09/090101.pdf, last accessed on
08.03.10).
104
Ibid., 48.
105
Ibid., 46.
106
Ibid., 49.
107
Ibid., 48.
142
order should not contribute to this practice, if it does so in a smart way that
strengthens the legitimacy of the Security Council without weakening its
authority. As to the dialogic approach, it may be more about form than
substance. Usually, and apart from the institutionalized forms of dialogue, for
instance preliminary references, the courts and tribunals decide, but do not
negotiate. Transgovernmental networks of judges and legal practitioners may
debate issues and search for new ideas and solutions; yet judicial decisions are
by necessity unilateral, because they thicken the opinions of the judges into a
final and unique normative act. In the Solange case, the Federal Constitutional
Court indeed addressed itself indirectly, but still unilaterally, to its counterpart
in the Community system but there is no counterpart for the ECJ in the UN
system, at least for the set of cases we discuss here. Still, there is something
more appealing that emerged from the Kadi judgment, and this is the muted
dialogue between the Community and the Security Council in the form of
mutual observation and consideration and of parallel steps taken by both
systems to address the rights of persons listed by the UN Sanctions
Committee. Advocate General Maduro made a good point when he explained
how the Community values can find access to the Security Council, the hegemonic organ par excellence of the international community:
As Members of the United Nations, the Member States, and particularly in the
context of the present case those belonging to the Security Council, have to act in
such a way as to prevent, as far as possible, the adoption of decisions by organs of
the United Nations that are liable to enter into conflict with the core principles of
the Community legal order. The Member States themselves, therefore, carry a
responsibility to minimise the risk of conflicts between the Community legal order
and international law.108
In fact, this is how soft values re-enter the space of the UN Security
Councils realist politics. This is not dialogue in the conventional sense, but
highly effective interpenetration of systems.
CONCLUSION
Vlkerrechtsfreundlichkeit as comity functions as an ersatz meta-principle that
enables the ECJ to recognize, interpret and implement international law and,
at the same time, develop and preserve the Unions own separate identity.
International law and Union law co-exist side by side, representing two
constituencies and models of international legal relations. If international law
108
Opinion of the Advocate General, note 82 above, para. 32.
143
is the progenitor, and the stable foundation upon which the European Union
built its identity and internalized its values, Union law is more open to spontaneity and unpredictability, and more sensible to the concerns, preferences
and choices of individuals.
There is much to criticize in the European Unions policies and evolutionary turns and dead-ends. Its fascination for almost a decade with the project of
a formal political constitution,109 the ill-timed pursuit of an exceptional great
power status when the clocks of history had already announced the coming of
the new rising stars of the era of globalization, the sclerosis and reform-aversion of European economic structures, the bureaucratic micromanagement of
the internal market, for instance with regard to the movement of third-country
nationals110 and to the exercise of the freedom to provide services, all these
give sufficient grounds for concern and criticism. These developments in no
way invalidate the great contributions of the European Union to the idea of
supranationalism as a separate order overcoming some of the inconveniences
of international law and of inter-state relations. The ingenious arrangement of
fundamental economic freedoms and human rights in the European integration
system, the preservation of peace through transnationalism, and the commitment of the Union to the rule of law, even in the absence of fully-fledged
federal and democratic statehood, are among the transformative societal innovations of our time.
With or without the ECJ and the European Union, the deeper geological
foundations of international law are moving, albeit without too much drama.
Neoformalist thinking is uncomfortable with the evolving relationship
between Union law and international law because it provides evidence for the
accumulation of practices confirming an incremental but epochal change. It is
worth mentioning that the ECJ sometimes takes a narrow technical approach
to the interpretation of Union law on international legal issues, which satisfies
the assumptions of the formalist interpretation of international law, as can be
seen in its jurisprudence with regard to property issues in Cyprus.111
109
The Laeken Declaration of 14 and 15 December 2001 kickstarted the process
(Council Presidency Conclusions SN 300/1/01 REV 1), which continued with the
drafting of the Treaty establishing a Constitution for Europe ([2004] OJ C 310/1) and
its subsequent abandonment, and ended with the adoption of the Treaty of Lisbon
amending the Treaty on European Union and the Treaty establishing the European
Community ([2007] OJ C 306/1, consolidated version [2008] OJ C 115/1), which
entered ultimately into force on 1 December 2009.
110
Skordas, A., Immigration and the Market the Long-term Residents
Directive, (2006) 13 Columbia Journal of European Law 201.
111
As the ECJ and the ECtHR have become battlegrounds for the contestation of
Turkeys international state responsibility for the 1974 military intervention in Cyprus,
and of the legal status of the Turkish Republic of Northern Cyprus (TRNC), the
144
Nonetheless, neoformalism is more than that, because it raises formalist argumentation into a normative-universalist project. Criticism of this project
should not be misconceived as non-differentiated rejection of the legal
technical approach, which may be conducive to the effective dispute resolution, depending on the context. Criticism should be rather perceived as a challenge to neoformalisms reductionist claim that the methodological tools of
classical international law, refurbished with some elements of post-colonial
and counter-hegemonic critique, can adequately explain and resolve the ever
increasing complexity of international legal relations.
To conclude, I propose to represent the relationship between international
law and Union law by the fatherdaughter metaphor in lieu of the abusive
parentchild analogy. By now she has grown up and she is complex, attractive
and smart, but she sometimes feels perplexed and helpless in her encounters
with friends or strangers. He is proud of her, but does not want to openly
acknowledge it; it is high time he reconciled himself with her unpredictable
lifestyle and learnt from her unconventional attitude. She does not need his
protection any more, but she respects and loves him, because he is her father.
After all, they are family.
disputes on property rights in the North offer excellent case-studies on each courts
methodology. The ECJ has dealt with the above issue by applying Union law in a way
that affirms the formalist approach to international law (Apostolides v. Orams case, C420/07, Judgment of 28 April 2009 by the Grand Chamber, not yet reported). The
ECtHR pursues a dynamic-evolutionary interpretation of property rights under the First
Protocol to the ECHR, which attenuates Turkeys state responsibility and offers the
TRNC some limited legitimacy in international legal relations (Demopoulos and others
v. Turkey, application 46113/99, Admissibility Decision of 1 March 2010, Grand
Chamber, cf. in particular the antiformalist/sociological argument in para. 85).
PART III
The European Union and its neighbours
5. The European Union as an

international actor and progressive
experimentation in its neighbourhood
Bart Van Vooren
INTRODUCTION: THE NATURE OF THE EU AS AN
INTERNATIONAL ACTOR
In the European Security Strategy (ESS) of December 2003 building security
in our neighbourhood was posited as a key strategic objective for the
European Union.1 The forthcoming enlargement of May 2004 would bring
the EU closer to troubled areas2 and was the main driving force for drawing
up a European Neighbourhood Policy (ENP) to attain that objective.
According to the ESS the Union should promote a ring of well-governed countries to the East and South with whom it could enjoy close and cooperative
relations. The approach set out to that end was to extend the benefits of
economic and political cooperation to our neighbours ... while tackling political problems there.3 Beyond that broad statement, the strategic objectives of
the ENP have been subject to much debate and they were certainly not set in
stone.4 In December 2002 Romano Prodi described the Wider Europe
Initiative as seeking to share everything but institutions with the neighbours,
and the centrepiece would be a common market as well as far-reaching cooperation in common political challenges.5 The first Commission strategy paper
of 2003 famously stated that the neighbours should be offered the prospect of
the stake in the internal market and further integration and liberalisation to
promote the free movement of persons, goods, services and capital. On this
1
European Security Strategy, A Secure Europe in a Better World, 12
December 2003, 7.
2
Idem, 8.
3
Idem, 8.
4
Meloni, G. and Cremona, M., The European Neighbourhood Policy: A
Framework for Modernisation? EUI Law Working Papers No. 21/2007, 595.
5
Prodi, R., A Wider Europe: A Proximity Policy as the Key to Stability, Sixth
ECSA World Conference Brussels, 56 December 2002, Speech/02/619 (2002).
147
148
basis the ENP would build its oft-quoted ring of friends.6 In methodological and
policy terms, for the EUs part, the whole range of the Unions policies (foreign,
security, trade, development, environment and others) will need to rise to meet
this challenge.7 Hence, the European Neighbourhood Policy is an initiative that
involves the EU as a whole, including the Common Foreign and Security Policy
(CFSP) as well as external action of its Member States, towards the ambitious
objective of attaining a stable, secure and prosperous neighbourhood.
It has been almost a decade since the ESS called for a more active, more
capable and more coherent Union towards creating the stable and prosperous
ring of friends. The purpose of this chapter is not to restate the well-known tale
of the ENP which has emerged from vast academic literature:8 a cross-pillar
6
Communication from the Commission, Wider Europe Neighbourhood: A
New Framework for Relations with our Eastern and Southern Neighbours,
COM(2003) 104 final (11.3.2003), 4 and 10.
7
Idem, 3.
8
Aliboni, R., The Geopolitical Implications of the European Neighbourhood
Policy, (2005) 10 European Foreign Affairs Review 1; Meloni, G. and Cremona, M.,
The European Neighbourhood Policy: A Framework for Modernisation? (EUI Law
Working Papers No. 21/2007 2007); Dannreuther, R., Developing the Alternative to
Enlargement: The European Neighbourhood Policy, (2006) 11 European Foreign
Affairs Review 183; Atesoglu Guney, T., The Region-Building Practices of the EU in
the Mediterranean: The EMP and ENP, What is Next?, (2008) 17 European Security
123; Harpaz, G., Enhanced Relations between the European Union and the State of
Israel under the European Neighbourhood Policy: Some Legal and Economic
Implications, (2004) 31 Legal Issues of Economic Integration 257; Kosior, K. and
Jurkowska, A., Beyond the Borders: Ukraine and the European Neighbourhood Policy
(University of Rzeszow 2007); Smith, M. E., Weber, K. and Braun, M., Governing
Europes Neighbourhood (Manchester: Manchester University Press 2007); Kelley J.,
New Wine in Old Wineskins: Policy Adaptation in the European Neighbourhood
Policy, (2006) 44 Journal of Common Market Studies; Varwick, J. and Lang, O.,
European Neighbourhood Policy: Challenges for the EU Policy Towards the New
Neighbours (Opladen: Barbara Budrich Publishers 2007); Tumlets, E. and Delcour, L.,
Pioneer Europe? Testing EU Foreign Policy in the Neighbourhood (Baden-Baden:
Nomos 2008); Meloni, G., Is the Same Toolkit used during Enlargement still
Applicable to the Countries of the New Neighbourhood? A Problem of Mismatching
between Objectives and Instruments in Meloni, G. and Cremona, M. (eds), The
European Neighbourhood Policy: A Framework for Modernisation? (2007); Greco, E.,
Tocci, N. and Comelli, M., From Boundary to Borderland: Transforming the Meaning
of Borders through the European Neighbourhood Policy, (2007) 12 European Foreign
Affairs Review 203; Sasse, G., Conditionality-lite: The European Neighbourhood
Policy and the EUs Eastern Neighbours in European Foreign Policy in Musu, C. and
Casarini, N. (eds), An Evolving International System: The Road Towards Convergence
(2007); Del Sarto, A. and Schumacher, T., From EMP to ENP: Whats at Stake with
the European Neighbourhood Policy Towards the Southern Mediterranean?, (2005) 10
European Foreign Affairs Review 17; Smith, K.E., The Outsiders: The European
Neighbourhood Policy, (2005) 81 International Affairs 757; Tulmets, E., The
The EU as an international actor
149
policy for the Union as a whole based on pre-accession methodologies

towards exporting the acquis, without the incentive of actual EU accession.
Instead, this chapter will take stock of what has become of the ENP anno
2010. Looking at this policy through the prism of the nature of the Union as
an international actor, this chapter will examine some of the key novelties and
experiments in this policy for their contribution to what the ESS in 2003 called
a more capable, more coherent and more active European Union.
Article 3(5) of the Treaty on European Union states that in its relations
with the wider world, the Union shall uphold and promote its values and interests, implying that the Union exists as a distinct actor in international relations. It is what Article 2 of the post-Nice EU Treaty called asserting the
Unions identity on the international scene, an identity separate from that of
the Member States. In furthering that identity, the Union has famously suffered
from the capabilityexpectations gap:9 the discrepancy between the increasing
expectations vis--vis the EU within and outside the Union, and its ability to
actually agree and engage its limited resources towards certain common ends.
The premise of this contribution is that this perceived inability to meet these
expectations can be partially attributed to the internal diversity of the EU as an
international actor: the Member States conduct their own foreign policies in
pursuit of national interests, which may or may not overlap with interests and
objectives of the Union. Similarly, the Union has significant powers in external relations in pursuit of an EU-interest that partially overlaps with those of
its Member States but which is more than, and separate from, a simple
composite interest of the EU-27. Hence, the EUs international identity is a
most complex one, and this chapter conceives of EU external relations as the
aggregate outcome of an ever-ongoing process of accommodating this internal
legalpolitical diversity, while progressively building towards that distinct
Union identity.
It is this nature as a continuous process that has led some commentators
to describe the EU and its external policies as a laboratory for experimentation
with legal, political and institutional practices.10 The European
European Neighbourhood Policy: A Flavour of Coherence in the EUs External

Relations?, (2008) 3 Hamburg Review of Social Sciences; Smith, M.E. and Webber,
M., Political Dialogue and Security in the European Neighbourhood: The Virtues and
Limits of New Partnership Perspectives, (2008) 14 European Foreign Affairs Review
73.
9
Hill, C., CapabilityExpectations Gap, or Conceptualizing Europes
International Role, (1993) 31(3) Journal of Common Market Studies, 305.
10
Cremona, M., The Union as a Global Actor: Roles, Models and Identity,
(2004) 42 Common Market Law Review 553. See also Hillion, C., The European
Union and its Eastern European Neighbours: A Laboratory for the Organisation of its
External Relations (Oxford: Hart Publishing, forthcoming).
150
Neighbourhood Policy is indeed a good example of this since it has not so

much developed by purposive design. Rather, this policy is a Harlequins
costume of geographically and topically defined initiatives and ad hoc overlapping responses to major international events, constrained and defined by
internal diverse interests of the Member States and the EU institutions. This
contribution draws on this metaphor of progressive experimentation towards
EU external action, and will examine two key experiments in the
Neighbourhood Policy which are arguably novel for EU external action. More
specifically, it conceives of them as experiments in accommodating the EUs
internal diversity while attaining the more capable, coherent and active
Union in the world: first, drawing together all neighbours in the South and the
East in a geographically all-encompassing policy; and second, the utility of
soft law as the main instrument for expanding and implementing these
EUthird-country relations.
The structure of this analysis is as follows. First, it will be argued that merging together a dozen different countries in a single policy of all-encompassing
geographic nature was an artificial construct from the outset. Given that it was
mostly the consequence of competing national interests within the Union, this
geographic comprehensiveness has since been largely abandoned. However,
this experiment with a policy aimed at all EU neighbours was supportive of
accommodating the internal diversity of the Union as an international actor.
Second, it will be argued that experimentation with soft legal instruments in
the ENP has proven their utility beyond the sphere of pre-accession, and for
that reason they have attained a prominent position in the toolbox for conducting other EU external initiatives that require accommodating the nature of the
EU as an international actor.
COMPREHENSIVE GEOGRAPHIC SCOPE OF THE ENP

The Southern and the Eastern Dimension of the ENP
The ENP was at first called a Proximity Policy by Romano Prodi; for the
better half of 2003 it was referred to as the Wider Europe Policy, and subsequently the EU finally settled on the European Neighbourhood Policy. This
was mainly because the French translation of Wider Europe (lEurope
largie) was all too reminiscent of enlargement, a reference which several
Member States anxiously wished to avoid. While the name of the new policy
was initially in flux, so was its geographical scope, and this largely because
of diverse Member State interests. The initial impetus for a Wider Europe
initiative came mainly from the UK, Sweden, Poland and Germany, and
therefore this policy initiative was originally conceived to include the
151
Eastern neighbours only.11 The August 2002 joint letter of Chris Patten and
Javier Solana equally proposed to place the initial emphasis on the East,
notably Ukraine and Moldova. The geographic scope of the new initiative
would soon have to be broadened however, notably under the influence of
France which insisted on including the Mediterranean rim as well. This
geographic shift is then visible through comparing Council Conclusions on the
ENP: the September and November Council conclusions affirmed the
geographic scope of the Patten/Solana letter,12 but hints that wider Europe
deserved consideration began to emerge.13 By the Copenhagen European
Council of December 2002 the southern Mediterranean countries were
included, as well as Russia.14 Further changes to the geographic scope of this
policy were due largely to external political reasons: Russia excluded itself
from this policy since it did not wish to be treated on an equal footing with
other ENP partner countries.15 As the Rose Revolution unfolded in 2003, by
2005 the ENP also came to encompass the Southern Caucasus.16
Consequently, the geographic scope of the ENP initially formed on the
basis of the most pressing concerns connected to enlargement and was subsequently shaped by individual EU Member States interests towards particular
regions. Thereafter its scope was finalized under the influence of external
political events and third country disinterest in the new offer. From reading the
ESS one could deduce that the ENP was from its departure designed to be
geographically comprehensive. Such was however not the case. It is then
notable that six years later, again through a blend of Member State interests
and responses to external stimuli, the comprehensive geographic scope of the
ENP seems to have been abandoned: the Union for the Mediterranean (UMed)
launched in 2008 was an entirely French proposal, and the Eastern Partnership
(EaP) launched in 2009 was championed by Poland and Sweden, Member
11
Tulmets, E., Experimentalist Governance in EU External Relations:
Enlargement and the European Neighbourhood Policy, in Sabel, C. and Zeitlin, J.
(eds), Experimentalist Governance in the European Union: Towards a New
Architecture (2010), 315.
12
This is clear from Conclusions of the GAER Council, Eastern Neighbours (15
April 2002).
13
Conclusions of the GAER Council, New Neighbours Initiative (30 September
2002), 8.
14
European Council Conclusions, Copenhagen, 1213 December 2002, para 24.
15
By the St Petersburg summit of May 2003 it had become clear that Russia did
not wish to take part in the Neighbourhood Policy on equal footing with the other
Eastern and Southern Neighbours and there it was decided to pursue EURussia relations through four common spaces in a Strategic Partnership.
16
The policy currently includes the following twelve countries: Armenia,
Azerbaijan, Egypt, Georgia, Israel, Jordan, Lebanon, Moldova, Morocco, Occupied
Palestinian Territory, Tunisia, and Ukraine.
152
States that had several years earlier pushed for the Wider Europe Initiative
with the Eastern focus.17 The examples of the UMed and EaP are therefore
illustrative of how the EUs internal diversity of interests intersects with external political exigencies, leading to a patchwork construction of Union external action. In fleshing out these examples, I shall highlight debates over
financing these new projects to bring out more sharply the dividing lines that
exist within the Union in pursuit of these newest additions to the ENP.
In July 2008 le processus de Barcelone: une Union pour la Mditerrane
was launched at a summit in Paris during the French EU presidency. On 7 May
2009, the Eastern Partnership summit took place, taking the relations with the
Eastern neighbourhood to a new level.18 Keeping in mind the original
construction of the ENP, both processes are arguably but an expression of what
was already going on beforehand: the geographic comprehensiveness was
restated time and again in EU rhetoric, but in reality was the result of an
awkward EUinternal-political compromise.
The idea for a UMed was first floated by President Sarkozy during early
2007 and was largely defended by France on a strong economic rationale. The
new proposal was to bridge the economic gap between the EU and the
Northern African countries,19 and politically the proposal sought to put the
Mediterranean countries back on the agenda since the French argued that the
Barcelona process lacked the visibility it deserved. However, the UMed failed
to convince EU institutions and other Member States as well as political
commentators20 as it seemed poorly conceived and politically awkwardly
launched. Notably frosty was the reception by Turkey and Germany: for the
former, it was an attempt by France to place it on a side-track moving away
from accession; for the latter, the Sarkozy-driven process outside of existing
EU external policies was unacceptable. In a declaration delivered before the
Bundestag on 12 December 2007, Angela Merkel said that there must not be
a Europe of private functions and the French proposal should thus be open to
all member states. Referring to the Mediterranean Union she argued that
Europe can only succeed jointly.21 After a meeting between Merkel and
17
Swedish-Polish Non-Paper, Eastern partnership, available from:
http://www.mfa.gov.pl/files/PARTNERSTWO%20WSCHODNIE/1en.pdf (link valid
on 15 April 2010).
18
Council of the European Union, Joint Declaration of the Prague Eastern
Partnership Summit, Prague, 7 May 2009, Brussels, 8435/09.
19
Seminar under the Chatham House Rule, source on file with author, April 2008.
20
Emerson, M. and Tocci, N., A little clarification, please, on the Union of the
Mediterranean, CEPS Commentary, 8 June 2007.
21
Euractiv, Sarkozys Mediterranean Union plans irk Merkel, 13 December
2007 Available at http://www.euractiv.com/en/future-eu/sarkozy-mediterranean-unionplans-irk-merkel/article-169080 (Link valid on 29 April 2010).
153
Sarkozy in Paris that same month, Germany and France agreed that they
would work on a common proposal which would give an opportunity to all
European Member States to participate in the new proposal.22 The final
compromise was the UMed which absorbs the Barcelona process, exists under
the ENP umbrella and where the meetings are jointly chaired by a rotating
presidency of Member States and Mediterranean partner countries. The
revamped Southern branch of the ENP was launched in Paris early during the
2008 French EU Presidency.
In April 2009, the French senator Robert del Picchia published a first evaluation report on the UMed, which provides useful insight into the reasons for
this initiative having been largely stillborn.23 While the report called its launch
in Paris on 13 July 2008 a succs diplomatique indniable,24 EU-internal
scepticism from the Member States and the Commission as well as EU-external political events led to the relative failure of the newest addition to the ENP
stable. Partially to blame was the vague nature of the Paris Summit
Declaration of July 2008. While it laid down the main principles justifying a
new initiative, it postponed numerous crucial questions to be decided later;
these included the location of the UMed Secretariat, a point of strong
contention between France and Spain, finally decided in favour of the latter.
Another unresolved issue of more substantive nature was that of financing.
On this point the 2009 evaluation report states that the Paris Summit
Declaration was extremely vague, indicating that les projets devront bnficier de moyens de financement supplmentaires et voquant, outre le
budget communautaire, la participation du secteur priv et des institutions
financires internationales.25 As is often the case in drawing up EU external
initiatives, debates and notably disagreement over financial contributions are
fierce battlegrounds that will often decide the fate of new policy proposals.26
22
23
Idem.
Senate of the French Republic, European Affairs Committee, Situation de
lUnion pour la Mditerrane, Communication de M. Robert del Picchia, 31 March
2009 http://www.senat.fr/europe/r31032009.html#toc1 (Link valid on 4 April 2010).
24
http://www.euractiv.com/en/east-mediterranean/france-club-med-plan-halffrozen/article-181259 (Link valid on 15 April 2010).
25
Senate of the French Republic, see note 23, para 5.
26
See for example Talliss and Kurowskas empirical research on battles
between the Commission and Council over financial contributions to CSDP missions,
where debates over financial contributions from the Commission to CFSP missions go
hand in hand with (legal and political) disagreement on control over planned missions.
Tallis, B. and Kurowska, X., EU Border Assistance Mission: Beyond Border
Monitoring?, (2009) 14 European Foreign Affairs Review 47(50). See also Missiroli,
A., Money Matters: Financing EU Crisis Management in Deighton, A. (ed.), Securing
Europe? Implementing the ESS (Zurich: Zrcher Beitrge Zur Sicherheitspolitik,
Center for Security Studies, No. 77, Zurich, 2006), 43.
154
In this case, reluctance on the part of the Commission to actively support the
UMed was indicative of its broader scepticism towards re-branding the
Barcelona Process and the ENP. That point of view of the Commission
emerged if somewhat subtly from its May 2008 Communication on the
UMed. On the issue of funding it said that:
To bring added value to existing arrangements, the Barcelona Process: Union for
the Mediterranean should be designed to mobilise additional funding for the region
[...] While there can be no prior earmarking of EU funds, certain projects which fit
with the objectives of EU regional programmes can be considered for funding.
Insofar as funding from the EU budget is concerned, the normal selection and
procedural rules will continue to apply [...] The Commission believes that additional funding for regional projects and activities should come mainly from the
following sources.27
Thereafter follows a list including private sector participation, bilateral

support from EU Member States themselves, contributions from
Mediterranean partners and from international financial institutions. On an EU
contribution the Communication simply mentions the financial commitments
which had been previously made towards the South under the European
Neighbourhood and Partnership Instrument. This analysis of the
Commissions reluctance as expressed in the 2008 Communication is
confirmed by the final paragraph of the report of the French senator:
Le financement des projets est dailleurs abord de manire paradoxale. Alors que
de nombreux tats membres rappellent rgulirement le rle central de lUnion
europenne et des procdures communautaires sur tous les sujets lis lUPM
[French acronym for UMed], la Commission se montre extrmement prudente quant
la disponibilit des crdits communautaires pour financer les projets. Or, il me
semble que la clef du succs de lUPM rsidera dans la capacit obtenir des fonds
du secteur priv et tablir des partenariats public/priv. Cest l que se trouvera la
vritable valeur ajoute de lUPM par rapport au processus de Barcelone.28
Thus the issue of financing illustrates the awkward fit between pre-existing
ENP arrangements towards the South and the proposal championed by the
French presidency. It shows that the dispersed nature of different loci of
foreign policy authority underpinning EU external action often leads to an
incoherent patchwork of overlapping initiatives, without necessarily providing
added value. The UMed had originally been conceived as an entirely new
27
Communication from the Commission to the European Parliament and the
Council: Barcelona Process: Union for the Mediterranean, Brussels, 20/05/08,
COM(2008) 319 (Final), 8.
28
Senate of the French Republic, see note 23, final paragraph (emphasis added).
155
initiative, independent even of pre-existing Union initiatives29 and probably to

the greater glory of the French Republic. Strong German insistence put a halt
to that dynamic, and it argued that, if the UMed had to be launched, such could
only be done under the ENP umbrella. The report by the French senator
reflects this debate, and it is appropriate to call the situation of funding paradoxical: the Commission did not see the utility of the re-branding exercise and
was not eager to seek additional EU funding in support of this project. In the
light of such difficulties, it is then no surprise that when the IsraelPalestine
hostilities reached a new high during the winter of 20082009, the political
limelight moved away from the UMed to more pressing matters. The fourth
Ministerial Conference on Water held in Barcelona on 1314 April 2010 shows
that the effectiveness of EU initiatives with the South is deeply hampered by
the IsraeliPalestinian conflict: Israel refused to accept a reference to the occupied territories in the conclusions of that meeting, whereas other countries
refused to accept the EU compromise proposal of referring to territories under
occupation.30 Debates over geographic comprehensiveness, the location of the
proposed secretariat or the branding of EU policies should indeed be the least
of the Unions concerns in its relations with the Mediterranean.
The Eastern Partnership (EaP) presents another example of the subsequent
deconstruction of the ENPs geographic scope under the influence of individual Member State interests. The Polish Foreign Ministry is most vocal about
its role in pushing the EaP onto the Union agenda: The Eastern Partnership is
the first Polish initiative incorporated into the system of the European Unions
external relations. [] The Eastern Partnership is designed to facilitate the
achievement of one of the key goals of Polish foreign policy, the approximation and integration of East European countries with the European Union.31
The idea of carving out a clearer Eastern dimension to the ENP had first
been floated in a Polish-Swedish non-paper of May 2008, partially in response
to the French UMed proposal.32 As previously pointed out however, these
countries were already in 2002 in favour of an ENP that would have an
Eastern-focus only. The reason why the Eastern Partnership at that time
29
Although rhetorically constructed as mending the largely failed Barcelona
Process.
30
See E. Rhein, Union for the Mediterranean has to get serious, Euractiv
Analysis, 23 April 2010 available at http://www.euractiv.com/en/east-mediterranean/
union-med-has-get-serious-analysis-473553 (link valid on 29 April 2010).
31
Ministry of Foreign Affairs of the Republic of Poland, Eastern Partnership,
Available from: http://www.msz.gov.pl/Eastern,Partnership,19898.html (Link valid on
7 April 2010).
32
Swedish-Polish Non Paper, Eastern partnership, available from:
http://www.mfa.gov.pl/files/PARTNERSTWO%20WSCHODNIE/1en.pdf (link valid
on 7 April 2010).
156
garnered political support and a subsequently much more high-profile launch

than the UMed, was the redrawn geopolitical map due to the conflict between
Russia and Georgia in August 2008. The European Council of 1920 June
2008 had invited the Commission to prepare a proposal on the Eastern
Partnership, but the Extraordinary European Council of 1 September 2008
asked this work to be accelerated, according to the Commission responding
to the need for a clearer signal of EU commitment following the conflict in
Georgia and its broader repercussions.33 The growing confidence of the
Russian Federation to project its weight in the neighbourhood, through military force if need be, thus resulted in strong high-level political support to
upgrade ENP relations with the Eastern neighbours. The 7 May 2009 Joint
Declaration therefore emphasizes that this new initiative under the ENP
umbrella aims to accelerate political association34 and that the EaP carries a
clear political message about the need to bolster the course towards
reforms.35
In terms of substance, the added value lay mostly in its multilateral dimension. The bilateral track as set out in that Joint Declaration is very much a repetition of the ENP: security, stability, prosperity is recounted as the objective
of the EaP, it is an initiative which is based on common values and fundamental rights and it is complementary to the existing contractual relationship
between the EU and the partner countries. These are all elements well-known
and well-integrated into the ENP policy framework. What is novel is how the
Eastern Partnership is explicit about strengthening relations between Eastern
Partners themselves. Earlier academic commentaries on the ENP had critiqued
this new policy for lacking such a dimension,36 and the Eastern Partnership
makes amends in this regard:
The multilateral framework of the Eastern Partnership will provide for cooperation
activities and open and free dialogue serving the objectives of the Partnership. It
will operate on a basis of joint decisions of the European Union and the partner
countries. [...] The multilateral framework is aimed at fostering links among partner
countries themselves and will be a forum for discussion on further developments of
the Eastern Partnership.37
33
Communication from the Commission to the European Parliament and the
Council, Eastern Partnership, COM(2008) 823/4, Brussels, 8 December 2008, 2.
34
Joint Declaration of the Prague Eastern Partnership Summit, see note 18, para 2.
35
Idem, para 3
36
Cremona, M. and Hillion, C., LUnion fait la force? Potential and Limitations
of the European Neighbourhood Policy as an Integrated EU Foreign and Security
Policy, EUI Law Working Paper (2006/39).
37
Joint Declaration of the Prague Eastern Partnership Summit, see note 18, para 9.
157
It is too early to assess whether this is but yet another exercise of policy rebranding that will follow the path of the UMed or whether this will in fact
bring substantive change to the ENP. If anything, the importance of the EaP is
that from then onwards Belarus is no longer being side-lined in the Unions
engagement with the neighbourhood.
On the issue of financing, the Swedish-Polish non-paper had initially made
a rather modest proposal. They argued that sources for implementation of
deeper relations would come from previously available resources and that
therefore, strengthening the Eastern dimension will be neutral for the EU
budget. The EU funds could be coupled with the EIB and EBRD credits, as
well as resources handed over by willing EU Member states as well as EEA
and other partner countries.38 However, because of the deep shift in the
regional political climate since August that year, more ambitious goals were
set forward in the December 2008 Communication on the Eastern Partnership.
It is quite noticeable that the tone and substance of the Commission proposal
is significantly different from its May 2008 Communication on the
Mediterranean Union: One of the clearest signals the EU can give of a
concrete commitment to its partners is to bring funding levels in line with the
Partnerships level of political ambition. Substantially increased financial
resources are required to achieve the objectives set out in this proposal.39
Concretely, the Commission proposed to nearly double European
Neighbourhood and Partnership Instrument (ENPI) funding for the partners
from 450 million in 2008 by supplementing them with 350 million of
fresh funds on top of the planned resources for 20102013.40 The
Commission further proposed to reprogramme the regional dimension of the
ENP financing instrument to free up urgent funds in support of the Eastern
Partnership, as well as activating various other mechanisms such as the
Neighbourhood Investment Facility.41
Lessons Learnt from the Experiment in Geographic Comprehensiveness
In conclusion, the Eastern Partnership and the Union for the Mediterranean are
both good examples of what was termed progressive experimentation in EU
external relations. The ENP was a piecemeal construction in geographic terms
due to EU-internal diversity in foreign policy interests: certain individual
Member States or groups of Member States coalesced around a common interest to strengthen relations with a particular region and then sought to have
38
39
40
41
Swedish-Polish Non Paper, see note 32, 2.

Communication on the Eastern Partnership, see note 33, 13.
Idem, 13.
Idem, 13.
158
those interests furthered at EU level. At first, the compromise was to pursue

all interests in a single policy, termed the European Neighbourhood Policy.
However, as external political settings evolved alongside persisting individual
interests of EU-internal actors, geographic comprehensiveness was increasingly abandoned. This then led to a rupture in the already artificial
geographic comprehensiveness of the ENP: the Swedish-Polish proposal
became well integrated into the ENP because of a fertile political climate,
whereas the poorly conceived France-centred Mediterranean Union broadly
fell on stony political and financial ground. In both cases, policy rhetoric has
begun to readjust accordingly. For example, in relations with Ukraine the
political documents now steadily refer to the Eastern Partnership and the ENP
brand plays second fiddle.42 Similarly, the Barcelona Process has made room
for the Union for the Mediterranean, which is now the policy brand of
choice.
At first sight the lesson learnt from the experiment with geographic
comprehensiveness in the neighbourhood is this: there is no need for a unitary
geographic brand to effectively engage countries in the neighbourhood.43
There is no harm in having a Northern Dimension, a Mediterranean Union, a
Black Sea Synergy, an Eastern Partnership, as long as political coordination is
maintained within the European Union. However, that conclusion would be
too sweeping as it ignores the internally diverse nature of the Union as an
international actor. A strong and valid counter-argument to the geographic
inclusiveness of this policy takes an EU-internal perspective: officials of the
institutions have argued that at the time of conceiving the ENP, this comprehensiveness was indispensable in navigating the internal diversity of (at the
time) fifteen Member States interests.44 One key observation was that this
single nature was necessary to attain the more ambitious financial and policy
commitments in the ENP context.45 These notably included negotiations on
the European Neighbourhood and Partnership Instrument that drew together
pre-existing TACIS and MEDA instruments,46 as well as the commitment that
neighbouring countries would be allowed to participate in EU programmes
and establish connections with agencies of the European Union.47 The fact that
42
43
See below for discussion of the Ukrainian Association Agenda.

Noutcheva, G. and Popescu, N., European Neighbourhood Policy Two Years
on: Time indeed for an ENP Plus, (2007) CEPS Policy Briefs.
44
Seminar under Chatham House Rule, source on file with author, April 2008.
45
Idem.
46
Idem. See Regulation laying down general provisions establishing a European
Neighbourhood and Partnership Instrument, [2006] OJ L301/1 (1638/2006).
47
Communication from the Commission on the general approach to enable ENP
partner countries to participate in Community agencies and Community programmes,
Brussels, COM(2006) 724 final 4 December 2006.
159
Russia is not included in the ENP itself, but nevertheless covered by its financing instrument, is an indicator supporting that EU-internal rationale favouring
the experiment in geographic comprehensiveness.
The internal and the external argument to this experiment are arguably
equally valid. Given that the focus should lie on effectiveness beyond the
borders of the Union, the long-term solution for an effective, capable and
coherent Union should be found in better managing the internal diversity of
the Union as an international actor. To that end the ENP contains some further
experimentation. The next section of this chapter will examine the widespread
use of non-legally binding instruments in light of this need to manage the EUs
internally fragmented nature.
UTILITY OF NON-LEGAL INSTRUMENTS IN

IMPLEMENTING THE ENP
ENP Methodology: A Laboratory for New Instruments of EU External
Action
The European Security Strategy firmly placed the European Neighbourhood
Policy on a security rationale: Neighbours who are engaged in violent
conflict, weak states where organised crime flourishes, dysfunctional societies
or exploding population growth on its borders all pose problems for Europe.48
The security rationale underlying the ENP is indeed unmistakeable, and what
is more, the kind of security the Union pursues is described in the literature as
being comprehensive:49 security within the neighbouring States, security
within the region, security at the external borders of the EU, and security
within the EU itself, each of these impacting on the others.50 According to the
Commission, this kind of comprehensive approach required that the whole
range of EU policies are engaged to meet this challenge.51 However, a rhetorical commitment to engaging all EU policies towards a comprehensive notion
of security is insufficient if not supported by appropriate legal instruments
spanning the fragmented EU as an international actor. ENP ambitions required
that the instruments at the disposal of the Union be able to encompass actions
falling within both EU and Member State competence and should be able to
be flexibly and speedily adapted to evolving socio-economic and political
48
49
European Security Strategy, see note 1, 7.

Biscop, S., The European Security Strategy: A Global Agenda for Positive
Power (Aldershot: Ashgate 2005), Chapter 1.
50
Cremona, M. and Hillion. C., see note 36, 5.
51
Wider Europe Communication, see note 6, 3.
160
exigencies. In light of that necessity the European Neighbourhood Policy has

been a laboratory for creating a plethora of new non-legally binding instruments that exhibit exactly these characteristics. This evolution in the ENP is
arguably part of a broader dynamic on a global scale, which has been called
the increased recourse to informality in the context of global multilevel
governance.52 This dynamic implies that many procedures and instruments
through which current international relations take place escape the grasp of
established legal concepts. Rather than binding international agreements
concluded by states, international governance increasingly takes place
through principles, agendas, memoranda, declarations, guidelines, and various other instruments commonly termed soft law.53 In the context of the
ENP the Union has been most prolific in generating an avalanche of such
instruments.
Various aspects of the trend of recourse to informality in the ENP context
have already been well-covered in the literature. First, the fact that the ENP
methodology is based on the pre-accession methodology pursued towards the
2004 big-bang enlargement. Empirical work by Tulmets has shown that this
methodological continuity between the ENP and enlargment can be explained
in part by the fact that the Wider Europe task force responsible for conceptualizing the ENP was manned by staff from DG Enlargement alongside
members of DG Relex.54 The consequence of this is that the ENP, as enlargement, is being carried out through consultative processes with reference to a
plethora of soft legal instruments, monitoring based on naming and shaming,
and various other methods based on participation, consultation, review and
evaluation. Second, elsewhere I have argued that the soft legal instruments
generated in the ENP context and notably the ENP action plans have
52
Von Bogdandy, A., Dann, P. and Goldmann, M., Developing the Publicness
of Public International Law: Towards a Legal Framework for Global Governance
Activities, (2008) 9 German Law Journal 1378.
53
Three contributions that each provide very different perspectives on the role
of legal informality in international relations/law: Schaffer, G. and Pollack, M., Hard
vs. Soft Law: Alternatives, Complements, and Antagonists in International
Governance, (2010) 94 Minnesota Law Review 706 (on soft law as an antagonist to
international binding rules); Tulmets, E., in Sabel, C. and Zeitlin, J. (eds), see note 11
(on informal governance processes being used by the Union in its external relations);
Warning, M. J., Transnational Public Governance (London: Palgrave Macmillan,
2009) (on transnational networks).
54
Tulmets, E., see note 11, 315. Similarly: Hillion, C., The EUs
Neighbourhood Policy towards Eastern Europe in Dashwood, A. and Maresceau, M.
(eds), Law and Practice of EU External Relations: Salient Features of a Changing
Landscape (Cambridge: Cambridge University Press, 2008) 309; Cremona, M. and
Hillion, C., see note 36.
161
proven crucial to the construction and execution of this policy.55 First, at the
level of policy conception they allow the whole range of EU actors to
contribute to a holistic policy concept without the negative impact of competence squabbles. Second, they can easily encompass all TEU and TFEU policy
fields alongside Member State competences, and can be speedily adopted on
the part of the Union since they present almost no procedural obstacles in
comparison to the adoption of legally binding (mixed) international agreements. Third, given that they are non-binding they are more flexible in that
they can be easily renewed, adapted or rescinded as bilateral relations or
economic and political realities change. Below I shall further illustrate the utility of these characteristics in the ENP by briefly laying out the key instruments
through which this policy has been implemented.
In light of the inquiry into experimentation in the ENP, subsequent paragraphs comprise an examination of what this choice for the soft legal nature
of instruments in the ENP implies for future tools of EU external relations.
How is the ENP experience with soft instruments being evaluated, and how is
this affecting newly developed instruments for the future conduct of EU external action? It will be argued that soft legal instruments are indeed supportive
of overcoming internal diversity of the EU as an international actor, and additionally that their operational and flexible nature is indeed beneficial in carrying out effective EU external policies.
In order to develop relations with the Eastern and Southern neighbours, the
ENP utilizes a standardized legal-institutional methodology through which to
pursue cooperation with the third countries. At the core of each individual
bilateral relationship lies a contractual agreement, and its conclusion is a
prerequisite to developing a privileged relationship between the EU and the
partner country:56 the Partnership and Cooperation Agreements (PCA) in
Eastern Europe and the southern Caucasus, and the Association Agreements
(AA) in the Mediterranean.57 The importance of these international agreements is two-fold: firstly, they provide the legal basis on which the EU carries
out its relations with the third country, and secondly, their institutions provide
the forum for contacts at political and expert/civil servant level through which
ENP cooperation is taken further. It is notable, however, that ENP bilateral
55
Van Vooren, B., Soft Law in EU External Relations: The European
Neighbourhood Policy, (2009) 34 European Law Review 696.
56
For confirmation on the requirement for contractual relations see paragraph 6
of the preamble to the ENPI Regulation. The term privileged relationship is common
parlance and can be found in paragraph 4 of the ENPIs preamble. Regulation laying
down general provisions establishing a European Neighbourhood and Partnership
Instrument, [2006] OJ L301/1 (1638/2006).
57
ENPI Regulation, see note 46, preamble, para 5.
162
cooperation governed by these legal agreements is substantively fleshed out

by a large body of soft legal documents, a characteristic borrowed from the
pre-accession process leading up to the May 2004 enlargement. The most
prominent of these instruments are the ENP action plans, which contain all
policies on which the EU and the ENP partner country plan to cooperate. The
idea to further ENP relations through action plans first appeared in the Wider
Europe Communication of March 2003.58 The Commission proposal
described them as political documents which draw together existing and
future work in the full range of the EUs relations with its neighbours.59 This
underlines their rationale in overcoming the internal diversity of the European
Union. Additionally, they are relatively uniform in structure and contents, and
the topics for collaboration mentioned in them include economic development, environmental policy or energy cooperation, but also border control,
cooperation on organized crime, combating terrorism, and so on. This list is
non-exhaustive, and importantly, aforementioned topics require action from
the Member States and the Union through TEU and TFEU external policies,
further supporting the cross-pillar nature of this policy.
The action plans are then further complemented by country strategy papers
drawn up with each ENP partner. These documents cover the whole EU
budgetary cycle up to 2013 and are the result of a consultative process between
the EU institutions, Member States, the third countrys ministries and parliament, international (financial) institutions, aid agencies of third countries
(usually USAID) and civil society.60 These documents abandon the bullet
point style of the action plans, and instead set out EU strategic objectives for
cooperation with the ENP partner, alongside the policy agenda of the third
country itself. The country strategy papers are then implemented by yet
another soft instrument, the national indicative programmes. These are
drawn up for a three year period and map out the priorities for which the Union
will provide budgetary support from the European Neighbourhood and
Partnership Instrument.
Focusing on the ENP action plans, their example has led to the conclusion
of similar soft legal instruments through which EU external policy is carried
forward. In this context, I shall highlight two new instruments which build on
the experiment of the ENP action plans. The first is a group of instruments that
in form and substance very much resemble mixed agreements, but invariably
contain a clause (or a variant thereof) stating: The provisions of this joint
58
59
60
Wider Europe Communication, see note 6, 12.

Idem, 16.
See for example the outline of the consultative process in Annex II to the CSP
of Georgia. European Commission, European Neighbourhood and Partnership
Instrument, Georgia, Country Strategy Paper, 20072013.
163
declaration are not designed to create legal rights or obligations under international law.61 Such instruments can among others be found in the field of
migration (Mobility Partnerships) and in the field of energy (memoranda of
understanding and joint declarations62). This chapter will focus on the
Mobility Partnerships given that their non-legal nature as with the ENP
action plans can be most clearly attributed to overcoming obstacles associated with the EUs internal division of competences. Additionally, these instruments flesh out at least some characteristics already noticeable in earlier ENP
action plans. The second instrument that will be dealt with is the Association
Agenda adopted in December 2009 between the Union and Ukraine.63 This
soft legal instrument is interesting because it indubitably builds on and replicates the nature of the ENP action plans. However, it is more than that: it holds
the legal middle ground between the PCA which is still in force, and a future
Association Agreement still under negotiation as well as the interim agreement
to be adopted in the run-up to that Association Agreement. This is thus the first
example of a second generation ENP action plan, and it provides some interesting insights into the lessons learnt from more than five years of implementing the ENP.
The Mobility Partnerships, a Fragmented Union and Variable Geometry
In the field of migration policy, the EU and the Member States have recently
begun adopting Joint Declarations on Mobility Partnerships with various third
countries. Two pilot instruments were adopted with Moldova and Cape Verde
in June 2008,64 and more recently a Mobility Partnership has been adopted
between the Union, sixteen EU Member States, and Georgia. From an EUinternal perspective, their legal form is clearly inspired by experimentation with
soft legal instruments in the context of the ENP. As indicated, a key reason for
drawing up ENP action plans was to achieve more easily coherence across policies of the Union and its Member States, and to allow initiatives in political
dialogue or CFSP to figure in the same instrument as judicial cooperation, trade
61
Joint Declaration on a Mobility Partnership between the European Union and
Georgia, 2979th Justice and Home Affairs Council meeting, Brussels, 30 November
2009, para 23.
62
For example the joint declarations with Jordan and Morocco and the
Memoranda of Understanding with Iraq, Egypt, Ukraine and Azerbaijan.
63
Adoption of the recommendation on the implementation of the EUUkraine
Association Agenda, UE.UA 1057/09, 23 November 2009 and Decision on the establishment of a Joint Committee, UE.UA 1058/08 23 November 2009. Full text of the
EUUkraine Association agenda: UE-UA 1056/2/09 REV2, 15 October 2009.
64
Commission Staff Working Document, Mobility Partnerships as a Tool of the
Global Approach to Migration, Brussels, 18.9.2009, SEC(2009) 1240 final.
164
relations or customs control. Although during the earlier years of this policy
there was some thinking on novel cross-pillar legally binding agreements,
this idea never materialized. This is no doubt because such instruments would
have presented complicated legal questions on negotiation and adoption;65
instead soft law is the method of choice.66 The Mobility Partnerships stem
from a similar desire on the part of the Union to draw together different areas
of Union and Member State competence as reflected in its Global Approach
to Migration.67 The Commission makes no secret of the fact that the choice
to formulate these novel instruments in non-binding terms68 was an explicit
one. It states that While guaranteeing the expeditious establishment of the
current mobility partnerships, these arrangements also ensure that mobility
partnerships are flexible tools, which can be adapted according to current
needs, and which, in principle, will be supported by motivated signatories.
The aforementioned rationale of speedy adoption and flexibility were therefore instrumental in the Mobility Partnerships soft legal nature.
One point that deserves particular attention is that of motivated signatories. Indicative of the ENP as a laboratory for new forms of EU foreign policy,
this notion had previously emerged in embryonic form in the ENPs initiatives
on Justice and Home Affairs. In the context of EUUkraine ENP relations, the
first paragraph of the section on human trafficking in the updated action plan
on Justice, Liberty and Security reads: Promote cooperation, including
exchange of statistical data and experience, with Europol and interested
Member States as well as cooperation in international and regional law
enforcement efforts to combat trafficking in human beings, especially trafficking in women and children.69 The external dimension of justice and home
affairs is already marked by variable geometry.70 Through the Mobility
Partnerships, the phenomenon of Member States participating only when they
65
Hillion, C., Mapping-Out the New Contractual Relations between the
European Union and Its Neighbours: Learning from the EU-Ukraine Enhanced
Agreement, (2007) 12 European Foreign Affairs Review 169.
66
This will be shown more clearly below in the subsection discussing the
Ukrainian Association Agenda.
67
Communication from the Commission to the Council and the European
Parliament, The Global Approach to Migration one year on: Towards a comprehensive
European migration policy, Brussels, 30.11.2006, COM(2006) 735 final.
68
Mobility Partnerships as a Tool of the Global Approach to Migration, see note
64.
69
Revised EUUkraine Action Plan on Freedom, Security and Justice:
Challenges and strategic aims, 8. (emphasis added).
70
Martenczuk, B., Variable Geometry and the External Relations of the EU:
The Experience of Justice and Home Affairs in Martenczuk, B. and van Thiel, S. (eds),
Justice, Liberty, Security: New Challenges for EU External Relations (Brussels:
Brussels University Press, 2008).
165
consider it in their individual interest is thus being embedded further in EU

external action. On this issue the Commission stated: The partners join on a
voluntary basis and, once signed, the mobility partnerships remain open to the
participation of other interested Member States (for instance, the Netherlands
joined the mobility partnership with Cape Verde several months after its official signature).71 Depending on the point of view, this is a welcome or a
worrisome development: the Commission is no doubt correct that it aids flexibility of EU external policy, but from the perspective of the Union speaking
with a single voice it only adds further complexity. In the context of ENP
action plans, the notion of interested Member States was very much in a fledgling stage, and the Mobility Partnerships have elevated this ad hoc mode of
enhanced cooperation in EU external policy to a more mature stage. That this
option is now open to EU external action in the field of Justice and Home
Affairs is intimately connected to the non-legally binding nature of international commitments of the Union.
A closer analysis of the Mobility Partnerships shows that their soft legal
status is notably connected to overcoming obstacles that stem from the EUinternal division of competences while the EU remains effective and capable
as an international actor. The Member States commonly exhibit a strong desire
to maintain a strong hand in migration issues, in particular in areas beyond
illegal migration. The benefit of the soft legal mobility partnerships is then that
the external dimension of EU action can indeed be more global in the topical sense, and also incorporates initiatives on legal migration and labour
market access. That this explains the non-legal nature of the Mobility
Partnerships is underlined by the fact that even in such a legally non-binding
document, it was necessary to state that further initiatives in relation to
employment conditions for migrants would fully respect Signatories [for
example, Member States] competences in this field.72 Aside from that
disclaimer, in concrete terms the annex to the Mobility Partnership with
Georgia truly reveals the mixed nature and diversity of interests on the part of
the EU member states; for example, the addendum includes the following
statement: Objective: Offering better access to Member States labour
markets. This is then (somewhat) concretized by the adding of facilitate
access to the national labour markets, under certain conditions (FR, PL).73
71
Mobility Partnerships as a tool of the Global Approach to Migration, see note
64.
72
Council of the European Union, Joint Declaration on a Mobility Partnership
between the European Union and Georgia, JHA Council, Brussels, 30 November 2009,
3.
73
Joint Declaration on a Mobility Partnership with Georgia, Addendum one,
16396/09, Brussels, 20 November 2009, 9.
166
Though admittedly vague and requiring further elaboration through the relevant institutional structures, it implies that the willing/interested Member
States in this field are France and Poland. This is repeated in different fields of
the Mobility Partnership: under the heading support for voluntary and forced
returnees, it says that the Netherlands will support the objective of providing
free legal advice and psycho-social support for reintegrating returned
migrants; whereas Germany will provide information and financial support
to highly skilled migrants willing to return to Georgia.74 It is indeed difficult
to conceive of such specificity and diversity in a legally binding mixed agreement on migration. In terms of experimentation that originated in the
European Neighbourhood Policy, this shows the maturation of the notion
motivated signatories or interested member states, cooperating through
non-legally binding instruments of Union external relations.
This brief examination of the Mobility Partnerships illustrates that the
factors explaining the choice for soft legal instruments in the ENP similarly
inspired new instruments towards creating an effective external migration
policy for the Union as a whole. Of course, these few paragraphs are by no
means a complete assessment of the Mobility Partnerships, and this analysis
has not assessed whether the substance of these Partnerships indeed
contributes to the ENPs objectives of prosperity and stability in the neighbourhood and not just to security of the Union. Writing on the Moldovan
mobility partnership, one commentator was certainly sceptical. On the
comprehensiveness of the ENP, Parkes argues that the original character of
the ENP is being lost as the Neighbourhood Policy becomes a mere conduit
for the implementation of other policy areas.75 On the issue of substance, this
author argues that these novel instruments have lost sight of the overarching
strategic objectives that originally guided the ENP.76 That last observation
raises the question as to the impact of progressive experimentation on the
overall objectives of the ENP. Successive experimentation with new instruments is evidently not purely a procedural and institutional matter, and indeed
could be related to the Union failing to steer a steady substantive policy course
in its external relations. Parkes argues that the disconnect between the
Mobility Partnerships and the over-arching strategic objectives of the ENP
notably lies in the Union abandoning its commitment to fundamental values.
Exigencies of space do not permit a deep engagement of the fundamental
values that underpin the ENP,77 but arguably that disconnect was not intro74
75
Idem, 9.
Parkes, R., Mobility partnerships: valuable addition to the ENP repertoire?,
2009/03 Working Paper German Institute for International and Security Affairs, 1.
76
Idem, 5.
77
Petrov, R. and Leino, P., Between Common Values and Competing
167
duced by the Mobility Partnerships and already existed in the action plans
before that.78
In conclusion, no doubt a successive flow of new soft legal instruments are
no guarantee for a more capable Union in policy substance, but the example
of the action plans and the Mobility Partnerships do show their operational
utility in support of that objective. The example of the EUUkraine
Association Agenda will further support that argument.
The EUUkraine Association Agenda
A second instrument that deserves attention in this context is the EUUkraine
Association Agenda. Unlike the Mobility Partnerships this novel instrument is
truly a second generation ENP action plan and therefore can provide insight
into the lessons learnt from more than five years of implementing the ENP.
The ENP action plans between the EU and ENP partner countries generally
had a lifespan of between three and five years, prompting the Commission to
publish a non-paper on the successor documents to current ENP action plans
in December 2008.79 This non-paper acknowledged that these soft legal
instruments had been most useful in conducting the ENP, but made several
suggestions towards improving their effectiveness. First, the Commission
indicated that the successor documents should allow for the broadening of the
areas of cooperation during their duration, if appropriate.80 The key to these
soft instruments operational potential was indeed flexibility from the outset,
and it is then interesting that the Commission found that the second generation
of soft instruments ought to be formulated in a way that allows greater adaptability to evolving needs. This prompts the question as to what was lacking in
the first generation ENP action plans. Second, the Commission stated that the
new instruments should reflect more fully joint ownership and the partners
own reform agenda. This statement follows pervasive critique that the first
generation action plans mostly reflected the Union agenda toward the ENP
partners. Third, They should be stand-alone documents. They should
continue to be political documents, i.e., not legally binding and therefore
Universals: The Promotion of the EUs Common Values through the European
Neighbourhood Policy, (2009) 15 European Law Journal, 65471.
78
I flesh out this argument further in the context of my doctoral dissertation. See
Van Vooren, B., A paradigm for coherence in EU external relations law: The European
neighbourhood policy, European University Institute, May 2010, Chapter 6.
79
Non-Paper expanding on the proposals contained in the Communication to
the European Parliament and the Council on Implementation of the European
Neighbourhood Policy in 2007, COM (2008) 164 of 3 April 2008. On 9 April 2010
this document was no longer available on the ENP page of the European Commission.
80
Non-Paper, 2.
168
amenable to adaptation according to evolving needs.81 Their political nature

needs no further comment, although the interesting notion of second generation instruments being stand-alone documents received no further attention
in the non-paper. This is notable, since the ENP action plans had always been
legally and politically constructed as decisions of the respective cooperation
or association councils to implement the underlying contractual agreement.82
They were therefore certainly not stand-alone documents but connected to a
legally binding association or partnership and cooperation agreement.
The fourth and final point is found under the heading continuity in the
non-paper, and is interesting as it elaborates on the function of these second
generation instruments in future ENP relations: The new documents should
build on the current ones, which have served the reform agenda well.
However, with regards to countries which are upgrading relations with the EU,
a more radical change in the title, form and content of the documents may be
appropriate, in order to promote preparations for the implementation of the
new agreements or status (for instance, the documents may need to have links
to certain annexes of the agreements to maintain coherence).83
On 23 November 2009, the first such successor document was adopted at
the EUUkraine Cooperation Council in the form of the Association
Agenda.84 A first and broad observation is indeed the level of continuity with
the ENP action plans. The structure of topics included in the Agenda is largely
copied from the action plans, which is unsurprising since many topics have not
been implemented fully. However, there are some interesting developments
that point to the process of experimentation and learning on the instruments
through which the EU conducts its ENP. The first is that of joint ownership.
From a purely textual-linguistic perspective, initiatives that foresee mutual
exchanges between the parties, dialogue, and common and joint initiatives
have more than doubled in comparison to the ENP action plan.85 To ensure
that this commitment goes beyond rhetoric, the Association Agenda states that
81
82
Idem, 1.
See for example in the case of Ukraine: Council Decision on the position to
be adopted in the Association/Co-operation Council Ukraine, Brussels, 5428/1/05 REV
1 (9 February 2005).
83
Idem, 2.
84
Co-secretary of the EUUkraine Cooperation council, Provisional
EUUkraine Association Agenda, Brussels, 15 October 2009 UE-UA 1056/2/09 REV
2 Adopted by the EUUkraine cooperation council of 23 November 2009 and entered
into force on 24 November 2009. Available from: http://ec.europa.eu/external_
relations/ukraine/docs/2010_eu_ukraine_association_agenda_en.pdf (link valid on 9
April 2010).
85
This finding is based on quantitative content analysis carried out in the
context of my doctoral dissertation. Van Vooren, B., see note 78.
169
a new Joint Committee at Senior Officials level will be established to review

progress in implementing the Association Agenda as well as future priorities
and any necessary adjustments to the Association Agenda. The Joint
Committee will meet regularly, at least once per year. Either side may carry
out its own review of progress in implementing the Association Agenda independently of the Joint Committee.86 Hence, this is an affirmation of a first
adaptation of ENP instruments and institutions responding to pervasive
critiques on the absence of joint ownership in the ENP,87 as indicated in the
2008 non-paper of the commission.
The second interesting feature of the Association Agenda is the stand-alone
nature of this soft instrument, which arguably indicates that a hardening of
the soft legal nature of the second generation action plans has taken place. This
observation stems from the position of the Association Agenda in relation to
three current and future legally binding instruments: the EUUkraine PCA
which is still in force, the Association Agreement to come into force in a few
years depending on the negotiation and ratification process, and the interim
agreement expected to enter into force long before that. A key conclusion
emerging from a thorough reading of the Association Agenda is that more so
than the Action Plans, the connection between the Association Agenda and the
underlying Partnership and Cooperation Agreement has been completely
severed. What is more, the logic of the ENP action plans is now reversed:
whereas the action plans were meant to implement the PCAs, the priorities
agreed in the Association Agenda will complement the responsibilities of the
EU and Ukraine to implement in full the provisions of the EU-Ukraine
Association Agreement once it enters into force.88 The evolution from the
action plans is significant: the Association Agenda is indeed a stand-alone
document as mentioned in the December 2008 non-paper.
In substance, the Association Agenda deepens the path taken in the Action
Plans, by far overtaking the substantive provisions of the PCA in scope and precision. In terms of the instruments guiding the EUUkraine bilateral relations, the
86
UE-UA 1056/2/09 REV 2, 36. Alongside the adoption of the Association
Agenda the PCA Council adopted a formal decision on setting up this new institutional
layer, see: Proposal for a Council Decision on the position to be adopted by the
Communities and its Member States within the Cooperation Council established by the
Partnership and Cooperation Agreement establishing a partnership between the
European Communities and their Member States, of the one part, and Ukraine, of the
other part, with regard to the adoption of a Recommendation on the implementation of
the EUUkraine Association Agenda and of a Decision on the establishment of a Joint
Committee. Brussels, 22.7.2009, COM(2009) 381 final.
87
For example: Bobitski, N., Do Ut Des? The Need for True Reciprocity in the
European Neighbourhood Policy, (2008) 13 European Foreign Affairs Review 449.
88
Idem, Page 5.
170
Association Agenda has thereby in practice become the key tool to organize
EUUkraine relations in anticipation of a new legally binding replacement for
the PCA. The language of the Association Agenda then also makes clear that
this function of the Association Agenda is not simply a purely transitional
arrangement: when the legal instrument finally comes into force, its operational function will remain, and the document will be revised on a yearly basis
by both parties. Hence, following the experiment of the ENP action plans, the
method of a legally binding agreement complemented with a soft legal operational document has now been firmly entrenched in the toolbox of EU external action.
CONCLUSION
The title of this chapter refers to the Unions progressive experimentation in
the neighbourhood, implying an evolution towards a desirable objective. The
2003 European Security Strategy defined that objective as a more capable,
more coherent and more active European Union. Experimentation refers to the
continuous and ever-ongoing process of grouping together different concepts,
instruments and initiatives in pursuit of that objective. In the light of the nature
of the Union as an international actor, this constant experimentation stems
partly from the need to accommodate the internal legal and political pluralism
of the EU.
This chapter has shown that experimentation seen from that perspective is
a double-edged sword: geographic comprehensiveness was the outcome of a
rather awkward political compromise. While it has since been largely abandoned, it was nonetheless helpful in attaining a more ambitious ENP for the
Union as a whole. A point confirming the deconstruction of the ENPs
geographic comprehensiveness emerges from the Association Agenda
discussed in the third section. It is indeed notable that this second generation
action plan no longer mentions the European Neighbourhood Policy as the
context within which it was drawn up, and only refers to the Eastern
Partnership.89 Geographic comprehensiveness as a strategic guiding concept
for EU engagement with the neighbourhood has largely come to an end, to the
extent that such ever truly was the case. From an external policy perspective
it indeed made little sense to overload a single policy with countries with such
diverse political and socio-economic backgrounds. However, it has been
pointed out that geographic comprehensiveness did allow for better navigating
the internal diversity that marks the Union as an international actor. Member
89
EUUkraine Association Agenda, see note 84.
171
States interests are historically very divergent in the neighbourhood, and

during the conceptualization of the ENP it was necessary to accommodate
these different interests. Hence, the experiment in geographic comprehensiveness positively contributed to advancing towards a more capable, more coherent and more active European Union in the neighbourhood.
A similarly nuanced conclusion emerges from the subsequent section which
pointed to the utility of soft legal instruments in attaining that objective. The
study of the Mobility Partnerships and the Association Agenda has indicated
that through the ENP, soft legal instruments have gained a prominent place in
EU external action for their flexibility and other operational benefits. It allows
including interested Member States in working more closely with the institutions in EU external relations, while avoiding discussions over competence.
The example of the Association Agenda then illustrated that soft instruments
can be speedily replaced and upgraded to politically underline the progressively strengthening relationship between the Union and the respective third
country. In that process they can furthermore operationally underpin cooperation towards a new legally binding agreement. However, the non-legal nature
provides no assurance for success. As was the case with the ENP action plans
themselves, and the mobility partnerships after that, these instruments are no
guarantee that the Union live up to its rhetorical commitments, notably to
fundamental values.
In conclusion, the ENP draws on pre-existing realities while experimenting
with a new geographic concept and soft legal instruments. This chapter
suggested that this kind of experimentation is inevitable in the light of the very
diversity which defines the nature of the European Union. Such experimentation is not necessarily negative, and its results can only be evaluated in a
nuanced way. Whilst experimentation is clearly no guarantee that, in policy
terms, the Union will indeed be more capable, more coherent, and more
active, the willingness of the Union to rely upon it as part of its external relations toolbox does contribute to attaining that objective.
6. The European Unions policy on

Kosovo
Stephan Keukeleire, Arben Kalaja and Artan
ollaku
INTRODUCTION1
The analysis in this chapter on the European Unions foreign policy in and on
Kosovo adopts a political perspective from the viewpoint of the specific
Kosovan context. The focus is not on the relevant EU institutions and decision-making processes in Brussels, but on the EU actors in Kosovo and on the
policy implementation and policy output on the ground. It not only illuminates
the EUs policy in Kosovo from an EU perspective (that is, to what extent does
this policy achieve the objectives that were determined), but also analyses and
assesses the EUs policy from a Kosovan perspective. In this context, it is
important to ask questions that would shed light on the EUs policy within the
specific Kosovan context, while examining the extent to which the EU takes
this context into account, or mainly follows its own Brussels agenda.
The specificity of the Kosovan context being the departure point of this
chapter, the following section provides a short historical background in order
to point to the dilemmas and challenges with which the EU is confronted in
this context, while the third section deals with the current legal, political and
socio-economic aspects of this context. The latter is not only useful to further
illuminate the policy challenges and dilemmas, but is also necessary to bring
to the fore the broader policy agenda from a Kosovan point of view and to
provide criteria against which to evaluate the EUs actions on and in Kosovo.
1
The analysis in this chapter is based on multiple sources, including insights
obtained through the personal involvement of A. Kalaja and A. ollaku in the agency
for Coordination of Development and European Integration (ACDEI) in Prishtina and
through research and interviews in Kosovo by S. Keukeleire in April 2008, April 2009
and JulyAugust 2009. The opinions expressed in this chapter are only the co-authors
and do not necessarily represent the views of the institutions for which they work.
Research for this chapter was also conducted in the framework of the Jean Monnet
Multilateral Research Network on The Diplomatic System of the European Union.
172
The EUs policy on Kosovo
173
The fourth and longest section in the chapter assesses the policy implemented
by the three main EU actors present in Kosovo but that are functioning rather
separately from each other: the EU Special Representative (EUSR), whose
activities are to a large extent curtailed due to the division among the EU
member states on Kosovos international legal status; the rule of law mission
EULEX Kosovo, which is the largest ever civilian European Security and
Defence Policy (ESDP) operation and which is involved in institution-building with regard to police, justice and customs; and the European Commission
Liaison Office (ECLO), which is the EUs permanent representation to
Kosovo, in charge of guiding institutional reforms in the framework of the
Stabilisation-Association process and for deploying EC assistance mechanisms within the enlargement policy, and as such, also oversees numerous
other agencies and actors involved in implementing the EUs enlargement
policy in Kosovo. This section particularly assesses both the commitments as
presented by the EU itself in its external communication and the underlying
paradigms and paradoxes: the political commitment with regard to the
EUSR, the operational commitment with regard to EULEX Kosovo, and the
reform-driving commitment with regard to ECLO.2
The overview of these three EU actors already points to what is also one of
the major features of this book: the attention to the high degree of crosspillarization of the EUs external relations, which is particularly pronounced
in its policy towards and in Kosovo. The EUs policy towards Kosovo indeed
covers the wide spectrum of (economic, political and security) components of
the EUs external relations, involving a wide scope of EU actors and policy
instruments. However, as this chapter demonstrates, this comprehensiveness
from an EU perspective (that is, covering the whole Brussels agenda and
Brussels arena) does not guarantee also that the policy be perceived as
comprehensive from a Kosovan perspective (that is, covering the whole
Kosovo agenda). This assessment also provides a building block for assessing
the relevance of the EU on the Kosovan scene as well as the EUs identity
two other major themes in this book.
HISTORICAL BACKGROUND
As part of the 1974 constitutional reform that liberalized the Yugoslav legal
order, Kosovo (and Vojvodina) gained an autonomous status with several statehood attributes, including legislative, judicial, and executive powers. Granting
them such a status had been in line with Titos overall policy of deterring Serb
See the EUs website EU in Kosovo (http://www.euinkosovo.eu/).
174
dominance within the federation.3 Titos death in 1980 marked a remarkable

shift from the ideology of brotherhood and unity to that of a centripetal
nationalism as a power game within the Serbian old communist nomenklatura, which then led to centrifugal reactions elsewhere in the founding
republics and ultimately to the violent disintegration of the whole federation
into independent states.4 The Serbian leaderships political priority to gain a
dominant position over the rest of the troubling federation, led to the revocation of the autonomous status of Kosovo and Vojvodina in 1989. Soon thereafter, Milosevic made sure that measures were taken to ensure that all
developments on the ground, either political or economic, be placed in close
Serbian hands. Ethnic Albanians, in turn, began a full-scale boycotting of what
was left from the once republic-like autonomous entity they had enjoyed, and
instead created their parallel state structures, centred around a Germany-based
exiled government (funded by a 3 per cent quasi-tax system contributed to
voluntarily by the Kosovo Albanian Diaspora), controlled by the then pacifist,
Rugova-led movement Democratic League of Kosovo (LDK). This was
based on the 1991 proclamation of Kosovo independence, which was recognized only by Albania. The parallel institutions (mainly in the education and
health sectors) were run by LDK, an all-encompassing political movement,
whose resistance to the Milosevic regime was based on a pacifist doctrine
combined with an expectation that the international community would at some
point help Kosovo Albanians oust Milosevics discriminating regime.5
Within Kosovo, opposition to such a pacifist approach became all the more
visible after the 1995 Dayton Peace Accords, which left the Kosovo issue out
and in fact relieved pressure on Milosevic, conditioning his regimes handling
of Kosovo with only an outer wall sanctions policy.6 The way was already
paved for the Kosovo Liberation Army (KLA) to make its intentions clear,
including through an increased number of attacks on Serbian forces in
3
Rogel, C., The Breakup of Yugoslavia and the War in Bosnia (London:
Greenwood Press 1998) p. 15.
4
Pesic, V., Serbian Nationalism and the Origins of the Yugoslav Crisis
(Washington: United States Institute of Peace, 1996) p. 2.
5
See Malcolm, N., Kosovo: A Short History (New York: New York University
Press 1998).
6
After the Dayton Peace Accords, arms embargo and trade sanctions on the
then Federal Republic of Yugoslavia (FRY) were lifted, but an outer wall of sanctions
on its membership of international organizations and international financial institutions
was still in force and their removal was subject to inter alia the cooperation with the
International Criminal Tribunal for the Former Yugoslavia (ICTY) and Kosovo issue.
For an overview of the outer wall sanctions concept, see Hasani. E. (1998) The
Outer Wall of Sanctions and the Kosovo Issue, http://www.sam.gov.tr/perceptions/Volume3/September-November1998/hasani.PDF (accessed 20/01/2010).
175
Kosovo, and soon after in spring 1998 Serbian raids into its strongholds led to
its base of support growing, in the context of heavy civilian casualties. The
growth of the KLA also meant an increasingly brutal reaction by Serbian forces,
which in turn called for a growing role of the international community. The latter
brokered a ceasefire in autumn 1998 and deployed a monitoring mission to
Kosovo, run by the Organisation for Security and Cooperation in Europe
(OSCE). However, the ceasefire was only valid until early 1999, when the Reak
massacre of civilians led to the Rambouillet Peace Process. Serbias strong
refusal to accept the resulting Accords led to the 72-day NATO bombardment
campaign, with the military conflict and Serbias campaign on the ground causing civilian casualties of over 10,000 and forcing out almost one million civilians. This new stage in the protracted Yugoslavia war that had started in 1991
and in which the EU had not been able to play a significant role also explains
why the EUs predominant focus in the 2000s would be on stabilization and
avoiding re-emergence of conflicts in this part of the continent.7
Pursuant to the Kumanovo Agreement,8 which was based on a political
agreement negotiated by Milosevic and the international envoy, Martti
Ahtisaari, Serbian forces withdrew from Kosovo, thus paving the way for the
NATO-led security force KFOR (Kosovo Force) to move in and for the
instalment of the United Nations Interim Administration Mission in Kosovo
(UNMIK), in June 1999. The establishment of UNMIK, one of the biggest
international administrations ever, was based on the United Nations Security
Council (UNSC) Resolution 1244 of 10 June 1999, which had placed Kosovo
under transitional UN administration, with UNMIK holding most of the
powers until its (partial) withdrawal following independence.9 The UN civilian administration was made up of four pillars: Pillar I on police and justice;
Pillar II on civilian administration; Pillar III on democratization and institution-building (led by the OSCE); and Pillar IV on reconstruction and economic
development, which was also responsible for the privatization process (led by
the EU).10
7
For an overview of the conflict, see Judah, T., Kosovo: War and Revenge
(Yale: Yale University Press, 2000); Mertus, J. A., Kosovo: How Myths and Truths
Started a War (Berkeley: University of California Press, 1999) ; Malcolm, N., op. cit.
note 5; Special issue on Kosovo, (2009) 85 International Relations 447.
8
Kumanovo Military Technical Agreement, http://www.nato.int/kosovo/docu/
a990609a.htm (accessed 8/11/2009).
9
United Nations, Resolution 1244 (1999) Adopted by the Security Council at
its 4011th meeting, on 10 June 1999, S/RES/1244 (1999), 10 June 1999, p. 8.
10
UNMIK Fact Sheet, http://www.unmikonline.org/eu/index_fs.pdf (accessed
8/11/2009); Reka, B., UNMIK as International Governance in Post-war Kosovo:
NATOs Intervention, UN Administration and Kosovar Aspirations (Pristina: Logosa
2003). For a critical assessment of UNMIK, see King, I. and Mason, W., Peace at Any
176
The early 2000s were dominated mainly by the UNMIK-steered reconstruction and initial institution-building efforts, with municipal and central
elections establishing local and central institutions, as well as efforts for
appeasement between Albanians and Serbs. The main guiding policies developed by UNMIK consisted of the Standards before Status approach and
economic transformation that took the form of privatization. The 20022003
Standards for Kosovo11 were translated into 109 objectives covering eight
fields: functioning of democratic institutions, rule of law, freedom of movement, sustainable returns and the rights of communities and their members,
economy, property rights (including cultural heritage), dialogue (both
PrishtinaBelgrade and regional) and Kosovo Protection Corps (KPC).12
With Kosovo seen as its backyard issue and with the previous failures in
mind, the EU had taken on a leading role in economic and political terms.
Firstly, through the European Agency for Reconstruction (EAR), the EU was
one of the main aid providers for the immediate post-war reconstruction.
Secondly, it controlled the whole process of economic transformation from a
state- and social-owned property system to a private one. Thirdly, it was the
EU that through UNMIK had backed the Standards before Status policy and
its logics which were closely aligned with the conventional pre-accession
process conducted by the EU within its general enlargement policy. Fourthly,
and related to this, Kosovo was included in the Stabilisation-Association
Process (SAP) and European Partnerships the EUs policy frameworks for
accession of the Western Balkan countries (see below).
The EUs policy under UNMIK had been focused on institution-building
and economic development, while the issue of political status was left to be
dealt with at a later stage. However, the March 2004 riots of Albanians against
both Serbs and the international community forced a shift in policy, with the
status solution becoming a priority. The process of negotiations with Serbia
Price: How the World Failed Kosovo (London: Hurst & Co. 2006); Special Issue:
Intervention and state-building ten years on, Journal of Intervention and
Statebuilding, 3(2), 135275.
11
Hand in hand with the gradual hand-over of responsibilities to the Provisional
Institutions of Self-Government (PISG), and with the aim of strengthening local
ownership in implementing these standards, Standards before Status were later
advanced into Standards for Kosovo.
12
UNMIK/PISG, Standards for Kosovo, Pristina, 10 December 2003,
http://www.unmikonline.org/standards/docs/leaflet_stand_eng.pdf (accessed 8/11/
2009). Interestingly, these standards were from the inception put within a broader
European perspective, as was already emphasized in the introductory text added to the
Standards for Europe document: The document sets out the standards that Kosovo
must reach []. These standards reinforce Kosovos parallel progress towards
European standards in the framework of the EUs Stabilisation and Association
Process, based inter alia on the Copenhagen criteria.
177
started in 2006, under UN auspices, based on an October 2005 UN report

which had found that although the Standards had not been fully met, the
process of negotiations needed to be launched in order to keep the stability in
the region.13 One year of status talks mediated by the UN Special Envoy
Ahtisaari did not bridge the diametrical opposite stances of Kosovo and
Serbia, which then led to Ahtisaari proposing, in early 2007, his
Comprehensive Settlement Proposal (CSP) and recommending an internationally-supervised independence, which opened the door for Kosovos independence.14 Endorsed by the UN Secretary General15 but not adopted by the
UNSC, the Ahtisaari plan was also rejected by Serbia. However a new, threemonth-long round of negotiations that began in autumn 2007 did not result in
any changes to the positions held by the parties involved. Parallel to this, the
EU had been involved in preparations for an ESDP mission foreseen to inherit
some of the UNMIK functions, especially in the rule of law sector.
On 17 February 2008, in a well-coordinated international move involving
mainly the US and the EU, Kosovo declared itself independent.16 So far, it has
not been recognized by all EU Member States (see below). Kosovo accepted
that, although not adopted by the UNSC, the Ahtisaari Plan became part of its
Constitution and invited the International Civilian Office (ICO) and EULEX
to support the new countrys state-building efforts. The group of states that
recognized Kosovo (or were about to do so) formed the International Steering
Group (ISG), which appointed Pieter Feith as the International Civilian
Representative (ICR) and mandated him to establish the ICO. The primary
purpose of the ISG is to support full implementation of the Comprehensive
13
United Nations, A comprehensive review of the situation in Kosovo (Eide
Report), Annex to the letter of Secretary General Kofi A. Annan to the President of the
Security Council, 7 October 2005. http://daccessdds.un.org/doc/UNDOC/GEN/N05/
540/69/PDF/N0554069.pdf?OpenElement (accessed: 8/11/2009).
14
United Nations Security Council, Letter dated 26 March 2007 from the
Secretary-General addressed to the President of the UN Security Council (S/2007/168,
26 March 2007), http://www.unosek.org/docref/report-english.pdf (accessed
8/11/2009); United Nations Security Council, Letter dated 26 March 2007 from the
Secretary-General addressed to the President of the UN Security Council. Addendum,
Comprehensive Proposal for Kosovos Status Settlement (S/2007/168/ Add.1, 26 March
2007), http://www.unosek.org/docref/Comprehensive_proposal-english.pdf (accessed
8/11/2009).
15
Ibid.
16
Kosovo Declaration of Independence, http://www.assembly-kosova.org/
?cid=2,128,1635 (accessed 8/11/2009). A comprehensive legal analysis of the Kosovo
issue, covering developments from 1974 until 2008 is provided in Weller, M.,
Contested Statehood: Kosovos Struggle for Independence (Oxford: Oxford University
Press, 2009); Weller, M., Negotiating the final status of Kosovo, Chaillot Paper, no.
114 (Paris: Institute for Security Studies of the European Union, 2008).
178
Settlement Proposal and to provide support and guide the ICR and the ICO in
fulfilling their mandate.17 Two weeks before the declaration of independence,
the Council of Ministers of the EU had already adopted its Joint Action on the
appointment of Feith as the EU Special Representative (EUSR)18 as well as
the Joint Action on EULEX Kosovo.19 Soon afterwards Feith took up his
double-hat function of EUSR and ICR as the head of the ICO/EUSR office,
with his ICR function giving him responsibility for overseeing the implementation of the Ahtisaari Plan. One day after the declaration of independence, the
Council of the EU adopted a new decision on the European Partnership with
Serbia including Kosovo as defined by United Nations Security Council
Resolution 1244, with the priorities for Kosovo included in a separate
Annex.20
UNMIK, on the other hand, re-configured its presence reducing its
mission, while holding on to a limited number of competencies, chiefly those
regarding the Serbian minority and particularly the northern part of Kosovo
(as the Serbs did not recognize the government in Kosovo and only accepted
UNMIK as legitimate actor).21 However, as a result of disagreement on independence of Kosovo within both the EU and the international community, the
smooth handover after a transitional period of 120 days of UNMIK-
17
The Member States of the ISG were 20 EU member states and five other
states that recognized Kosovo (Croatia, Norway, Switzerland, Turkey and the USA)
(http://www.ico-kos.org/?id=3&highlighting=cSP) (accessed 12/11/2009).
18
Council Joint Action 2008/123/CFSP of 4 February 2008 appointing a
European Union Special Representative in Kosovo, [2008] OJ L 42/88.
19
Council Joint Action 2008/124/CFSP of 4 February 2008 on the European
Union Rule of Law Mission in Kosovo, EULEX KOSOVO, [2008] OJ L 42/92.
20
Council of the European Union, 2008/213/EC: Council Decision of 18
February 2008 on the principles, priorities and conditions contained in the European
Partnership with Serbia including Kosovo as defined by United Nations Security Council
Resolution 1244 of 10 June 1999 and repealing Decision 2006/56/EC, [2008] OJ L80/46.
21
United Nations Security Council, Report of the Secretary-General on the
United Nations Interim Administration Mission in Kosovo, S/2009/300, 10 June 2009,
p. 4 http://www.unmikonline.org/docs/2009/unsg_kosovo_report-100609.pdf (accessed
14/07/2009). Following the declaration of independence, NATO reaffirmed that KFOR
would remain in Kosovo on the basis of UN Security Council Resolution 1244, with
over 14,000 troops from the NATO-led Kosovo Force (KFOR) still being deployed in
Kosovo to help maintain a safe and secure environment for all citizens and communities. In June 2008, NATO agreed to take on new tasks in Kosovo to support the development of professional, democratic and multi-ethnic security structures (NATO,
NATOs role in Kosovo, http://www.nato.int/cps/en/natolive/topics_48818.htm,
accessed 12/11/2009). Also other international actors, such as various UN Agencies,
the World Bank, the IMF, the OSCE and many NGOs and national agencies continued
to play a role in Kososo (see overview in: http://www.ks-gov.net/portal/eng.htm,
accessed 12/11/2009).
179
responsibilities to the local institutions, ICR/EUSR and EULEX (as foreseen

in the Ahtisaari proposal) could not take place as envisaged. Instead, what
was left on the ground were an increasingly unpopular UNMIK, the Serb
minority largely refusing to cooperate with the Kosovan authorities, a
Kosovan government aiming to implement the Ahtisaari proposal, an
ICR/EUSR that faced difficulties in coming to terms with its own double-hat
role in a context of internal divisions within the EU, and a preparatory
EULEX presence that still did not know what its actual mandate would entail
in view of the remaining disagreements on the status question. Whereas most
EU member states, the US and the Kosovan government took the position
that EULEX was grounded in Resolution 1244, this was rejected by particularly Russia and Serbia, which maintained that EULEX was not covered by
Resolution 1244 or any other mandate from the UN Security Council.22 The
disagreements on the status of EULEX also resulted in growing tensions
between the EU and the UN tensions which were rather unwelcome in view
of the increasingly tense security situation in Kosovo.23
UN Secretary General (UNSG) Ban Ki-Moon himself got involved in order
to break the deadlock by presenting a 6-point plan to the UNSC in June
2008.24 The plan gave a mandate to the UNSG Special Representative in
Kosovo (SRSG), to negotiate temporary agreements for Kosovo Serb-majority areas in six fields: police, courts, customs, transportation and infrastructure, boundaries and cultural heritage. In November 2008 the Security Council
approved this proposal that also foresaw the deployment of a status-neutral
EULEX under a continued UN overall authority, with Resolution 1244 staying in force.25 Through this decision, EULEX was legalized under Resolution
1244 ex post facto.26 The Ban plan thus paved the way for EULEX deployment, but also had a direct and severe impact on its mandate: UNMIK would
stay in Kosovo and would remain the official counterpart for the Serbs. This
had repercussions mainly for Kosovo Serb-dominated areas (particularly in
the north around Mitrovica, but also in smaller enclaves), where UNMIK
22
For a legal analysis, see de Wet, E., The Governance of Kosovo: Security
Council Resolution 1244 and the Establishment and Functioning of EULEX, (2009)
103 American Journal of International Law 83.
23
Gow, J., Kosovo The Final Frontier? From Transitional Administration to
Transitional Statehood, (2009) 3 Journal of Intervention and Statebuilding 251.
24
United Nations Security Council, Report of the Secretary-General on the
United Nations Interim Administration Mission in Kosovo, S/2008/354, 12 June 2008.
25
United Nations Security Council, Statement by the President of the UN
Security Council on Security Council resolutions 1160 (1998), 1199 (1998), 1203
(1999) and 1244 (1999), S/PRST/2008/44, 26 November 2008.
26
de Wet, op. cit. note 22, 89.
180
would continue to play a leading role, thus also increasing the risk of a de facto
division of Kosovos territory. Moreover, the operation of EULEX under a
continued UN overall authority also implied that, from a legal point of view,
the UN Special Representative could override any decision taken by EULEX
in those areas where it took over rule of law functions from UNMIK.27 This,
however, points to the potential of conflict in view of the de facto remaining
divergence between the various actors on the legal and political legitimacy of
both EULEX and UNMIK.
THE CURRENT LEGAL, POLITICAL AND

SOCIO-ECONOMIC CONTEXT
Kosovos International Legal Status and Domestic Legal Order
As yet Kosovo has a status only partially defined when it comes to its international legal identity and has, at the moment of finalization of this chapter,
been recognized by only 65 countries and has become a member of only two
international organizations (World Bank and IMF). Russian opposition to
Kosovo independence, as well as an insufficient number of states recognizing
it, have hindered any serious steps towards UN membership. The pace of
recognition has presumably declined as a result of the Serbian request for an
International Court of Justice opinion on the legality of Kosovos
Declaration of Independence.28 Only 22 of the 27 EU member states have
recognized Kosovo so far, with Spain, Romania, Slovakia, Greece, and Cyprus
refusing to do so, mainly due to internal domestic reasons (related to the position of minorities and secession movements within their own territories). The
non-recognition by five EU countries has left Kosovo the only potential candidate with no contractual relations with the EU. The lack of agreement as to
Kosovos recognition has forced the Union to propose the establishment of
some sort of contractual relationship in the form of a Trade Agreement, which
potentially could compensate for a classical Stabilization and Association
Agreement (SAA).29 However, Kosovo has signed bilateral agreements with a
27
28
Ibid, 91.
International Court of Justice, The General Assembly of the United Nations
requests an Advisory Opinion from the Court of Justice on the unilateral declaration of
independence of Kosovo, http://www.icj-cij.org/docket/files/141/14797.pdf (accessed
09/10/2009).
29
Commission of the European Communities, Communication from the
Commission to European Parliament and Council: Kosovo Fulfilling its European
Perspective, Brussels, 14.10.2009, COM(2009) 5343.
181
number of neighbouring and other countries covering trade, energy, transport

and home affairs. Moreover, Kosovo is involved in direct cooperation
concerning judicial matters with most of the countries recognizing it, while
UNMIK performs that function with the rest of them, including Serbia.30
Furthermore, Kosovo has also inherited all international agreements signed by
UNMIK on its behalf.31
The multifarious interventions of the international community and the
unresolved issue of its final legal status have resulted in a mishmash situation
in Kosovo especially when it comes to its internal legal order. The current
legal order consists of legislation adopted mainly under the supervision of
UNMIK and by post-independence Kosovan institutions. Based on a UNMIK
decision, the post-1989 legislation it considered non-discriminatory is still in
force, until eventually replaced by Kosovan legislation.32 Moreover, in Serbmajority areas, especially in the north but also in some smaller enclaves,
Serbian legislation continues to be applied by parallel institutions, notably in
the fields of justice, education and healthcare.33
In its Declaration of Independence, Kosovo has internalized the provisions
deriving from the Ahtisaari Status Proposal while also recognizing obligations
of the UNSCR 1244. Although they have not been adopted by the UNSC,
Kosovo has ensured the integration of Ahtisaari Proposal provisions into its
domestic legal order through adoption of its Constitution and other legislation.
Moreover, through its Constitution, Kosovo has also ensured direct application
of various international legal rules covering human rights and fundamental
freedoms and minority protection.34 Kosovo has also established its
Constitutional Court, consisting of six Kosovan and three international judges,
with the latter appointed by the European Court of Human Rights (ECHR) and
approved by the ICR/EUSR. When it comes to its judicial system, Kosovo is
in the process of adopting framework legislation on courts and prosecution
and consolidating its institutional setup in this area, notably through a vetting
process driven by the EU presence.35
30
Commission of the European Communities, Kosovo under UNSCR 1244/99
2009 Progress Report, Brussels, 14.10.2009, SEC(2009) 1340, p. 5.
31
Kosovo Declaration of Independence, http://www.assembly-kosova.org/
?cid=2,128,1635 (accessed 8/11/2009).
32
UNMIK Regulation 1999/24, http://www.unmikonline.org/regulations/
1999/re1999_24.htm (accessed 25/09/2009).
33
United Nations, A comprehensive review of the situation in Kosovo, op. cit.,
note 13.
34
Constitution of the Republic of Kosovo, Article 145(2), http://www.
kushtettakosoves.info/repository/docs/Constitution.of.the.Republic.of.Kosovo.pdf
(accessed 15/06/2008).
35
Independent Judicial and Prosecutorial Council, http://www.ijpc-kos.org/
default.asp (accessed 3/10/2009).
182
Political Context
Kosovo is governed by a political system consisting of two levels of governance: central and local/municipal. Its highest political institution, the
Parliament, consists of 120 elected representatives, 100 of them elected
directly through an open-list proportional electoral system, while the remaining 20 are guaranteed for minority representatives (10 for Serbs and 10 for
others).36 In addition to symbolic functions, the President, elected by the
Parliament with two thirds of votes for a term of five years, performs slightly
more functions than usually provided for in parliamentary systems, such as
leading foreign policy.37 Moreover, the President nominates the Prime
Minister in consultation with the political party or coalition that has won the
majority of the seats in the Parliament, while this appointment and all
members of the government are voted by the latter. Minorities are represented
in the government proportionally: if there are fewer than 12 ministers, two of
them have to be representatives of minority communities (one Serb and one
from others), and if there are more than 12 there has to be a third minister
representing the minorities. The same model applies for positions of deputy
ministers.38
Most political parties in Kosovo have emerged as a response to the Serb
regime in Kosovo and at the time of their establishment their ideological
differences chiefly centred on whether peaceful or violent means would be
applied in achieving a political status independent from Serbia. Most of the
main parliamentary political parties pursue centre-right policies, with those
perceived as left-wing gaining rather limited popular support in elections,
which is paradoxical given the underdeveloped economic situation and sectors
requiring direct government intervention and regulation. The pure proportional electoral system, in force under UNMIK, had contributed to overly
strengthening the position of leaders within respective parties, thus downplaying the importance of political programmes and policy choices. The application of a closed-lists proportional electoral system enabled party leaders to
handpick candidates and thus little or no room was allowed for internal
competition to develop.39 Furthermore, this electoral system has also
contributed to political parties focusing their attention on regions in which
their leaders originate. This tendency has been further fostered given the fact
that most of the party leaders have been trying to deter internal political party
competition by installing, in key positions, close allies mostly from the same
36
37
38
39
Constitution of the Republic of Kosovo, Article 64.

Ibid, Article 84.
Ibid, Articles 9596.
Interviews, Prishtina, April 2009.
183
regions, a tendency that has also been extended to appointments in public

administration.40 This, in turn, has added to the difficulties in combating widespread corruption41 in public institutions at all levels, also halting significant
progress to reforming them.
As a result of leader-driven political parties there has been little room for
civic participation in decision-making, and this has led to a growing gap in
communication between citizens and decision-makers, which in turn has
caused legitimacy deficiencies as indicated by the rapid decline of voter
turnout ever since the first election of 2000. The voter turnout in the first
national election of 2001 was 63 per cent,42 while in the 2007 national election it plunged to 40 per cent.43 On the other hand, the development of civil
society has been based on ad hoc donor-driven strategies, which in turn have
led to a lack of local ownership and this has hampered their effectiveness in
facilitating citizen participation in decision-making. While in other transitional
countries the participation in decision-making processes has been mainly
determined by the development of free political and ideological competition
and an increasing role of civil society, in the Kosovan context the presence of
the international mechanisms and the distribution of public functions between
local and international actors has further impeded citizen participation.
Finally, citizen participation in decision-making processes has been hindered
also by the long-term legacy of viewing state structures as alien to the domestic context with implications to individual safety and security, identified as a
tool in the hands of the other.44
Ever since the withdrawal of Serbian forces and administration from Kosovo,
most ethnic Serbs (especially in the north) have been organized in institutions
functioning in parallel to the Provisional Institutions of Self Government (PISG)
(established under the UNMIK umbrella) or the post-independence state institutions. With direct and open support by the Serbian government, these structures
have been operational in Serb-majority areas, especially in the northern part of
the country, an area that allows direct geographic ties with Serbia.45 Thus, in the
northern Serb-dominated municipalities, the local population utilizes these
40
41
Idem.
2009 Progress Report, op. cit. note 30, p. 11.
42
OSCE Mission in Kosovo (2001), Press release: Kosovos election hailed a
huge success, http://www.osce.org/kosovo/item_1_6411.html (accessed 20/12/2009).
43
Forum 2015 (2009), Elections and Political Parties in Kosovo,
http://www.forumi2015.org/home/index2.php?option=com_content&do_pdf=1&id=6
5 (accessed 20/12/2009).
44
Interviews, Prishtina, April 2009.
45
International Crisis Group (2009), Serb Integration in Kosovo: Taking the
Plunge, Europe Report, No. 200, 12 May 2009, p. 1.
184
structures for the provision of most of the public services, while the situation
seems to be shifting in the other enclaves deeper within the country, as the
considerable turnout in the latest Kosovo municipal elections indicated.
Kosovo institutions and most of the international presence consider these
structures illegal and have not established any form of relations with them.
Socio-economic Context
Kosovos general economic performance remains poor, as indicated by a
GDP of only around 3.4 billion.46 There are three fundamental factors
impeding Kosovos economic development: limited and unreliable electricity
supply, an underdeveloped agriculture (with inefficient, near-subsistence
farming, limited mechanization, and lack of technical expertise), and an
informal economy (encouraged by an annual per capita income of only
1,544 and a high unemployment rate). With international assistance,
Kosovo has so far been able to privatize 50 per cent of its state-owned enterprises (SOEs), which represents over 90 per cent in terms of value.
Furthermore, an unfavourable business climate and limited foreign investments further explain Kosovos inability to benefit from being one of the
most open economies in the region, as indicated by a huge importexport
negative balance. Though estimated to be rich in terms of natural, especially
energy, resources, Kosovos transitional economy largely relies on its
Diaspora and foreign aid, with remittances and donor aid each accounting for
about 15 per cent of GDP. Around 37 per cent of Kosovans live below the
poverty line.47 Although 70 per cent of the population lives in rural areas,
little or no attention has been paid to its development either by the international presence or the local institutions.48 It is interesting to note that 60 per
cent of GDP is made up of service revenues, which is explained by the large
international presence and a large public sector.49
The continuous weak state of the economy has led to a situation where
economic problems and particularly unemployment and poverty are seen,
46
2009 Progress Report, op. cit. note 30.
47
World Bank, Kosovo Country Brief 2010, http://web.worldbank.org/
WBSITE/EXTERNAL/COUNTRIES/ECAEXT/KOSOVOEXTN/0,contentMDK:206
29286~menuPK:297777~pagePK:1497618~piPK:217854~theSitePK:297770,00.html
(accessed 20/09/2010).
48
Zaum, D. (2009), States of Conflict: A case study on statebuilding in Kosovo,
London: Institute for Public Policy Research, p. 10.
49
See also the analysis of the economy in Kosovo in: Commission of the
European Communities, Kosovo under UNSCR 1244/99 2009 Progress Report, op .cit.
note 30, pp. 2144, 4952.
185
particularly by the Kosovo-Albanian population, as the main threat to stability

in Kosovo,50 which in turn is seen as containing considerable potential for
social conflict. In 2007 the unemployment rate was 43 per cent in general and
70 per cent amongst the population younger than 25.51 The potential for social
conflict is further fuelled as each year around 20,000 youngsters enter the
labour market, while new employment opportunities are not generated. This
has not only produced a demographic challenge for the already weak economy, but it also places burdens on the development of a qualitative higher
education system as the very limited number of employment opportunities is
usually substituted with university enrolment. The weak education system is a
result of the lack of tradition, discrimination and the lack of attention by both
international and local actors. Thus, in the 2000s, more than 30 private universities were opened in Kosovo, but only three of them have been found to
comply with international higher education standards.52
EU ACTORS AND POLICIES IN KOSOVO

It was during the UNMIK era that the EU started preparations for inheriting
the role of the main actor on the ground, with the European Commissions role
in UNMIKs Pillar IV and the EU Planning Team being the most visible indication of that.53 The phasing out of UNMIK has made the EU become the
main forefront actor of overall developments in and over Kosovo. However,
the EUs international actorness with regard to elsewhere in the world has
been either that of a trade partner, aid provider or that of a complete integrator through enlargement,54 but none of these forms of actorness was considered sufficient for a context such as Kosovo, where more comprehensive
efforts were needed.
While UNMIK had assumed the position of the holder of all power, which
then was planned to be gradually transferred to the local institutions, what
50
UNDP Kosovo, Fast Facts Early Warning Report, No. 26, November 2009,
p. 6. http://www.ks.undp.org/repository/docs/Fast_Facts_26_English.pdf
51
2009 Progress Report, op. cit. note 30.
52
Kosovo Accreditation Project Report, British Accreditation Council, July
2008, London, http://www.masht-gov.net/advCms/documents/Kosovo_ Accreditation_
Project_Report.pdf (accessed 16/11/2009).
53
Council Joint Action 2006/304/CFSP [2006] OJ L112 of 10 April 2006 on the
establishment of an EU Planning Team (EUPT Kosovo) regarding a possible EU crisis
management operation in the field of rule of law and possible other areas in Kosovo.
54
On the EUs actorness, see Bretherton, C. and Vogler, J., The European Union
as a Global Actor (London: Routledge, 2006).
186
happens with the post-independence EU presence in Kosovo is that it chiefly

holds on to functions which could not be trusted to the local authorities, either
because of their weakness and inexperience (security issues, rule of law) or
because of fear of ethnic tension (minority issues). Thus, ICO/EUSR has been
mainly dealing with the implementation of the Ahtisaari Plan, although its
focus has been mainly on issues concerning the minorities and security sector,
while EULEX is engaged operationally with the reform of the rule of law
sector. On the other hand, the European Commission Liaison Offices role has
largely remained the same in post-independence Kosovo that is, supporting
institutional and economic reforms.
In order to understand the current role of the EU in Kosovo, this section
takes a closer look at each of its presences on the ground, taking as a point of
departure the commitments which the EU defined for itself in its external
communication: the political commitment of the EUSR, the operational
commitment of EULEX Kosovo, and the reform-driving commitment of
ECLO.55 The question is what each of these commitments means in practice.
ICR/EUSR: Which Political Commitment?
The ICR/EUSR is a double-hatted institution run by a single official holding
the position of the International Civilian Representative for Kosovo (ICR) and
EU Special Representative (EUSR). In February 2008 the Dutch diplomat
Pieter Feith was appointed to hold these two positions.56 The ICRs mandate
derives from Ahtisaaris Comprehensive Settlement Proposal (CSP) and the
International Steering Group (ISG) (consisting of the countries that recognized
Kosovo) and is politically legitimized through the explicit invitation of an
international civilian presence in Kosovos Declaration of Independence.57
The EUSRs mandate derives from the EU Council of Ministers Joint Action
2008/123/CFSP of 4 February 2008.58 In its ICR capacity, this actor is responsible to supervise the implementation of this Settlement and support the rele-
55
See the EUs portal page EU in Kosovo, http://www.euinkosovo.eu/
(accessed 3/10/2009).
56
Before his appointment, Mr. Feith was a major diplomat in the team of Javier
Solana (at that time the High Representative for the CFSP of the EU) as well as the
EUs Civilian Operations Commander for all ESDP civilian crisis management operations.
57
International Civilian Office Kosovo, International Steering Group
(http://www.ico-kos.org, accessed 12/11/2009).
58
Council Joint Action 2008/123/CFSP of 4 February 2008 appointing a
European Union Special Representative in Kosovo [2008] OJ L 42/88; International
Civilian Office Kosovo, International Steering Group (http://www.ico-kos.org,
accessed 12/11/2009).
187
vant efforts of Kosovos authorities.59 Its mandate extends to being the final
interpreter of the CSP, taking actions to remedy the breaches of the CSP
through annulment of laws and decisions taken by the Kosovo institutions and
also to sanction or dismiss officials if their actions breach CSP provisions.60
On the other hand, the EUSR is mandated to give EU advice and support to
the local institutions, promote EU coordination, give political guidance to
EULEX as well as promote human rights, fundamental freedoms and even
regional cooperation.61 While the ICR/ICO (who reports to the ad hoc ISG)
recognizes the independence of Kosovo, the EUSR (who reports to the
European Council), due to the EUs internal division on the international legal
status, remains status-neutral, which points to the problematic situation in
which the ICR/EUSR has to work. The divisions within the EU on the recognition of Kosovo have kept EUSR mainly a small and mostly non-visible actor
(employing only four staff) while the ICOs functioning has been more operationalized, employing around 200 staff with an annual budget of 300 000.62
The schizophrenic position of the ICR/EUSR also points to, what is for the
Kosovo majority, a painful truth behind the label that can be found on the EUs
portal page EU in Kosovo: EU Special Representative The political
commitment.63 Due to the EUs internal discord on Kosovos independent
international legal status, the EUSR does indeed not yet stand for a political
commitment regarding a clear timeline of Kosovos main strategic goal,
namely its formal integration with the EU and, in a first stage, the perspective
of being recognized as a candidate state that is offered this perspective on
equal footing with its Western Balkans neighbours. Nevertheless, through the
double-hatted function of the ICR and EUSR, the 22 EU member states that
recognize and support Kosovos independence are politically capable of
implementing their policy in support of the new state. Hence, although handicapped as a result of his restrictive EUSR mandate, Feith in his function of
ICR/EUSR does embody the political commitment of these countries to
Kosovo. This double-hatted function also reflects the EUs creative way of
dealing with internal diverging views in such a way as to avoid a stalemate in
the EUs policy.64 But on the other hand, the awkward situation of the
59
United Nations Security Council, Letter dated 26 March 2007 from the
Secretary-General addressed to the President of the UN Security Council. Addendum,
Comprehensive Proposal for Kosovos Status Settlement, op. cit. note 15, p. 53.
60
Ibid.
61
Council Joint Action 2008/123/CFSP, Article 2, op. cit., note 58.
62
International Civilian Office, http://www.ico-kos.org/?id=2 (accessed
15/10/2009).
63
http://www.euinkosovo.eu/.
64
Double-hatted functions have been used before to overcome diverging views,
such as the initial dual mandate of Mr Solana as High Representative for the CFSP of
188
ICR/EUSR mirrors the perception of the EU as an international actor that is

not able to agree on politically important issues and that in this sense is only
of limited international relevance even though the EU de facto carries the
bulk of the work on the ground.
Although the ICO and the ICR cannot be defined as EU actors as their
mandate derives from the ISG it is important to examine their role on the
ground since they are supported by the 22 EU Member States recognizing
Kosovo. So far, the ICOs activities have been linked to the adoption of the
Constitution, and the ensuing 43 laws related to the implementation of the
CSP. As prescribed by the Proposal itself, its activities to a large extent have
been focused on moderating the tension between communities and ensuring a
protective environment for the minorities, mainly through embedding into the
Kosovan legal and institutional order mechanisms allowing for more
autonomous action for minorities and less interference from Prishtina. This
has chiefly been done through the activities in the area of decentralization,
whereby the legal framework has been completed; local governments powers
have expanded and, in concerted efforts of international and local institutions,
under direct control of the ICR Pieter Feith, new, mainly Serb-majority municipalities have been established.65 The creation of a protective environment for
minorities in Kosovo has also led to a number of activities mainly with a view
to preventing events such as the March 2004 riots from happening again. Thus,
the completion of legal and institutional frameworks at the central and local
level has led to protective zones being established around cultural and religious zones (supported by reinforced KFOR presence, yet gradually being
handed over to the Kosovo Police), as well as to other initiatives, such as
mechanisms to enable tax exemption for the economic activities of the Serbian
Orthodox Church.66 Apart from being involved in creating a peaceful environment for minorities, the ICO has also been active in sovereignty-related
institution-building with a focus on the security sector, through involvement in
the establishment of a Ministry of Kosovo Security Force, the Kosovo
Intelligence Agency and the Civil Aviation Authority, while it was also active
in the process of border demarcation with Macedonia.67
the EU and Secretary General of the Western European Union (WEU), or the new dualhatted mandate of the new position created in the Lisbon Treaty: the function of High
Representative of the Union for Foreign Affairs and Security Policy who is also the
Vice-President of the European Commission.
65
International Civilian Office, Report of the International Civilian
Representative, 27 February 2009, http://www.ico-kos.org/d/ISG%20report%20final
ENG.pdf (accessed 12/04/2009).
66
Ibid.
67
The ICO has also been involved in the economic sector through overseeing
the completion of legal frameworks as well as high-level appointments in the privati-
189
As it can be deduced from above, the main paradigm on which the ICO
functions is the instalment of a political and legal order that provides guarantees for minorities and fosters multi-ethnicity. Based on the legacy of conflict
and inter-ethnic hostilities, the basic premise of this paradigm focuses on
securing stability in Kosovo, through providing minorities with sufficient
autonomy from the majority-controlled central government and also ensuring
that both cultural and religious heritage (especially that of minorities) is safe
from inter-ethnic tensions that have caused much violence in the past. This
premise further involves an understanding of the tension between Albanians
and Serbs as the main threat to stability within Kosovo.
However, opinion polls indicate that this premise is shared by neither ethnic
Albanians nor ethnic Serbs in Kosovo, who consider unemployment and
poverty as the main potential sources of instability (although ethnic Serbs
mention further aggravation of interethnic relations as a second major potential source of instability).68 Moreover, the multi-ethnicity paradigm is considered by both ethnic Albanians and Serbs as rather problematic: for the
Albanians in view of their experience under Serbian discrimination and
violent oppression in the 1990s, and for the Serbs in view of their experience
during the 2004 riots. This also points to the gap between what the international community and the internal actors consider as both feasible and desirable.69 This is also reflected in reality: as the integration of the Serb minority
in the political, economic and social system, mainly controlled by the
Albanian majority, proved to be very difficult, the choice has been made to
draw a line between the two communities, either institutionally (that is, by
establishing new municipalities where they make up the majority of the population), or territorially (for example, by establishing special protective zones
around orthodox cultural heritage). In this sense, in view of the EUs political
inability to commit itself to Kosovos potential EU membership on an equal
footing with its Western Balkans neighbours, the predominant multi-ethnicity
paradigm and the related strong concern for minorities (in the current context
mainly the Serb minority) can be perceived as the real political commitment
of the EU. However, this does not correspond to the predominant political
priorities of the majority population, hence the democratic deficit of local
institutions entrenched in such a strictly internationally controlled legal order.
zation authority and property related body. ICO, Implementation of the CSP-State of
Implementation, http://www.ico-kos.org/d/CSP%20Matrix%2022-09-09.pdf (accessed
14/10/2009).
68
UNDP, Early Warning Report, April 2009, p. 5, http://www.ks.undp.org/
repository/docs/FF_24_English.pdf (accessed 19/12/2009).
69
Interviews, Prishtina, April 2008 and April 2009.
190
EULEX: Which Operational Commitment?

The very day when it adopted its Joint Action appointing the EUSR, the
European Council also adopted its Joint Action 2008/124/CFSP on the EU
Rule of Law Mission in Kosovo (EULEX Kosovo).70 EULEX is given an
operational legal mandate focusing on three fields of rule of law: judiciary,
police and customs. Its overall objective is to assist Kosovan law enforcement
authorities in their progress towards sustainability and accountability and in
developing and strengthening an independent and multi-ethnic justice system,
police and customs service, ensuring that they are free from political interference and are acting in compliance with internationally-recognised standards
and European best practices.71 The methodology to achieve this consists of
monitoring, mentoring and advising (the so-called MMA functions), while
retaining certain executive responsibilities, with mechanisms deployed in full
co-operation with EC Assistance Programmes. As the largest and most costly
ESDP mission to date and the first ever with executive powers EULEX has
(late 2009) a staff of around 2,600 (1,585 internationals and 1,015 locals), with
a total budget of 205m for its first 16 months of operation. Its staff members
are drawn from nearly all EU member states and a number of third countries
that have recognized Kosovo (the US, Turkey, Norway, Switzerland, Croatia
and Canada). Remarkably, also Spain, Greece, Slovakia and Romania EU
countries that have not recognized Kosovos independence do contribute to
EULEX; Romania with around 200 people even being the main contributor to
this ESDP operation.72 EULEXs structure can be broken down into its
Brussels-based strategic/political part and the Prishtina-based operational one.
The mission is under the political control and strategic direction of the
European Councils Political and Security Committee and the overall authority of the SG/HR, through the Civilian Planning and Conduct Capability
Director, who serves as EULEXs Civilian Operation Commander. While the
latter ensures implementation of PSC decisions (including strategic instruc70
Council Joint Action 2008/124/CFSP, op. cit., note 19. For a more detailed
analysis of EULEX Kosovo, see Pond, E., The EUs Test in Kosovo, (2008) 31 The
Washington Quarterly 97; Keukeleire, S. and Thiers, R., EULEX Kosovo: Walking a
thin line, aiming for the rule of law, in Wouters, J., Blockmans, S. and Ruys, T. (eds),
The EU and Peacebuilding: Policy and Legal Aspects (The Hague: TMC Asser Press,
2010).
71
For further elaboration of these mission goals, see EULEX Kosovo, EULEX
Programme Report, Prishtina, July 2009, pp. 113, http://www.eulexkosovo.eu/news/docs/programmereport/EULEX-PROGRAMME-REPORT-July2009-new.pdf (accessed 3/10/2009).
72
EULEX, EULEX Staff Info, http://www.eulex-kosovo.eu/?id=36&m=2
(accessed 20/10/2009).
191
tions, advice and technical support to the Prishtina-based Head of Mission),

full command over EULEXs staff rests with the authorities of the respective
seconding authorities, with only operational control transferred to him/her.73
EULEXs operational structure is under the control and command of its
Head of Mission, and consists of three Components: Police, Justice and
Customs. The three Components are responsible for assisting their respective
Kosovan counterparts justice institutions (including penitentiary), the Kosovo
Police and Customs in improving the functioning and strengthening the institutions as multi-ethnic, free from political interference, accountable, sustainable, and acting in compliance with international standards and best European
practices. In terms of staff distribution, the Police Component is the biggest,
with a final target of around 1,400 police officers to be deployed all over
Kosovo. The second is the Justice Component, comprising around 300 (10 per
cent of the total) staff, out of which around 70 are in the prison system, 40 are
judges and around 20 are prosecutors. The Customs Component has a final
target of 46 staff members (27 internationals, 19 nationals). In each component,
EULEX staff (police officers, judges, prosecutors and customs specialists) are
located with their Kosovo counterparts in the relevant institutions (Kosovo
Police, relevant ministries, judicial institutions and Kosovo Customs).
The MMA approach is the main methodology used in the Police and
Customs Components, which are considered the easier parts of the Mission.
However, this approach is complemented by significant executive functions in
the Justice Component, which reflects the limited trust in the judicial system
in Kosovo a lack of trust that is also found in public opinion.74 These executive functions imply that EULEX judges and prosecutors do not only have to
monitor, mentor and advise their local counterparts on all areas related to the
rule of law,75 but also retain certain executive responsibilities in order to
ensure that cases of war crimes, terrorism, organised crime, corruption, interethnic crimes, financial/economic crimes and other serious crimes are properly investigated, prosecuted, adjudicated and enforced, according to the
applicable law, including, where appropriate, by international investigators,
prosecutors and judges jointly with Kosovo investigators, prosecutors and
judges or independently [].76 In practice, this is translated into a system of
73
74
Council Joint Action 2008/124/CFSP, op. cit., note 19, Article 7.

UNDP Kosovo, Fast Facts Early Warning Report, No. 26, November 2009,
pp. 12, http://www.ks.undp.org/repository/docs/Fast_Facts_26_English.pdf.
75
Assembly of EULEX Judges, Guidelines on Monitoring, Mentoring and
Advising (MMA) of EULEX Judges Final Document, Approved on 23 October
2008, Prizren, Kosovo, http://www.eulex-kosovo.eu/justice/docs/MA-guidelines-forEULEX-Judges%20_2_.pdf (accessed 3/10/2009).
76
Council Joint Action 2008/124/CFSP, op. cit., note 19, Article 3.
192
mixed panels (of three or five judges) in the various courts, consisting of both
local and EULEX judges. If necessary, such panels may also consist solely of
EU judges, which also happens in practice (particularly in sensitive cases or
cases where no local judges are found willing to be a member of a panel).77
Upon its deployment in December 2008, EULEX adopted a Programmatic
Approach setting out objectives and activities to perform. EULEX further
designed a system of measuring progress by assessing the impact of its work
on the ground against strategic objectives agreed by the EUs Council of
Ministers, a system managed by its Programme Office, comprising a team of
international and local experts. And during its first six months, the main objective was to measure where the police, judiciary and customs stood vis--vis the
six Mission aims, which was done through an elaborate process of evaluation
and assessment, conducted by hundreds of EULEX monitors dispersed
throughout the three components.78 As far as EULEXs progress in its first
half year of operation was concerned, the July 2009 EULEX Programme
Report sets out the Missions goals in implementing its legal mandate.
Technically speaking, preparation of this report had undergone three phases
assessing performance, identifying strengths and weaknesses, and jointly
developing strategies to address weaknesses through three principles: joint
agreement on the strategies, local ownership in implementing them, and integration of capacity-building efforts of other actors involved. In terms of the
depth and breadth of its scope, this EULEX Programme Report is both an
assessment and a priority-setting policy document: it provides a comprehensive assessment of the existing capacities and performance of Kosovan judiciary, police and customs, which is instrumental in translating EULEXs
Programmatic Approach into operational priorities aimed at achieving the
Missions vision.79
As such, this process reflected EULEXs operational commitment,
namely the aim of carrying out a comprehensive reform that would transform
thoroughly the governance mentality by implanting the project cycle
management logic at all levels. However, it seems overly isolated from other
activities developed by other international actors (including the European
Commission)80 as well as from activities initiated by the Kosovo authorities
77
For an overview of the organization, rules, advices and guidelines adopted by
the Assembly of the EULEX Judges, see http://www.eulex-kosovo.eu/?id=10&j=51.
78
EULEX, EULEX Programme Report, op. cit., note 72.
79
Ibid.
80
See, for instance, the various projects supported by the European Commission
in: Overview of the EC assistance in the Rule of Law Sector in Kosovo,
http://www.delprn.ec.europa.eu/repository/docs/060809EU%20assistance%20in%20t
he%20Judiciary%2027%2007%202009%20ENG.doc (accessed 20/10/2009).
193
themselves. It also indicates only indirectly the extent to which both the whole
system governing the sectors in question and the wider society in Kosovo are
receptive and assimilating to what has been set out on paper. In the Reports
own words, EULEX has the task of translating the basic musical score the
Mission aims and objectives into a full symphony,81 yet there are no clear
indications to what extent the Kosovan audience is actually capable of properly tuning to it. The EULEX mission is indeed perceived as being modelled
in accordance with the typical supranational top-down paradigm: intervening
from above (just as any international presence ever since 1999) in a context
not yet receptive to the structures sought to be developed. Kosovo has indeed
not yet developed itself to the extent that it can properly assimilate and translate the EUs requirements into the local context.
This also points to one of the paradoxes of the EULEX mission: its documents and external communication tools strongly emphasize the principle of
ownership and the fact that Kosovo authorities will be in the drivers seat,
but it is obvious that the EULEX leaders still keep a hand on the steering
wheel and largely design the roadmap that must be followed but that only
partially reflects the actual situation of the country. The priority-setting
process seems to have been rather an outside-in one, since it was EULEXdriven rather than priorities being set and planned locally, agreed by all the
Kosovan relevant stakeholders and presented to the EU. The EULEX
Programme Report does not really indicate that it has made any efforts to
streamline its operational objectives with the overall Kosovo Government
policy planning which also has to take into account other aspects: a budgeting process laid down by the Medium Term Expenditure Framework (MTEF),
alignment with the European Partnership Action Plan (and the initiatives
funded by the various EC funds) and coordination with donors. In a context of
institutional weaknesses and with a society structurally not yet receptive to
structures sought to be entrenched into the local context, providing general and
idealized policy guidelines and recommendations on too large a number of
issues is less successful than actually handing over full authority to local institutions over their field of responsibilities so that they incrementally build their
capacities while performing.
The latter is also relevant when it comes to developing strategies to address
weaknesses: as the Government of Kosovo has, since 2008, adopted several
strategies, local ownership would be built more easily and swiftly strengthened by focusing on implementing what has already been developed at least
on paper. The EULEX Programme Strategy neglects all too often that
measures have been set out in sector-specific national strategies and action
81
EULEX Programme Report, p. 8.
194
plans that are already in force (for instance on IBM, migration, anti-trafficking, against organized crime, anti-terrorism, anti-drugs).82 In terms of capacity-building, if the EU acknowledged and built upon what already existed by
supporting the implementation of policies adopted by the government, it
would promote learning by doing and would reflect accurately the principle
of ownership even if, in the short term, this would inevitably imply some
major failures and mismanaged endeavours. On the other hand, EULEX
clearly has a major dilemma, particularly in the judicial sector, with a reality
on the ground where local capacity and context may be such that actual local
ownership would rather be counterproductive to the effort of building the rule
of law. Local judges were indeed considered as not being able to judge independently due to their links to political leaders and informal economic or
financial networks, and were often also reluctant to be members of panels in
view of their fears for their personal safety. From the start of the operation, the
prevailing perception has been that the EU judges have to take up more executive responsibilities than originally envisaged, as the justice system is still
weak, vulnerable to political interference and inefficient.83
However, EULEX itself might also be perceived as weak, vulnerable to
political interference and inefficient and may indeed be reluctant to fully use
its potential executive powers, even if this is precisely what is expected by part
of the population and what may also be essential for its credibility and legitimacy. Partially mirroring the weakness of the Kosovan judicial system,
EULEX too may have problems in acting forcefully and upholding the rule of
law in an unbiased and politically neutral way, unaffected by other political
considerations (such as the need to maintain stability). The question arises, for
instance, whether EULEX will be prepared to have individuals holding top
positions in, or having close links with, the Kosovo government face justice,
as this may lead to increased tensions and possibly also the return of violence.
This then would raise the other question of whether or not the EU is willing to
take the risk of destabilizing the still-fragile Kosovan society, possibly endangering the work of the international community and the EU in particular in the
region. While the official stance of EULEX is the primacy of the rule of law,
and thus preventing other interests from interfering with the work of the judiciary, it is doubtful whether EULEX itself can manage to put these words into
practice.84
82
See the various strategies and action plans on the website of the Ministry of
Interior Affairs of Kosovo: http://www.mpb-ks.org/?page=2,114 (accessed 3/10/2009).
83
Interviews, Prishtina, April 2009. Commission of the European Communities,
Kosovo under UNSCR 1244/99 2009 Progress Report, op. cit., p. 11. See also EULEX,
EULEX Programme Report, op. cit., pp. 1416, 83109.
84
Interviews, Prishtina, April 2009 and July 2009.
195
The reluctance of EULEX to give a larger role to the Kosovan actors and
consequently to implement the ownership principle is inspired by what we can
call the success paradigm and stability paradigm, which are at the basis of
this ESDP mission. The EU actors are partially driven by and even entrapped
in the stability paradigm. As its enforcement-related policies are not designed
to go much beyond maintaining order and pursuing only gradual improvements (in order not to risk violent reactions), EULEX risks turning itself into
a condition of stability.85 Stability in Kosovo has been understood by the
international community as a situation free from any outbreak of inter-ethnic
violence (as occurred in March 2004) and, equally important, free from any
outbreak of violence or other demonstrations of dissatisfaction against the
international presence and local institutions. The success paradigm means
that, in view of the major failures of the EU in the Balkan wars in the 1990s
and in view of the fact that EULEX is the largest and most expensive civilian
ESDP mission, its failure is simply not an option for the EU. This also explains
why the EU is rather risk-averse, avoids delegating responsibility to local
judges in sensitive cases, and prefers to take its own high standards as the
point of departure rather than the sometimes rather shaky strategies developed
by the Kosovan authorities. This also sheds further light on the operational
commitment of EULEX: it also reflects the commitment to keep operational
control of the most sensitive parts of the rule of law system in Kosovo, that is
the judiciary, and to steer the operational activities of the Kosovan authorities
in very clear directions in the two other components of EULEX Kosovo.
European Commission: Which Reform Driving Commitment?
Of all of the EU actors on the ground, in the long term, the European
Commission Liaison Office (ECLO) is the most important. ECLO is at the forefront of overseeing the development of the overall EU integration framework
that practically takes the form of partnerships, reporting and political and technical dialogue with the Kosovo authorities as well as the provision of financial
and other assistance with the aim to implementing that framework.86 Fully operationalized in 2008 after taking over assistance implementation responsibilities
from the European Agency for Reconstruction (EAR), ECLO is not a complex
organization, as it comprises a political section dealing with the EU integration
policy framework and an operations section overseeing the implementation of
EU assistance instruments. It has around 80 staff, distributed in three sections.87
85
86
Zaum, op. cit., note 48, p. 5.

ECLO, The role of the ECLO, http://www.delprn.ec.europa.eu/?cid=2,110
(accessed 23/08/2009).
87
Ibid.
196
To understand the role of ECLO, it is useful to give a short overview of how

Kosovo has been included in the Stabilization-Association Process (SAP) and
thus also, indirectly, in the EUs enlargement process and the related politics
of conditionality.88 The SAP pursues the following objectives: stabilization
and transition to a market economy, regional cooperation, and the preparation
of EU accession. It assists the countries in building their capacity to adopt and
implement international and European standards (including the Community
acquis). Within the SAP, the EU uses a mixture of instruments: trade concessions, economic and financial assistance via the Community Assistance for
Reconstruction, Development and Stabilization (CARDS) Programme and
contractual relationships (Stabilization-Association Agreements and European
Partnerships).89 Each country moves forward on the basis of the fulfilment of
its commitments within the SAP framework, which is evaluated annually by
the Commission in its Annual Progress Reports. The most far-reaching instrument is the European Partnership and the related European Partnership Action
Plans (EPAP), which identify short- and medium-term priorities which
Kosovo and other Western Balkan countries need to address and which help
them with their reforms and preparations for future membership. The
Stabilization-Association Process Dialogue (SAPD), which replaced the
former Stabilization-Association Process Tracking Mechanism (STM) in early
2010, is the instrument that guides and monitors Kosovos development with
regard to the priorities defined in the European Partnership. The main purpose
of STM/SAPD political and technical meetings is to accompany and monitor
Kosovos reforms and the EU approximation process.90
Activities of ECLO on the ground involve ensuring a political and technical dialogue with the local authorities within the framework of the
STM/SAPD meetings (political and sectoral), where policy orientations and
implementation measures are discussed. Sixteen plenary meetings and a
number of technical ones were held by November 2009.91 It is these meetings
88
See Grabar-Kitarovic, K., The Stabilisation and Association Process: the

EUs Soft Power at its Best, (2007) 12 European Foreign Affairs Review 121;
Blockmans, S., Tough Love: The European Unions Relations with the Western Balkans
(The Hague: TMC Asser Press 2007), pp. 241308; OBrennan, J., The EU and the
Western Balkans: Stabilization and Europeanization through Enlargement (London:
Routledge 2008).
89
Keukeleire, S. and McNaughtan J., The Foreign Policy of the European Union
(Palgrave Macmillan, 2008) p. 266.
90
European Commission Liaison Office in Kosovo, Stabilisation and
Association Process (SAP), http://www.delprn.ec.europa.eu/?cid=2,133 (accessed
20/10/2009).
91
Agency for Coordination of Development and European Integration, Key
Documents, http://www.acdei-ks.org/ (accessed 16/11/2009).
197
and daily communication with the Kosovan authorities that enable ECLO to
perform its activities with regard to monitoring of the implementation of the
overall SAP framework. In this regard, ECLO has so far contributed to the five
annual progress reports as well as a number of peer review missions, where
Member States experts were hired to assess the reform progress in various
sectors and assist thereby through policy recommendations. All three components contribute to the Kosovo Study, which, as endorsed by the Council,
could open the way to some sort of contractual relations between Kosovo and
the EU.92
Another significant function performed by ECLO is that of programming
and implementation of EU financial assistance93 through the Instrument for
Pre-accession Assistance (IPA) and other financial instruments. So far, ECLO
has been in charge of programming and implementing annual IPA programmes
through a centralized implementation system, with local institutions being
consulted during the programming stage, while management of implementation mainly rests with ECLO and the implementing agencies. These agencies
are mainly private consultancies based in one of the EU member states and
which de facto receive the major part of the financial resources the EU devotes
to technical assistance to Kosovo. Since 2008, twinning has also been introduced as a method of implementation, whereby Member States public administration institutions are twinned with local institutions in implementing
projects. To date, assistance under the IPA has been allocated to most sectors
focusing on rule of law, minorities and economic development mainly
through provision of technical assistance to the relevant public sector institutions, with much assistance being focused on institution-building and the
completion of legal and institutional frameworks. However, due to issues
related to Kosovos political status, little assistance has been allocated to
cross-border development.94 As determined by the policy framework itself,
92
For more information see: European Commission, Communication from the
Commission to European Parliament and Council: Kosovo Fulfilling its European
Perspective, op. cit., note 29.
93
What is defined as financial assistance is mainly the cost of providing
mostly technical assistance with the view to institution building and strengthening.
94
When it comes to its involvement in regional cooperation, Kosovo lags
behind by far compared to the other countries of the region as its participation in the
regional cooperation schemes is problematic as a result of Serbias position and the
EUs internal disagreement on the status of Kosovo. This is quite paradoxical and
contradicts the EUs own philosophy, as cross-border interactions have since the early
1950s been at the heart of the approach to overcome conflicts and integrate countries
and people. Cross-border contacts are also hampered by the major problems for
Kosovar citizens and businessmen in obtaining visas for other EU countries. This problem became even sharper after the EUs decision in late 2009 to grant visa free travel
198
assistance has also been rather limited to the sectors of labour, education and
health when compared to the mentioned sectors. Moreover, under the IPA
Regulation, Kosovo is not eligible for other forms of assistance consisting of
regional, rural and human resources development, as they are accessible only
to candidate countries.95 This is perceived as rather problematic in Kosovo
itself, as unemployment, limited human resources and the poor state of the
education sector are seen as major problems which are insufficiently tackled
by the international community and the EU in particular.96
The previous analysis indicates that the reform driving commitment of the
European Commission is mainly based on an enlargement paradigm and
institution-building paradigm. This seems to be to the detriment of other
possible paradigms which might have inspired the reforms pursued by the
Commission, such as the welfare paradigm or employment paradigm that
seem to be much more important for the population in Kosovo and which also
may influence more significantly the local perception of whether international
and European involvement has been a success. Moreover, both the enlargement and the institution-building paradigms have some major limitations and
related paradoxes. A first paradox is obviously that the EU technically applies
its enlargement approach to Kosovo including the very extensive set of
standard operational procedures related to this enlargement approach without Kosovo having the political prospect of even becoming a candidate country as long as EU Member States do not recognize Kosovo as an independent
state.
Secondly, the current EU enlargement policy is mostly a legacy of the EUs
engagement in earlier enlargement rounds with regard to the then candidate
states where at least the context, although structurally different from that of the
EU itself, was more advanced (politically, economically and socially). Kosovo
differs from them due to its short experience as an independent country, underdeveloped public administration, socio-economic conditions and political
culture, as well as the AlbanianSerb ethnic chasm. It is not possible to exam-
to and throughout the Schengen area for citizens of the neighbouring former Yugoslav
Republics of Macedonia, Montenegro and Serbia but not to the citizens of Kosovo. See
Council of the European Union (2009), Visa liberalisation for Western Balkan countries, Brussels, 30 November 2009, 16640/09 (Presse 349); European Security
Initiative (2009), Isolating Kosovo? Kosovo vs Afghanistan 5:22, ESI Discussion
Paper, 19 November 2009, p. 2.
95
Council Regulation (EC) No 1085/2006 of 17 July 2006 establishing an
Instrument for Pre-Accession Assistance (IPA), Official Journal of the European
Union, L210/82-93.
96
Interviews, Prishtina, April 2009; UNDP Kosovo, Fast Facts Early Warning
Report, No. 26, November 2009, pp. 12, http://www.ks.undp.org/repository/
docs/Fast_Facts_26_English.pdf.
199
ine the whole spectrum of these differences in this chapter, but we can look at
one specific difference between Kosovo and the pre-accession Central and
Eastern European Countries. While these countries had public administrations
established for a relatively long period of time, Kosovos public administration was dissolved by Milosevic in the 1990s. When UNMIK started institution-building in the 2000s, it was from scratch and no continuity was sought
or even possible. The problem with the new institutions throughout UNMIKs
reign was not only that they were new and inexperienced, but also powerless.97 During the UN mission rule, their role has been mostly that of an extension of UNMIK itself, with little or no say in the central decision-making
processes. As such, these institutions were in a nascent stage of development.98
The complication arises from the fact that the enlargement policy has traditionally been meant to be a tool in dealing with reforming an already existing
institutional setup, but not to build institutions from scratch. As mentioned
earlier, most of the assistance the EU provides to Kosovo under the IPA is
through technical assistance, whereby usually a private-sector consultancy
from an old Member State provides (often over-specialized and too detailed)
advice and training to the local beneficiary institution which is not able to
absorb properly the (often competing) advice from the various international
actors. Moreover, this is further complicated because of the overwhelming
human resources problems,99 which are a result of widespread corruption and
nepotism, of a lack of qualified and well-trained people, and of the public
administrations inability to compete with the contracts offered by the private
sector and particularly the international organizations (which, with their very
high salaries, in fact disrupt the Kosovan labour market). In this context, it is
quite paradoxical that the European Commission in its Progress Reports
continuously emphasizes the importance of good governance and of strengthening administrative capacity100 but omits to propose structural measures to
increase the income of civil servants and to upgrade the educational sector that
97
United Nations Office of the Spcial Envoy for Kosovo (UNOSEK), A
comprehensive review of the situation in Kosovo, p. 2, http://daccessdds.un.org/doc/
UNDOC/GEN/N05/540/69/PDF/N0554069.pdf?OpenElement (accessed 8/11/2009).
98
Institute for Advanced Studies GAP, 2009 Progress Report Challenges, 6
November 2009, p. 4.
99
Support for Improvement in Governance and Management (SIGMA) (2008),
Kosovo Public Service and the Administrative Framework: Assessment May 2008, p.
2, http://www.sigmaweb.org/dataoecd/48/31/41637624.pdf (accessed 22/12/2009).
100
The 2009 Progress Report, for instance, refers 21 times to the weak administrative capacities of the various branches of the ministries, agencies and public services
in Kosovo and the need to strengthen these capacities (Commission of the European
Communities, Kosovo under UNSCR 1244/99 2009 Progress Report, op. cit.).
200
has to deliver a well-prepared labour force. This is also one of the major limitations of the EUs institution-building paradigm: the EU in Kosovo has put
all bets on the strengthening of the institutional setup, which is expected to
effect, in the long term, development at all levels and in all sectors, but overlooks the fact that a positive outcome is difficult to achieve through supporting measures such as technical advice and assistance if other crucial factors
such as income and education are neglected. In this sense, the vetting process
for judges and prosecutors in Kosovo which has been managed by ECLO
since mid-2009, if successful and if accompanied by higher salaries, may
provide a first indication that the Commission is considering adapting its
approach to institution-building.101
The final paradox with regard to the EUs predominant enlargement paradigm becomes clear when seen in the context of the stability paradigm,
which was discussed in the previous section. The latter makes it difficult for
the EUs enlargement policy to be fully operational and effective. It is indeed
difficult to exert conditionality and put pressure on the authorities to stick to
the agreed reforms in a context where the EU also depends on these actors to
maintain stability. In this sense, it is no surprise that the last Progress Report
also pointed to the rather limited progress in implementing the European
Partnership priorities. Up to late 2008, only a modest 20 per cent of activities
foreseen in the EPAP had in fact been implemented by local institutions.
Moreover, there is no indication of the use of any threat of discontinuing financial assistance under the IPA by the European Commission (at least not
publicly), as this might undermine stability.102
CONCLUSIONS
This final section formulates a number of conclusions on the policy of the EU
towards Kosovo. These are organized around the three main features of this
book, as outlined in the introductory chapter: the complementary political and
legal approaches, the cross-pillarization of the EUs foreign policy, and the
EUs relevance and identity on the international scene.
This chapter provides a political perspective on the EUs policy, as a necessary complement to a legal approach. For instance, a purely legal analysis of
the EULEX mission or the EUs position towards the status of Kosovo is
101
Overview of the EC assistance in the Rule of Law Sector in Kosovo,
http://www.delprn.ec.europa.eu/repository/docs/060809EU%20assistance%20in%20t
he%20Judiciary%2027%2007%202009%20ENG.doc (accessed 20/10/2009).
102
Commission of the EC, Kosovo under UNSCR 1244/99 2009 Progress
Report, op. cit.; interviews, Prishtina, April 2009.
201
indeed not sufficient to acquire a real understanding of the EUs policy

towards this part of the Balkans. In this chapter we also went one step further:
when analysing the EUs policy towards a third country or region, it is also
important to complement the EU perspective or Brussels perspective with
a third country perspective or target-country perspective. A political analysis from a purely EU angle entails the risk of one-sided assessment, which
takes for granted the paradigms which constitute the basis of the EUs policy.
Adopting an outside-in approach, that is looking at the EU policy from the
third country perspective, makes it possible to question the foundations of this
policy, to discover the underlying paradigms, to position them vis--vis other
possible paradigms, and to reveal paradoxes in the EUs policy itself. The
analysis in the previous section pointed to the multi-ethnic paradigm, stability paradigm, institution-building paradigm and success paradigm which
are predominant in the EUs policy. It also suggested that this is to the detriment of other potential paradigms which are essential for Kosovo itself, such
as the welfare paradigm, employment paradigm and particularly EU
membership paradigm. The latter also points to one of the major paradoxes in
the Unions policy: the EU applies the enlargement approach to Kosovo with
all requirements resulting from this comprehensive and very demanding
Brussels agenda despite the fact that it does not offer Kosovo a prospect of
EU membership and despite the fact that this approach is not adapted to the
specific political, administrative, legal and particularly socio-economic
context of Kosovo. The question is, therefore, whether the EU is pursuing the
policies and promoting the reforms that are indeed needed and wanted within
the Kosovan context, characterized by an early stage of both nation- and statebuilding and socio-economic development.
The EUs policy towards Kosovo is a very clear example of the crosspillarization of the EUs external relations and foreign policy. This policy
involves the entire range of the diverse components of the EUs external policies: it has economic, political, legal and security dimensions, covers what
were until the entry into force of the Lisbon Treaty the three pillars of the EU,
and includes both EU (the Commission, Council and Member States) and
other international actors. The analysis in the previous sections also made
clear that the roles of the various institutional actors cannot be demarcated
very clearly. This became apparent in the light of the position of the important
Commission initiatives regarding the judicial sector as an essential complement to the ESDP mission EULEX Kosovo. Adopting an outside-in perspective also leads to another remarkable conclusion which is too often neglected
in the analysis of EU foreign policy: the involvement of all EU actors and
instruments from all pillars within a comprehensive EU policy does not guarantee that the EUs policy is indeed all-encompassing and touches upon all
policy areas that are also considered as relevant from the perspective of the
202
third country. It appears that some major policy dimensions on Kosovos own
agenda are indeed largely neglected by the EU, as is the case with employment
policy but also, for instance, educational policy and the issue of the very low
salaries, even though the latter are quite important from the perspective of
promoting good governance and supporting the much lamented administrative
capacities of the Kosovan authorities.
The Kosovo policy of the EU reflects very well the EUs ambiguous and
also problematic status on the international scene as well as its contested identity as an international actor. The EUs inability to agree on the final status of
Kosovo confirmed and strengthened the perception of the EU as a politically
weak international actor which may not speak with a single voice. However,
what is often overlooked is that, despite the EUs internal division on the
recognition of Kosovo and despite the negative impact of this on the effectiveness of its policy, the EU nonetheless became one of the main actors in
Kosovo. Despite their disagreement on the independence of Kosovo, the EU
actors do have a common view and approach with regard to most dimensions
of the EUs policy in Kosovo. It is symptomatic of the identity of the EU, as
well as its position as an international actor, that it is conducting comprehensive and important technical or bureaucratic policies through the ESDP
mission EULEX Kosovo and through the European Commission Liaison
Office, but that its main political actor on the ground, the EU Special
Representative, is partially paralysed due to the internal political divisions
among the EU Member States.103
This points to the dynamic that EU foreign policy has acquired: the existence of fundamental political disagreements on a major policy issue does not
necessarily make the development and implementation of a comprehensive
operational policy impossible. However, adopting again an outside-in perspective, it is often overlooked that these technical or bureaucratic activities are,
from the perspective of the recipient country, not at all merely technical or
bureaucratic, as they are based on distinct political choices and often less
consciously determined paradigms. These political choices and paradigms de
facto exclude or hamper alternative policy strategies and also favour the solution of some policy problems over others. From the perspective of Kosovo,
this may in the long term undermine both the legitimacy and the chances of
success of the policy of the European Union.
103
On bureaucratic politics, see also Justaert, A. and Keukeleire, S.,
Bureaucratic Governance in ESDP. The EUs Security Sector Reform policies in the
Democratic Republic of Congo, as well as other contributions in: Vanhoonacker, S.,
Dijkstra, H. and Maurer, H. (eds), Special Issue: Understanding the Role of
Bureaucracy in the European Security and Defence Policy (ESDP), (2010) 14
European Integration Online Papers (EIOP).
PART IV
7. The Common Security and Defence

Policy in a multilateral world
Mark Webber*
INTRODUCTION
The Cologne European Council of June 1999 took what many at the time and
since have regarded as a historic step namely, the launch of the European
Security and Defence Policy (ESDP).1 Conceived within the framework of the
existing Common Foreign and Security Policy (CFSP), ESDP marked a stepchange in the ambitiousness of EU external action (it would allow the EU to
play its full role on the international stage) and, by extension, the nature of
the European project (ESDP was hailed as a new step in the construction of
the European Union).2 Ten years on, the official position remained highly
positive. Javier Solana, the EU High Representative for the CFSP, noted in
June 2009 that ESDP was the missing link of international peace and security; numerous missions across four continents had demonstrated the crucial
role [of the EU] in bringing stability to different parts of the world.3 ESDP,
he suggested a little later, has brought unique added value, a joint civilian
military approach meaning that the EU remains the only organisation that
can call on a full panoply of instruments and resources [to] complement the
traditional foreign policy tools of its member states.4
* The author would like to thank Lorenzo Cladi for research assistance provided
in the preparation of this chapter.
1
The Lisbon Treaty uses the term Common Security and Defence Policy
(CSDP). This chapter, however, will refer to ESDP, the term in common usage in the
ten-year period the chapter is concerned with.
2
Declaration of the European Council on Strengthening the Common
European Policy on Security and Defence (Cologne, 34 June 1999), reprinted in
Rutten, M. (comp.),From St-Malo to Nice European Defence: Core Documents
(2001) 47 Chaillot Paper (Paris: Institute for Security Studies, Western European
Union), pp. 412.
3
J. Solana, ESDP@10: What Lessons for the Future?, speech delivered in
Brussels, 28 July 2009, at: www.consilium.europa.eu/uedocs/cms_data/docs/
pressdata/EN/discours/109453.pdf (accessed 10/1/2010).
4
Solana, J., EU Makes Its Mark on the World Stage, The Guardian
205
206
This, the official position, has not passed without qualification EU documentation has been relatively frank in its consideration of issues surrounding
implementation, capabilities and the effectiveness of decision-making. These
are, however, essentially caveats, the identification of the means to enhance an
already successful project.5 More critical judgements have been apparent
among those bodies formally charged with scrutinising ESDPs development.
The European Parliaments Committee on Foreign Affairs, for one, has made
it its business to highlight ESDPs strategic and operational deficiencies.
While generally upbeat in its assessment of ESDPs potential, it remains,
according to a recent report, unconvinced of the policys strategic direction.6
Expert opinion, meanwhile, has been divided. Anand Menon in a ten-year
retrospective noted that the development of the ESDP has been significant
and remarkably rapid. It has, he continued, performed far more creditably
than many predicted and than anyone had a right to expect.7 In stark contrast,
Nick Witney, the first Chief Executive of the European Defence Agency
(EDA), has written that [t]en years after the launch of the EUs defence effort
[] the European Security and Defence Policy badly needs a shot in the arm.
Procrastination, weak coordination, and persistent absenteeism [] have
hobbled the Unions ability to [] make a significant contribution to maintaining international peace.8
Given the diversity of opinion, how then are we to judge ESDP? While the
initiative is still a work in progress, a decades worth of activity has provided
a body of evidence sufficient to make a considered evaluation of its performance. Ten years, furthermore, is long enough to take into account not simply
what the EU has promised to do, but to pay detailed attention to what it has
actually done. In this connection, commentators as well as the EU itself paid
greatest attention in the early years of ESDP to its institutional development
and capabilities. This was understandable because without these ESDP lacked
the platform from which operations could take flight. With an extensive operational record, it no longer makes sense, however, to concentrate simply on the
prerequisites of action; the operations themselves ought also to be a focus of
attention. Broadening the analysis out still further, operations (and, by exten(Comment is Free), 11 October 2009 at: http://www.guardian.co.uk/commentisfree/
2009/oct/11/eu-esdp-10-years (accessed 10/1/2010).
5
This is, for example, the spirit in which the biannual Presidency Reports on
ESDP are written.
6
See Report on the European Security Strategy and ESDP, document A60032/2009, 28 January 2009.
7
Menon, A., Empowering Paradise? The ESDP at Ten, (2009) 85
International Affairs 244, 246.
8
Witney, N., Re-energising Europes Security and Defence Policy, (2008)
Policy Paper (European Council on Foreign Relations), p.1.
207
sion, ESDP writ large) only make sense when seen in strategic and political
context. What is their rationale? From where do they derive their legitimacy?
And how far do they further the EUs aim of strengthening partnerships and
multilateral order?
Proceeding from these observations, this chapter discusses ESDP in six
thematic sections concerned respectively with reason and rationale, legitimacy, institutions, operations, multilateralism, and capabilities. A concluding
section contemplates ESDPs future near-term development in light both of
the record to date and of pressures currently bearing down upon the EU. The
argument of the chapter is that the record of ESDP is mixed. A broadly positive view can be reached in regard to what one might label the acquis ESDP
(its political and legal attributes and institutional architecture) but serious
questions hang over the effectiveness of operations and the generation of capabilities. A gap, in other words, exists between ESDPs potential and its performance.
REASON AND RATIONALE

A distinction is to be made between, on the one hand, the reasons for ESDP
and, on the other, its underlying rationale: reasons provide context, rationale is
the public justification of what ESDP is for. This distinction is sometimes
blurred why ESDP came into existence has obviously influenced the nature
of the tasks undertaken by that policy. Yet it is worth keeping these two meanings in mind for each has a somewhat different bearing in terms of how one
assesses the initiative.
If one examines the reasons for ESDP first, it is hard not to agree with that
policys underlying logic. This requires one to reject some of its more controversial connotations. As Jolyon Howorth has convincingly argued, ESDP was
set up neither to balance the US nor to undermine NATO. Neither was it the
vanity project of UK Prime Minister Tony Blair or a conspiracy aimed at the
creation of a European army. ESDP, rather, was occasioned by the convergence of a number of powerful political and historical circumstances.9 The
external context or setting of the EU is crucial here. The end of the Cold War,
first and foremost, challenged pretty well all important international organisations. On the continent of Europe this resulted in a reorientation of NATOs
mission, the rebirth of the Conference on Security and Cooperation in Europe
(as the Organisation for Security and Cooperation in Europe (OSCE)) and the
9
Howorth, J., Security and Defence Policy in the European Union
(Basingstoke: Palgrave Macmillan, 2007), pp. 3360.
208
signing of the Treaty on European Union (TEU) at Maastricht. The latter had
a gestation which predated this historic juncture (the Single European Act of
1987 being its immediate precursor) but the Treatys framing and, more specifically, its inclusion of provisions for CFSP were propelled forward precisely
by these revolutionary developments.10 The challenge of transformation
became that much more painful in the years that followed. For the UN, NATO
and the fledgling EU, the collapse of Yugoslavia and the attendant wars in
Bosnia and then Kosovo proved a baptism of fire. No organisation emerged
with much credit from the Bosnian imbroglio and while NATO salvaged some
respect during Operation Allied Force in Kosovo, this mission served only to
highlight the inadequacy of European efforts in responding to a large-scale
crisis so close to home. That it was NATO and by extension the US which
saved the day was little consolation. The Clinton administrations prevarications in the Balkans throughout the 1990s had demonstrated the unreliability
of American power, while efforts at strengthening the European pillar within
the Alliance (the much touted European Security and Defence Identity or
ESDI) had lacked the political will (and, indeed, the proper institutional
setting) necessary to galvanise the creation of a credible European crisis
management capability.
All these factors clearly demonstrated that there was an objective need for
an enhancement of a European capacity for crisis management precisely the
type of initiative which the French and British undertook at St Malo in 1998
and which materialised the following year as ESDP. That it was the EU specifically that served as the receptacle of the initiative reflected two further influences. The first was a normative pressure. The 1990s was a decade
characterised by humanitarian catastrophe. While the international response
was patchy (witness the hesitations over Bosnia and the catastrophic failure
over Rwanda), there was a growing appreciation, among the leading Western
powers at least, that a right of humanitarian intervention had emerged in both
state practice and customary international law.11 This proved a propitious
development for the EU. Admittedly, a number of its Member States (notably
the Dutch, the French, the Germans and the British) had demonstrated an
ambiguous commitment to humanitarian objectives in their individual foreign
policies (and in Balkan affairs specifically), but as for the EU itself, its identity as an international actor was premised on quite distinct moral claims
10
Judt, T., Postwar: A History of Europe Since 1945 (London: William
Heinemann, 2005), p. 713.
11
Schoenbaum, T.J., International Relations the Path not Taken: Using
International Law to Promote World Peace and Security (Cambridge: Cambridge
University Press, 2006), pp. 1223.
209
buttressed, in turn, by a commitment to multilateralism and legality in the

conduct of international affairs.12
The second influence was the inherent logic of the EUs own historic development. The well-known neo-functionalist view suggests that a deepening of
economic and social integration encourages integrationist spillover into the
domain of foreign policy cooperation, a process illustrated by CFSP and prefigured by European Political Cooperation in the 1970s and 1980s. Yet there
was no inevitability that this would, in turn, lead to the emergence of a policy
of the ESDP type involving the coordinated use of military, police and civilian instruments.13 That it did was less to do with the internal dynamic of
European integration and more with how this process affected the EUs external standing. With the development of the European Union and all that that
entailed (the single market, a single currency, and the pooling of a range of
other economic, social and political resources), it was clear the EU had
achieved, potentially, a real global weight. Even those, such as the British,
traditionally sceptical of a distinctive European role came to appreciate that
this potential was a resource that offered huge benefits in a troubled and uncertain world for burden sharing among European states and as a complement
to NATO activities. But to harness it required taking the project of European
integration in a new direction, towards a specifically EU crisis-management
capacity.
Much has changed in the ten years or more since ESDP was launched. The
wars in Iraq and Afghanistan and the securitisation of terrorism following 9/11
have, however, only reinforced the trends above: the US is now even less
concerned with European security and so the space (and the necessity) for
European autonomy has expanded. The EU itself has also altered because of
both enlargement and Treaty revision (culminating in the adoption of the
Lisbon Treaty), and this too has made the logic of ESDP that much more
compelling. Given this context, the specific rationale for ESDP has been
notably consistent. When launched, its core purpose was clear: to permit the
EU the ability to take decisions on the full range of conflict prevention and
crisis management tasks through the development of a capacity for
autonomous action, backed up by credible military forces. This capacity
would not be detrimental to NATO, would be in accordance with the principles of the UN Charter and would entail the EU playing its full role on the
international stage.14
12
13
Howorth, n9 above, pp. 545.

Andreatta, F., Theory and the European Unions International Relations, in
Hill, C. and Smith, M. (eds), International Relations and the European Union (Oxford:
Oxford University Press, 2005), pp. 223.
14
See n2 above.
210
This clarity of purpose has been muddied somewhat by allusions to

defence in relation to ESDP. The Treaty on European Union the Maastricht
Treaty and the successors of Amsterdam (Article J.7) and Nice (Article 17)
all committed the EU to the possibility of a common defence;15 the Lisbon
Treaty repeats this while also containing clauses on mutual solidarity and
mutual assistance (both of which can be construed as having defence implications).16 However, the status of this ambition remains moot so long as a majority of EU states reside simultaneously in NATO. At present, therefore, the D
of ESDP cannot be taken as suggesting the EU has the status of a military
alliance or that it is geared to defending Europe. This conceivably may occur
at some later date,17 but thus far the defence component of ESDP is more
accurately construed as part of [the EUs] approach to confronting insecurity
and managing crises18 and thus of projecting stabilisation forces outside
and sometimes far outside its borders.19
In fact, EU statements have kept to this core rationale. While the broad
sweep of EU external action sometimes means the precise status of ESDP is
obscured (it is telling, for instance, that the European Security Strategy of
2003 does not refer to ESDP by name), that policy has nonetheless steered
towards a reasonably well-defined set of objectives derived from the so-called
Petersberg Tasks. Adopted by the Western European Union (WEU) in 1992
and integrated into the Treaty of Amsterdam, these went on to inform the EUs
Helsinki Headline Goal of 1999 (that is the Force Catalogue or pool of capabilities upon which ESDP would draw). Already ambitious (humanitarian and
rescue tasks, peacekeeping [] and tasks of combat forces in crisis management, including peacemaking), these were subsequently extended by the
European Council of June 2004 to embrace joint disarmament operations []
military advice and assistance tasks, conflict prevention [and] post-conflict
stabilization. The intended scope of operations has followed from this (as
recently outlined in the Headline Goal 2010 and the Civilian Headline Goal
2010), as has consideration of necessary capabilities, both military and civil-
15
The relevant extracts of the Treaties of Maastricht and Amsterdam are both in
Hill, C. and Smith, K.E. (eds), European Foreign Policy: Key Documents (London and
New York: Routledge, 2000), pp. 155, 173. For the Treaty of Nice, see [2001] OJ C
80/01.
16
See Article 42(7) TEU and Title VII TFEU.
17
Salmon, T., The European Union: Just an Alliance or a Military Alliance?,
(2006) 29 Journal of Strategic Studies 813.
18
Speech of Javier Solana (High Representative of the CFSP), Bonn, 11
October 2005 in EU Security and Defence: Core Documents 2005, Chaillot Paper,
No. 87, March 2006, p. 286.
19
DArgenson, P-H., The Future of European Defence Policy, (2009) 51
Survival 147.
211
ian, to support them (discussed below). The Treaty status of the extended
Petersberg Tasks, meanwhile, has followed from their inclusion in Article 43
of the Lisbon Treaty.20 The Treaty of Nice had undertaken a similar job but
Lisbon is much more robust. As the House of Commons Select Committee on
Defence has reported, all existing aspects of ESDP have for the first time been
brought within the framework of a single treaty.21
LEGITIMACY
The European Convention, the aborted Constitutional Treaty and, more
recently, the Treaty of Lisbon have all been suffused by debates as to how to
strengthen the EUs legitimacy. The assumption behind these debates is that
the democratic values of the Union, its working methods and its institutions
are (or, at least, ought to be) legitimate by design. Yet, owing to its peculiar
character, these considerations need not apply strictu sensu to the domain of
EU security policies. Security is an area, at least in domestic politics, usually
shielded from intrusive oversight. This practice has been replicated to some
degree at the EU level and so ESDP and CFSP (in pre-Lisbon Treaty terms)
have fallen within the second pillar thereby giving priority to the Member
States in policy formation while at the same time marginalising input and
oversight by the European Parliament and the Commission.22
This important qualification aside, there are important ways in which ESDP
does enjoy a veneer of legitimacy, one which has moreover, developed positively over time. In this connection, a useful distinction can be made between
the legitimacy which falls to the EU as an actor pursuing ESDP and that which
attaches to the particular action of ESDP itself (the deployment of missions in
other words).23 Taking the first of these, at its most elevated level, legitimacy
attaches to an actor because it has a widely recognised right to govern.24 Put
another way, an institution will enjoy legitimacy where its member states
20
[2009] OJ C115/39. For other references in this paragraph see Quille, G., The
Lisbon Treaty and Its Implications for CFSP/ESDP (European Parliament,
Directorate-General External Policies, Policy Department, February 2008).
21
The Future of NATO and European Defence, Ninth Report of Session
2008/08 (London: The Stationery Office, 2008), p. 86.
22
Bono, G., Challenges of Democratic Oversight of EU Security Policies,
(2006) 15 European Security 435.
23
This actor/action distinction is derived from Coleman, K. P., International
Organisations and Peace Enforcement: The Politics of International Legitimacy
(Cambridge: Cambridge University Press, 2007), pp. 2024.
24
Hurd, I., Legitimacy and Authority in International Politics, (1999) 53
International Organization 381.
212
recognise the right of that institution to act on their behalf.25 In the case of the
EU, this right may, for instance, derive from its encapsulation of the common
norms and values which pertain to its individual members. The EU has, of
course, been hailed as a normative power and certainly in regard to its selfconstruction or official discourse this is an appellation which has some
merit.26 The right to govern, alternatively, may reflect a more functional
quality based on the effectiveness of governance and the generation of policy
outputs. Here too, the EU has a reasonable claim to make. In the sphere of
external policy and ESDP specifically, this rests on the ability, unique among
regional international organisations, to combine instruments of civilian and
military crisis-management. The upshot, potentially at least, is the delivery of
global public goods, sometimes in concert with other international bodies
(NATO and the UN) but on occasion involving the EU acting alone.27 More
formally, the right is expressed in law. The ability of the EU to act within the
security sphere has a sound legal footing given the inclusion of provisions on
ESDP and CFSP in the Lisbon Treaty (presaged in turn by provisions
contained in the Treaties of Maastricht, Amsterdam and Nice). ESDP here has
an inter-governmental character in the sense, first, that unanimity in decisionmaking is the presumed norm (notwithstanding a provision for constructive
abstention) in launching missions; second, that capabilities for ESDP missions
are provided by the Member States; and third, that this area is exempt from
legislative acts and oversight by the European Court of Justice. Further, the
Treaty basis is significant in at least three respects in ascribing actorness to the
EU. First, the competence of the Union is clearly specified (as alluded to
above in reference to the extended Petersberg Tasks). Second, and notwithstanding their derivation from the Member States, capabilities for ESDP are
regarded as expressly providing the Union with an operational capacity.28
And third, since the Treaty of Nice, recognition has been given to those EU
institutions tasked with carrying out ESDP, namely (as articulated in the
Lisbon Treaty), the European Council, the Council, the High Representative,
the European Defence Agency, and the Political and Security Committee.
25
Lord, C., Accountable and Legitimate? The EUs International Role, in Hill
and Smith (eds), n13 above at 11314.
26
Diez, T. and Pace, M., Normative Power Europe and Conflict
Transformation (paper presented to the tenth biennial conference of the European
Union Studies Association, Montreal, May 2007).
27
Howorth, J., Implementing a Grand Strategy, in de Vasconcelos, A. (ed.),
What Ambitions for European Defence in 2020? (Paris: European Union Institute for
Security Studies, 2009), pp. 378.
28
Article 42(1) TEU.
213
As well as being a quality derived from its Member States, the legitimacy
of the EU as actor in ESDP also stems from the support it enjoys among other
relevant audiences. The EUs external audience is, of course, vast, but to
simplify, it can be argued that among major global and regional actors (such
as the US, China, India, Brazil, ASEAN or the African Union) the EU is
viewed favourably as a nascent military and civilian power.29 As for its internal audience, one significant measure here is public opinion. On the one hand,
this has been seen as ill-disposed towards ESDP: European publics are far
from uniform in their preferences but, overall, tend to oppose ESDP deployment far beyond EU borders and are not well disposed to bearing increased
costs, be these financial or human, for missions (in these respects, the Danes,
British, Irish and Swedes are notable sceptics).30 Yet on the other hand, a
permissive consensus does exist in favour of the ESDP project: 2008
Eurobarometer data indicates that across the EU 27, two-thirds of respondents
regarded defence and foreign affairs as an area in which decisions ought to be
made jointly by governments within the EU. This, moreover, was the fourth
most popular area in this respect, well ahead of, for example, the EUs traditional concern with economic integration.31
Assuming, then, that legitimacy attaches to the EU as actor in the ESDP
field, it might be logical to infer that legitimacy ipso facto also pertains to
particular ESDP actions. Here, however, additional criteria apply. In this
connection, a case can be made that legitimacy follows from the formal act by
which an operation is initiated and subsequently extended. All ESDP operations have a legal basis in a Joint Action of the Council (and this is also a
measure of a political consensus among EU Member States). This, in turn, is
reinforced by two other features. First, some ESDP missions have been
launched following an express invitation by the government of the host state.
Second, ESDP connects to some degree with international law. The fit here,
however, is not perfect. Whereas some Member States for instance Finland,
France, Ireland and Sweden set great store by Security Council authorisation, the British position (mindful of possible Russian and Chinese vetoes) is
that the EU need not regard such approval as a sine qua non of action.32 The
EU has consequently struck an ambivalent position. While committed to
29
30
Howorth, n27 above, p. 38.

Brummer, K., Superficial not Substantial: The Ambiguity of Public Support
for Europes Security and Defence Policy, (2007) 16 European Security 183.
31
See Eurobarometer 70 Public Opinion in the European Union (December
2008), p. 50. At: http://ec.europa.eu/public_opinion/archives/eb/eb70/eb70_first_
en.pdf (accessed 10/1/2010).
32
Born, H., Anghel, S., Dowling, A., Fuior, T., Parliamentary Oversight of
ESDP Missions Policy Paper, No. 28 (Geneva Centre for Democratic Control of
Armed Forces: 2008), pp. 278.
214
strengthening international security in accordance with the principles of the

United Nations Charter,33 it does not acknowledge any special status for the
Security Council in mandating ESDP action (see also below).
Action legitimacy may also be seen as following from susceptibility to
mechanisms of accountability and specifically parliamentary accountability.
Taking national parliaments first, here considerable variation is in evidence.
The most significant powers are enjoyed in Finland, Luxembourg and
Sweden, where prior parliamentary approval is sought before the respective
governments sign up to a Joint Action on ESDP. More widespread is the
requirement for prior authorisation before troops are deployed. Taking these
different forms of authorisation together, one recent survey of 25 Member
State legislatures found that 14 were currently involved in prior authorisation
before the actual launch of military ESDP missions, while ten were involved
in prior authorisation of civilian missions.34 The picture is, however, patchy
and this is also the case when it comes to the European Parliament (EP). This
body has no power to authorise ESDP missions (this right, as noted above,
being reserved to the Council), and while it can issue non-binding resolutions
prior to a mission being launched, its record in doing so is poor. As of early
2008, the EP had passed only three ex ante resolutions pertaining to military
operations and none relating to civilian missions. Ex post oversight, that is a
decision-making role in the implementation and termination of an ESDP
mission, is similarly constrained. As of mid 2009, the EP had not adopted a
single ex post resolution on ESDP.35 The European Parliament also enjoys
powers of scrutiny through the work of the Sub-Committee for Security and
Defence.36 The Treaty of Lisbon under Article 36 augments these powers by
requiring that the newly created High Representative for Foreign Affairs and
Security Policy regularly consult the Parliament and [take] into consideration its views when formulating policy. These provisions at present remain
untested. As for financial powers, finally, the EP has some say in setting
budgets for civilian missions but lacks any such abilities in respect of military
operations.37
33
34
35
Article 42(1) TEU.

Born et al., n32 above, p. 32.
Comelli, M. and Zanon, F., Democratic Legitimacy and Accountability of
ESDP Operations, Paper presented at the 3rd Expert Seminar on The EU in Conflict
Prevention and CivilMilitary Crisis Management the Quest for Effectiveness and
Legitimacy, Turin, 2526 June 2009, pp. 78.
36
Born et al., n32 above, pp. 713.
37
Comelli and Zanon, n35 above, pp. 89.
215
To summarise, then, the EU can claim both actor and action legitimacy in
respect of ESDP even though the specifically democratic character (via parliamentary involvement) of the policy remains underdeveloped. A democratic
deficit pertains to some degree in ESDP, but legitimacy as indicated by the
criteria above is not a function of democratic procedure and method only.
INSTITUTIONS
The ability of the EU to carry forward ESDP is, in part, a function of its military and civilian capabilities (as we shall see below). In addition to these
deployable resources, other, institutional, assets are also crucial. ESDP is not
an alliance of the traditional type dealing with threats but a multifaceted structure that responds to security risks.38 Its institutional evolution reflects this
broad purpose. Further, and unlike NATO, ESDP is not a stand-alone structure; rather, it is embedded within the wider set of EU institutions and this
context too has had a decisive influence.
These twin contexts were clearly significant at ESDPs outset. The initial
impulse of development gave priority to military requirements stemming from
observation of the Balkan crises of the 1990s, while the institutional setting
was strongly conditioned by the experience of CFSP. ESDP carried forward
many of the working methods of its parent policy, the politically most significant being the location of ESDP within the second pillar. From the outset, it
was thus subject to inter-governmental decision making premised on unanimity and political oversight of the Member States acting through the General
Affairs Council (Foreign Ministers), COREPER (Permanent Representatives)
and ultimately the European Council (along with the rotating Presidency). The
principal new bodies of ESDP created in its first 18 months39 comprised the
Political Security Committee (PSC) (of ambassadors), the European Union
Military Committee (EUMC) (of chiefs of defence staff), and the EU Military
Staff (EUMS). All reflected ESDPs strict inter-governmentalism and its
nascent military requirements. The prominent role of the HR-CFSP as advocate of ESDP, meanwhile, stemmed precisely from his attachment to CFSP
and his accountability to the Council.
38
This distinction is derived from Wallander, C. A. and Keohane, R. O., Risk,
Threat and Security Institutions, in Haftendorn, H. et al (eds), Imperfect Unions:
Security Institutions over Time and Space (Oxford: Oxford University Press, 1999), pp.
246.
39
That is, between the Cologne European Council of June 1999 and the Nice
European Council in December 2000.
216
The history of ESDP institutions thereafter has been marked by three broad
characteristics. The first has been the development of structures to complement the growing number of ESDP civilian missions. CIVCOM, the
Committee for Civilian Aspects of Crisis Management (attached to the PSC)
had been created in May 2000 and this was supplemented in 2006 with the
establishment of a CivilMilitary Cell within the EUMS and, a year later, by
the creation of a Civilian Planning and Conduct Capability located in the
Council Secretariat. The main consequence of the civilianisation of ESDP,
however, has been in expanding the role of the Commission through its representation on the permanent ESDP bodies noted above, liaison with the Council
Secretariat, and the development of its own organs (most notably, Directorate
A of DG-RELEX) dedicated to CFSP/ESDP matters. The Commission,
furthermore, is responsible for overseeing CFSP expenditure on civilian ESDP
missions. The second characteristic concerns proliferation. The institutions
above constitute the main components of ESDPs wiring diagram but, as
already implied, these have been the basis for further growth. The EUMS
alone, for instance, has given rise to a wealth of bodies dedicated to planning
and overseeing operations as well as maintaining contact with NATO (and
SHAPE specifically). Similarly, the role of the HR-CFSP has been enhanced
by a Policy Unit and a Joint Situation Centre. The third, and all-embracing
characteristic has been that of adaptation. Institutionalisation has, in many
ways, been a response to operational requirements but equally to political
imperatives derived from the needs (in pre-Lisbon Treaty parlance) of crosspillar cooperation (hence the association of the Commission) and of striking a
balance between the competing demands of national prerogatives (hence the
retention of inter-governmental methods) and the creation of a specific EU
resource for crisis management.
The upshot of these developments has been the formation of an extremely
complex network of institutions.40 Institutionalisation of this sort, often
maligned in the EU as a substitute for policy, has however had some beneficial effects, facilitating negotiation and compromise among the bewildering
variety of actors engaged in EU policy-making. ESDP decision-making is thus
typical of much else in the EU: time-consuming and opaque but nonetheless
delivering movement on a policy area without privileging the preferences of a
single Member State or institutional actor.41 Institutional complexity does,
however, give rise to inevitable blockages in policy implementation. The most
egregious instances have been where separate lines of institutional engage40
The fullest exposition can be found in Grevi, G., ESDP Institutions in Grevi,
G., Helly, D. and Keohane, D. (eds), European Security and Defence Policy: The First
Ten Years (19992009) (Paris: EU Institute of Security Studies, 2009), pp. 1967.
41
Howorth, n9 above, pp. 9091.
217
ment have been poorly coordinated. In the case of EUSEC RD Congo, for
example, a single coordinated mission for security sector reform was not
possible owing, in large part, to the jealously guarded responsibility of the
Commission for overseeing a quite distinct Community programme of judicial
reform.42 In Afghanistan, similar problems have arisen in that a lack of coordination between the EU Special Representative (answerable to the HRCFSP), the EUPOL police reform mission and the Commissions development
programmes (separate from ESDP) has undermined the EUs overall effort in
the country.43
CFSP/ESDP provisions in the Lisbon Treaty do make some attempt to
address problems of this sort. In many respects, the Treaty confirms existing
practices on CFSP/ESDP (thus modifications to decision-making are slight)44
or affirms the standing of existing institutions (see Articles 38 on the PSC and
42 on the European Defence Agency). Its major institutional innovation is that
of the position of the High Representative of the Union for Foreign Affairs and
Security Policy assisted by a European External Action Service. Initiated in
December 2009 and occupied by Baroness Ashton, this office is intended to be
triple hatted:45 (i) assuming the functions of the office of HR-CFSP once
occupied by Javier Solana, that is ensuring implementation of decisions
adopted by the European Council and the Council;46 (ii) as representative of
the Union on CFSP matters and as chair of the Foreign Affairs Council (thus
assuming the responsibilities of the rotating presidency in CFSP/ESDP
matters); and (iii) acting as a Vice-President of the Commission to ensure
consistency of the Unions external action.47
On paper, then, this new position holds the potential to galvanise a more
effective coordination between the variety of institutions engaged in ESDP, the
bridge to the Commission being particularly noteworthy. Of this writing it is
too early to judge the impact of this change. However, some scepticism is in
order. The new High Representative will continue to be placed in a complex
institutional environment and will have to work alongside (and perhaps
compete with) the new position of President of the European Council, the
President of the Commission and those Commissioners responsible for areas
(development, humanitarian assistance) that might intrude upon ESDP. Rather
42
43
44
Clment, C., EUSEC RD Congo, in Grevi et al. (eds), n40 above, p. 249.
Peral, L., EUPOL Afghanistan, in Grevi et al. (eds), n40 above, p. 335.
See the analysis in House of Lords, European Union Committee, The Treaty
of Lisbon: An Impact Assessment, Vol. I: Report (HL Paper 62-I, March 2008), pp.
1825.
45
House of Lords, European Union Committee, The Treaty of Lisbon, p. 189.
46
Article 27 TEU.
47
Articles 18 and 42 TEU.
218
than cultivating the network of international contacts that was the mark of
Solanas tenure, the incumbent may end up a manager of the EUs internal
decision-making process. This, if effectively carried out, may still unblock at
source potential problems of ESDP policy-making and implementation but
equally, when conjoined with an exhausting workload, it could result in a job
paralysed by bureaucracy and unceasing political squabbles.48
OPERATIONS
ESDP was born in 1999; in January 2003, the EU police mission in Bosnia was
launched, the first ever ESDP operation, and in May of that year ESDP was
declared as possessing operational capability across the full range of
Petersberg Tasks.49 The EU has so far conducted 24 separate ESDP operations, thirteen of which were ongoing as of this writing (see Table 7.1). In
terms of the number of operations, the EUs record is bettered only by the UN,
and in terms of personnel, only by the UN and NATO. By comparison with
other regional bodies, the EU is (in quantitative terms) a more significant
provider of peace operations than the Commonwealth of Independent States
(CIS), the African Union, the OSCE and the Organization of American States
(OAS) (see Table 7.2.)
Two important operational trends stick out when surveying ESDP.50 First,
the EU has widened its operational area of deployment. This is not yet global
in scope (no operations have been mounted in the western hemisphere), but it
has taken the EU well beyond its borders. An initial concentration on the
Western Balkans (Bosnia-Herzegovina and Macedonia) has been supplemented
by missions elsewhere in Europe (Georgia, Moldova/Ukraine), in Central Asia
(Afghanistan), the Middle East (Iraq and the Palestinian territories), East Asia
(the Aceh province of Indonesia) and Africa (including offshore in the Indian
Ocean). Second, ESDP has been characterised by an expansion of its operational spectrum. As initially formulated, ESDP was geared principally to a
military role in crisis management. Perhaps significantly, however, its first
48
Angelet, B. and Vrailas, I.,European Defence in the Wake of the Lisbon

Treaty, Egmont Paper, No. 21 (Brussels, Royal Institute for International Relations,
2008), pp. 235.
49
Declaration on EU Military Capabilities, EU Capability Conference
(Brussels, 19 May 2003) at: http://www.foreignpolicy.org.tr/documents/
eucc_190503_p.htm (accessed 10/1/2010).
50
These are derived from Pirozzi, N. and Sandawi, S., Five Years of ESDP in
Action: Operations, Trends, Shortfalls, (2008) 39 European Security Review pp.
1415.
Table 7.1
219
ESDP missions ongoing October 2009
Operation
Type of mission
Duration
EUPM
Bosnia
EUFOR Althea
Bosnia
EUJUST
LEX Iraq
EU BAM
Moldova/
Ukraine
EUPOL
COPPS
Palestinian
Territories
EU BAM
Rafah,
Palestinian
Territories
EUPOL
Afghanistan
EUPOL
RD Congo
EUSEC
RD Congo
EU SSR
Guinea-Bissau
EULEX
Kosovo
(Civilian) Advice on policing,

law and order
(Military) Peacekeeping
(Civilian) Training senior police,
judicial and prison officials
(Civilian) Training Ukrainian
and Moldovan border officials
Since January
2003
Since December
2004
Since June
2005
Since December
2005
(Civilian) Assist with reform

of Palestinian police force
Since January
2006
60
(Civilian) Border-crossing
monitoring mission
Launched
January 2006
but suspended
since mid 2007
Since May 2007
30
426
Since July 2007

Since July 2007
74
44
Since February
2008
Since June 2008
32
EUMM
Georgia
EU NAVFOR
Atalanta
East African
coast
(Civilian) Assist formation of

an Afghan police force
(Civilian) Advice on police,
justice and security sector reform
(Mixed military civilian) Advice
on security sector reform.
(Mixed military/civilian)
Advice on security sector reform
(Civilian) Assisting Kosovan
police, courts and customs
services
(Civilian) Ceasefire monitoring
(Military) Anti-piracy naval
mission
Size
Since September
2008
Since December
2008
363
2,104
45
230
2,598
366
1,800
Total = 8,172
Sources: ESDP and EU Missions Updates October 2009, European Security Review, No. 46,
October 2009; Overview of the Missions and Operations of the European Union, October 2009,
at: http://www.consilium.europa.eu/showPage.aspx?id=268&lang= (accessed 10/1/2010).
220
Table 7.2
Multilateral peace operations (December 2008)
United Nations
African Union
CIS
OSCE
EU
NATO
OAS
Ad hoc coalitions
No. of missions
No. of personnel
23
2
3
9
12
3
1
6
98,614
3,560
5,349
461
7,932
65,978
40
5,148
Source: K.Soder, Multilateral Peace Operations in 2008, SIPRI Yearbook 2009: Armaments,
Disarmament and International Security (Oxford etc.: SIPRI, 2009), summary at:
http://www.sipri.org/yearbook/2009/03/03A (accessed 10/1/2010).
operation was a civilian one and since 2003 military missions have made up
only a minority of deployments. While many ESDP missions, in fact, exhibit
both military and civilian characteristics, what is significant is the increasing
emphasis on the latter. This civilian thrust, moreover, has exhibited notable
variation (see Table 7.1) as missions have provided advice and assistance on
policing, rule-of-law provision, security-sector reform and different types of
monitoring. Taken as a whole, ESDPs operational spectrum has embraced
three broad functional tasks: promoting the stabilisation of areas of crisis (the
Western Balkans, Georgia, the Aceh province of Indonesia and the Democratic
Republic of Congo), enhancing governance and state capacity in nascent and
failing states (Bosnia, Iraq, Afghanistan, the Democratic Republic of Congo
and the Palestinian Authority) and, in service of these first two tasks, complementing the efforts of other international organisations, be this the UN, NATO,
the OSCE or the African Union (see below).
ESDPs operational trends can certainly be taken positively. The ability to
deploy at distance has provided some substance to the notion of the EU as a
global actor and puts flesh on the claim of the European Security Strategy that
the EU should be ready to share in the responsibility for global security.51
That the EU has done this in concert with other major organisations suggests
that it has acquired a degree of credibility which CFSP alone had failed to
51
European Security Strategy: A Secure Europe in a Better World (European
Council, Brussels, 12 December 2003), reprinted in Missiroli, A., (comp.), From
Copenhagen to Brussels, European Defence: Core Documents (2003) 67 Chaillot
Paper p. 325.
221
provide. The sheer number of operations, meanwhile, indicates an activism

and freshness at odds with the impression generated otherwise of an EU beset,
as a consequence of the prolonged saga of the Constitutional and Lisbon
Treaties, by paralysis and introspection.52
Assessing operations does need, however, to take proper cognisance of
impact on the ground. ESDP remains a relatively new initiative and it has
deployed in some extremely challenging circumstances. That it has mounted
operations in such zones of danger and complexity at all, and that these have
occurred via ESDP rather than, say, the UN is in itself a measure of progress.53
With this in mind, ESDP has scored some notable successes. Operation
Artemis in the Democratic Republic of Congo (DRC) helped stabilise a
precarious humanitarian situation and was a path-breaking case of an
autonomous (that is, without recourse to NATO), rapidly assembled and farflung ESDP mission. EUFOR RD Congo in 2006 performed similarly, on this
occasion supporting the work of the local UN mission (MONUC) and providing a stable environment in the capital Kinshasa for the conduct of elections.
Further afield in Aceh in Indonesia, the EU monitoring mission successfully
oversaw a ceasefire between local separatists and the Indonesian authorities.
ESDPs clearest successes, however, have been in the Western Balkans.
EUFOR, ESDPs biggest mission so far, has been largely successful, both in
discharging its mandate of post-conflict stabilisation and in effecting a working relationship with NATO. Operation Concordia in Macedonia shares a similarly positive assessment, having also worked alongside NATO and, in this
case, helping lay the ground for a stabilisation of the country that would eventually see it obtain EU candidate status. Early assessments of EULEX Kosovo,
operational since December 2008, have also been upbeat.54
Set alongside these positive examples there are, however, some obvious
failings. EUPOL, the police assistance mission in Afghanistan, is widely
regarded as among ESDPs greatest disappointments slow to deploy, lacking
direction and subject to an ill-judged transference of the Bosnian experience.55
The EUJUST LEX rule-of-law mission in Iraq, meanwhile, was hampered
from the outset by political divisions among the Member States. The positions
52
53
54
Such a positive reading of ESDP can be found in Howorth, n9 above, p. 240.

Menon, n7 above, pp. 23031.
These assessments are summaries of detail provided in what is the most
comprehensive survey to date of ESDP operations. See chapters 5, 6, 9, 14, 18 and 21
in Grevi et al. (eds), n40 above. See also the chapter in this volume by Keukeleire,
Kalaja and ollaku.
55
Korski, D., Shaping Europes Afghan Surge, Policy Brief (Brussels:
European Council on Foreign Relations, March 2009), p. 9; Dempsey, J., Europes
Afghan Mission Still in Disarray, International Herald Tribune, 18 November 2009.
222
of France and Spain prevented the mission from deploying in country and thus
constrained from the outset its operational usefulness.56 In Georgia, similarly,
caution among some Member States at deploying in a Russian area of interest
limited the size and duration of EUJUST THEMIS, a mission whose effectiveness was also undermined by incompetent planning, poor financial
management and uncertain liaison with local authorities.57
Over and above these specific instances, a more general criticism also
stands out. In its various declarations on the matter, the EU has attached a farreaching level of ambition to ESDP.58 Yet, as Nick Witney has pointed out,
ESDP missions have been characterised by a lack of precisely this quality.59
In most cases, missions have occurred in places where a robust NATO presence (as in Kosovo, Bosnia and Macedonia) or a UN role (as in Congo and
Kosovo) had already paved the way for deployment. This is in itself not to be
decried in that the EU has still performed a very valuable and, in both Bosnia
and Kosovo, extensive role in these places. Nonetheless, in many cases, the
EU has operated in a very circumscribed fashion be this in terms of the operational mandate, duration of the mission or strength of deployed personnel.
Indeed, some missions have quite simply not been equal to the task before
them (EUPOL, Afghanistan), have been too time-limited to have any lasting
effect (EUJUST Themis in Georgia) or too small in scale to tackle the severity and enormity of the local environment (EU SSR Guinea-Bissau, EUSEC
RD Congo). A lack of ambition has also meant ESDP has sometimes failed to
deploy where otherwise it may have proven beneficial. Crises in Darfur and
the DRC in late 2008 both provided occasions for discussion of ESDP intervention but in neither case did an operation materialise. What this seemed to
demonstrate was ESDPs limits, a lingering caution in the face of what
appeared to be the more testing cases of crisis management.
56
Korski, D.,EUJUST LEX (Iraq), in Grevi et al. (eds), n40 above, pp.
23141.
57
Kurowska, X. EUJUST THEMIS (Georgia), in Grevi et al. (eds), n40 above,
pp. 2019.
58
See, for instance, Declaration by the European Council on the Enhancement
of the European Security and Defence Policy (ESDP), Annex 2, Presidency
Conclusions, Brussels, 1112 December 2008, in Glire, C. (comp.), EU Security and
Defence: Core Documents 2008, Chaillot Paper No. 117 (Paris: European Union
Institute for Security Studies, 2009), p. 464. This outlines the range of military and
civilian operations which it is envisaged the EU should be capable of conducting simultaneously under ESDP auspices in the years ahead.
59
Witney, n8 above, p. 41.
223
EFFECTIVE MULTILATERALISM
The security and prosperity of the EU, the 2003 European Security Strategy
proclaimed, rests on the promotion of an effective multilateral system.60 The
Lisbon Treaty, similarly, commits the EU to cooperation with third countries,
and international, regional or global organisations, and to promoting multilateral solutions to common problems.61 True to this spirit, ESDP has developed as an inclusive initiative. Its credibility and, to some extent, its
effectiveness have been premised on the generation of local, regional and
global partnerships.
Two strands of policy are relevant here. The first, and one apparent from its
inception, was an openness to third-party involvement. Specific bilateral
arrangements have been worked out with significant operational partners
(Russia, Ukraine, Canada) and ESDP missions have been characterised by
varying levels of engagement by non-EU contributors, including putative
members, local states of influence and strategic partners (see Table 7.3). The
added value of these contributions has not always been apparent partner
contingents have often been very small and difficult to integrate but they
serve the added political purpose of rendering particular missions more
acceptable both to local populations and to international opinion. Second,
arrangements have been negotiated and developed with important institutional
actors including NATO, the UN, the African Union and the OSCE (see Table
7.3). Space prevents full treatment of all of these. Links to NATO (the longeststanding arrangement) and with the UN (more recent and reflective of ESDPs
growing reach), however, illustrate some of the character of this inter-organisational cooperation.
The relationship with NATO has significant pedigree. Throughout the
1990s, considerable effort had been expended on fashioning a workable relationship between NATO and the WEU and these arrangements subsequently
formed the basis of dialogue between the Alliance and the EU from 1999. The
overlapping but differing memberships of the two bodies (from mid-1999,
NATO included six European non-EU members62 as well as Canada and the
US) and the need to obtain access to NATO resources for certain mission
scenarios meant such dialogue was both an operational and a political necessity. A formal package of measures to facilitate this was finalised in March
2003 (known as Berlin-plus). Shortly afterwards, the EU launched two operations Operation Concordia in Macedonia and Althea in Bosnia which
60
61
62
Missiroli (comp.), n51 above, p. 329.

Article 21(1) TEU.
Iceland, Norway, Turkey, the Czech Republic, Hungary and Poland.
224
Table 7.3
ESDP in a multilateral world (missions ongoing October 2009)
Operation
Region
Connection of ESDP operation Third party

to other international
involvement
organisations
in ESDP
operation
EUPM
Bosnia
Western Balkans
Follow on from UN Police

Mission
Canada, Iceland,
Norway, Russia,
Switzerland,
Turkey, Ukraine
EUFOR
Althea
Western Balkans
Formal cooperation with

NATO (Berlin-plus)
EUJUST
LEX Iraq
Middle East
EU BAM
Moldova/
Ukraine
EUPOL
COPPS
Palestinian
Territories
EUBAM
Rafah
Palestinian
Territories
EUPOL
Afghanistan
Western former
Soviet Union
Albania, Chile,
FYROM,
Switzerland,
Turkey
Jordan and Egypt
host training events
for Iraqis
Georgia,
Kazakhstan,
Tajikistan
Norway, Canada
Cooperation with UN
(UNAMA).
Absence of a comprehensive
agreement with NATO
(i.e. Berlin-plus); ad hoc
cooperation (e.g. via individual
arrangements with
NATO-led Provincial
Reconstruction Teams)
Political context of UN
Eastern Congo Stabilisation
Plan but no formal agreed
EUUN cooperation
UNSCR 1856 provides for
cooperation between the local
UN mission, MONUC, and
the EU
Canada, Croatia,
Norway, New
Zealand
Middle East
Middle East
Central Asia
EUPOL
RD Congo
Central Africa
EUSEC
RD Congo
Central Africa
Canada, Turkey,
Switzerland,
Angola

Operation
Region
EU SSR
GuineaBissau
EULEX
Kosovo
West Africa
Western Balkans
Transition from rule-of-law

aspects of UNMIK
EUMM
Georgia
South Caucasus
EUMM de facto replaces

withdrawn missions of
OSCE and UN (UNOMIG)
EU
NAVFOR
Atalanta
East African
coast
In support of UNSCRs to
promote anti-piracy actions
and to protect vessels of
the UN World Food
Programme
225
Connection of ESDP operation Third party

to other international
involvement
organisations
in ESDP
operation
Norway,
Switzerland,
Turkey, Croatia,
Canada, USA
Presence of ESDP
mission premised
on a bilateral
agreement with
Russia
Croatia, Norway
Source: G. Grevi, D. Helly and D. Keohane (eds), European Security and Defence Policy: The
First Ten Years (19992009) (Paris: EU Institute of Security Studies, 2009), passim.
relied on NATO cooperation. Formal institutional links have developed in

tandem. These include meetings between the PSC and the North Atlantic
Council, between respective Military Committees and the convening of a
NATOEU Capability Group. EU officers, further, enjoy a permanent presence at SHAPE and NATO maintains liaison with the EU Military Staff.63 The
assumption behind these contacts is that the EU and NATO would engage in a
long-term cooperative division of labour harnessing each others strengths in
the fields of post-conflict reconstruction and stabilisation, and defence and
security sector reform.64 And this seems an entirely reasonable objective; as
the House of Commons Select Committee on Defence has noted, both bodies
share a similar security agenda and both [are] engaged in a process of seeking to enhance capabilities and improve force generation for expeditionary
operations. The reality, however, has in the words of the same committee,
been a relationship [] fraught with difficulties [and] plagued by mistrust
63
Details of Berlin-plus and associated arrangements can be found at Simkus, J.
(rapporteur), NATOEU Operational Cooperation (NATO Parliamentary Assembly,
document 166 DSCTC 07 E, 2007), paras 2021.
64
Ibid, paras 916.
226
and unhealthy competition. Little progress, it concludes, has been achieved

in recent years in improving a relationship which [has] remained stalled and
inefficient.65 The upshot has been that only the two missions noted above have
formally made use of the Berlin-plus mechanism. Both have been generally
regarded as successful.66 Elsewhere, there has been an unnecessary duplication
of effort (the EU and NATO launched separate missions to Darfur in 2005) or
sub-optimal cooperation between local EU and NATO operations (as in Kosovo
and Afghanistan), which has undermined the effectiveness of both.67
Responsibility for this deadlock cannot simply be laid at the door of the
EU. The core problem is political and specifically the refusal of Turkey to
countenance fuller discussions on EUNATO collaboration because this
would involve Cyprus (a member of the EU since 2004). This has, in effect,
blocked the initiation of new Berlin-plus operations and stymied high-level
consultations on problems like Afghanistan where both organisations are
present. While less disruptive, there have also been some within the EU
(France most notably) who have themselves been less than enthusiastic in their
support of EUNATO dialogue.68 The broader context, however, is also relevant. The problems of NATOEU cooperation are, in part, the consequence of
two bureaucratic machines finding it difficult to obtain a functional fit. This is
despite a seeming convergence of roles (the EU is a civilian power acquiring
military instruments whereas NATO is a military power moving increasingly
into civilian areas of responsibility) and a clear sense of continuing functional
specialisation (NATO could benefit as much from the EUs civilian resources
of humanitarian aid, police and legal training etc., as could the EU from
NATOs military assets). These seeming synergies have, however, come up
against some profound political forces. The EUs growing international role
has been welcomed in NATO by the US69 but American leadership has not
materialised in service of unblocking Turkish obstructionism. The US,
65
House of Commons, Defence Committee, The Future of NATO and European
Defence, Ninth Report of Session, 2007-08 (London: The Stationery Office, 2008), pp.
812.
66
Cascone, G., ESDP Operations and NATO: Cooperation, Rivalry or
Muddling Through?, in Merlingen, M. and Ostrauskait?, R. (eds), European Security
and Defence Policy: An Implementation Perspective (London and New York:
Routledge, 2008), pp. 14258.
67
Simkus, n63 above, paras 3240.
68
In mitigation, Frances return to NATOs integrated command structures in
2009 as well as the coming to power of the Obama administration have modified the
attitude in Paris.
69
When launched, ESDP was looked upon sceptically by the Clinton administration out of a concern that it would undermine NATO. Berlin-plus assuaged this
worry. In light of NATOs burden in Afghanistan, the Bush and Obama administrations
would both come to support a stronger ESDP role in crisis management.
227
mindful of years of observing EU division and weakness in the CFSP field,

also remains sceptical of ESDPs deliverables. Some in the EU (France,
Germany, Spain), meanwhile, are suspicious of NATOs transformation and
the priority it attaches to Afghanistan, regarding the Alliance as a body less in
service of European or Transatlantic interests and more one whose role is to
deliver European resources in service of US (under Obama as much as Bush)
grand strategy.70
Turning to the UN, here a formal relationship is roughly coincident in time
with the history of ESDP (formal EUUN contacts having only been established in 2000). This is also a relationship in which purposes have largely
converged. The EUs approach to crisis management is based on the integrated
application of civilian and military instruments; so too with the UN, whose
peacekeeping missions rely on a synthesis of political, security, humanitarian
and developmental approaches.71 As the UNs role in peacekeeping has
become severely overstretched and as the EU has acquired experience of crisis
management, so the opportunities for fruitful cooperation have multiplied. In
Bosnia, the EU Police Mission (deployed from 2002) was the successor to the
UN International Police Task Force. And in the Democratic Republic of
Congo, the EUs Operation Artemis was prompted by a request of the UN
Secretary General (endorsed by the Security Council) and paved the way for a
strengthening of the UN operation (MONUC) there. These two experiences, in
turn, gave rise to a more institutionalised relationship formalised in declarations signed in September 2003 and June 2004 and the creation of a Steering
Committee of UN and EU officials. Thereafter, and perhaps reflecting its more
ambitious quality, so EUUN cooperation has become more strained. In Chad,
parallel EU and UN missions were launched in 2007 authorised by UNSCR
1778. Problems of coordination then ensued although this was less to do with
political controversy (the EU mission was fully supported within the Security
Council including, materially, by Russia which agreed to provide it with helicopters) than with a reluctance among some EU member countries to deploy
and unclear lines of communication between the General Affairs and External
Relations Council (GAERC) and the Security Council.72 In the DRC, similarly, cooperation with MONUC, the local UN mission, has proven difficult as
controversy has arisen over whether the EU or the UN should take the lead
role in security sector reform.
70
71
Howorth, n9 above, p. 177.

Morsut, C., Effective Multilateralism? EUUN Cooperation in the DRC,
2003-2006, (2009) 16 International Peacekeeping 268.
72
Gowan, R., ESDP and the United Nations in Grevi et al. (eds), n40 above,
pp. 1213.
228
As these examples suggest the EUUN relationship is far from perfect.

There is a broader context here which is also relevant. European governments
have been reluctant to commit personnel to UN peacekeeping missions and
this is, in part, an opportunity cost of prioritising ESDP missions. Further, as
noted above, a desire for political control over ESDP has meant recourse to the
Security Council has not been seen as essential when framing an operation.
Thus, EUPM in Bosnia, Operations Concordia and Proxima in Macedonia,
EUJUST THEMIS in Iraq, EUPOL KINSHASA and EUJUST LEX in
Georgia have all been initiated without formal Security Council authorisation.73
In summary, the overall pace of progress can be regarded as modest. The
EUUN relationship is relatively new and in less than a decade has moved
from a non-existent cooperation in crisis management to what Richard Gowan
has described as frequent if imperfect operational interaction. ESDP via the
UN has thus moved from a paper policy to concrete engagement in global
security74 even if this has exhibited a number of operational and political
difficulties.
CAPABILITIES
The ambition and effectiveness of ESDP operations is a matter which rests
squarely on the question of resources. Problems in generating military and
civilian capabilities for ESDP has, however, been a dead weight dragging the
initiative down. At its launch, ESDP was premised upon improvements in
European military capabilities further development of the appropriate capabilities and instruments, the Cologne European Council declaimed, were
necessary for the EU to fully assume its tasks in the field of conflict prevention and crisis management.75 The Helsinki European Council of December
1999, meanwhile, added an important supplement by committing the EU to
develop non-military crisis response tools.76
73
Tardy, T., EUUN Cooperation in Peacekeeping: A Promising Relationship
in a Constrained Environment, in Ortega, M. (ed.), The European Union and the
United Nations: Partners in Effective Multilateralism, Chaillot Paper, No. 78 (Paris:
EU Institute for Security Studies, 2005), pp. 4950.
74
Gowan, n72 above, p. 125.
75
Declaration of the European Council on Strengthening the Common
European Policy on Security and Defence (Cologne, 34 June 1999), reprinted in
Rutten (comp.), n2 above, p. 41.
76
Presidency Report on Non-Military Crisis Management of the European
Union (Helsinki, 1011 December 1999), reprinted in Rutten (comp.), n2 above, pp.
8990.
229
To these ends, ESDP has been premised upon a formal commitment of the
Member States to both military and civilian capability goals in order to carry
out the range of missions envisaged for ESDP. In the military sphere, ESDP
kicked off with the Helsinki Headline Goal (with its attention-grabbing
commitment to a 60,000-strong European Rapid Reaction Force). Difficulties
in generating assets, in turn, resulted in the European Capabilities Action Plan
(ECAP) of December 2001, followed in June 2004 by a new Headline Goal
2010 (notable for its endorsement of the battlegroup concept). The EDA
then added its voice to calls for improvement with the publication in October
2006 of a Long-Term Vision for European Defence Capability and Capacity
Needs. Identified shortfalls were given further prominence in a Capability
Development Plan (CDP) issued the following July, and in December 2008 the
process turned full circle with the Council Declaration on Strengthening
Capabilities, a reprise of the targets of the Headline Goals. As for civilian
goals, an Action Plan on non-military crisis management was agreed at
Helsinki and this was followed at the Feira (June 2000), Nice (December
2000) and Goteborg (June 2001) European Councils by agreed targets for
policing, rule of law and civilian administration missions. Increasing attention
to civilian missions, in turn, led to the adoption of a further Action Plan on
civilian capabilities in June 2004 and a Civilian Headline Goal 2008 that
December.
The number and repetitive nature of these various statements is certainly
suggestive of a keen sense of priority and this effort has produced some benefits. These can, in one sense, be regarded as conceptual, involving the identification of the requisite assets to meet operational scenarios and their
adjustment in light of operational experience. The EDAs Long-Term Vision
supplemented by the CDP is the apotheosis of this process.77 Further, ESDP
has provided an additional spur to military reform among the member states
(initiatives launched by NATO have acted in parallel) involving shifts in
recruitment, training and procurement to better meet the needs of conflict
management and force projection. Thus, while equipment shortfalls among
European militaries are legion, ESDP (and specifically the work of the EDA)
has made some impression on beginning the long-term process of cutting
redundant equipment from national inventories, rectifying capability gaps (in
strategic air transport, and helicopters), pooling procurement, and developing
joint research and technology projects.78 Yet for all this, capabilities remain
ESDPs Achilles heel. Even Solana, ESDPs professional optimist, was
77
Weis, A., Improving Capabilities for ESDPs Future Needs, in de
Vasconcelos (ed.), n27 above, 10710.
78
Grevi, G. and Keohane, D., ESDP Resources, in Grevi et al. (eds), n40
above, pp. 7088, 1045
230
moved to note in 2007 the EUs negative track record in this regard.79 This
comment followed publication of a Capabilities Improvement Chart which
made plain that only twelve of the 64 capability shortfalls included in the original Headline Goal had been addressed. Two years later, Solana still remained
concerned; capabilities, he suggested, was ESDPs major failing, accounting
for the gap between our ambitions and the reality of policy implementation.80
Many observers of ESDP have noted that low defence spending largely
accounts for this poor record,81 and it is certainly true (as noted below) that the
trend in Europe has been one of long-term decline. Yet, the total spend is still
considerable: in 2008, France, the UK, Germany and Italy were respectively
the worlds third, fourth, sixth and eighth largest military spenders.82 What
seemingly matters, therefore, is how this money is spent. As Nick Witney has
shown, too little is spent among the EU 27 on research and development and
procurement, and too much on personnel costs. With some notable exceptions
(the UK, Sweden, France, the Netherlands and, to some degree, Germany and
Italy), the upshot is armed forces ill-suited to the types of mission priorities
associated with ESDP. Only 30 per cent of European forces are capable of
operating outside of national territory and in 2006 only 5 per cent were actually deployed in extra-European missions.83
Nearly two decades after the end of the Cold War, such deep-seated problems of military transformation remain endemic among many European militaries. How they feed into ESDP can be seen from the brief history of the EU
Battlegroups. This initiative marked a seeming shift towards qualitative
improvements given its emphasis on swiftly deployable effective, credible
and coherent force packages.84 Declared operational at the beginning of 2007,
these formations had still not been deployed as of this writing. Questions also
continue to hang over the degree of inter-operability among participating militaries and thus the readiness of Battlegroups to deploy in the demanding crisis
situations for which they are designed.85
79
Speech in Berlin, 29 January 2007 at: http://www.europa-eu-un.org/articles/
en/article_6720_en.htm (accessed 10/1/2010).
80
Solana, n3 above.
81
Menon, n7 above, p. 234.
82
Stalenheim, P. et al., Military Expenditure Data, 19992008, Stockholm
International Peace Research Institute, Military Expenditure Database, at:
http://www.sipri.org/yearbook/2009/05/05A (accessed 10/1/2010).
83
Witney, n8 above, pp. 1621.
84
Headline Goal 2010, Annex I to the Presidency Report on ESDP (European
Council, Brussels, 1718 June 2004), in EU Security and Defence: Core Documents
2004, Chaillot Paper, No. 75 (Paris: European Union Institute for Security Studies,
2005), p. 112.
85
Herz, J., Military Capabilities A Step Forward in ESDP?, (2009) 46
231
A similar picture emerges when considering civilian capabilities. Again, the

issue is not entirely a matter of resources. As Grevi and Keohane note, the
budget for CFSP has increased markedly during the last decade, a trend that
can be ascribed almost exclusively to the growth and costs related to ESDP
civilian operations.86 The problems, rather, are bureaucratic and political. For
example, the disbursement of funds has often proven overly time-consuming,
thus undermining the early stages of certain missions. Recruitment, meanwhile, has not been easy. To mount civilian operations, the EU relies on
personnel (police officers, judges, customs officers, etc.) seconded from the
Member States, a pool of expertise that is often difficult to tap owing to a lack
of career incentives for working outside the domestic environment. Blame for
this does not entirely fall upon the EU. Less forgivable is the problem of political will. A member state audit carried out by Korski and Gowan notes the
professionalism and commitment of some in the EU in training and recruitment (Denmark, Finland, Germany, the Netherlands, Sweden and the UK) but,
equally, the under-performance and indifference of others (France, Italy,
Bulgaria, Cyprus, Estonia, Greece, etc.).87
The resourcing and modernisation of military capabilities has bedevilled
European militaries for decades. Long recognised in NATO, ESDP is simply its
contemporary manifestation, now with the added problem of generating competencies in civilian crisis management. And as the demand for ESDP missions has
grown so these deficiencies have become an increasing cause for concern. In
short, just like its parent CFSP, ESDP has become victim to its very own version
of the capabilitiesexpectations gap.88 A rationalisation of defence expenditure
along with a greater pooling of defence resources and projects is one long-term
means of addressing this. So too are the so far untested provisions on Permanent
Structured Cooperation in the Lisbon Treaty that allow for the more able and
willing to act in concert free of certain institutional and decision-making
constraints.89 But ultimately, given the irreconcilable mismatch between the
proliferation of global crises and ESDPs limited resources, the EU may simply
have to learn to do less but to do less better.
European Security Review, October, p. 3. On the development of the EU legal framework on defence industries, see the chapter by Koutrakos in this volume.
86
Grevi and Keohane, n78 above, p. 92.
87
Korski, D. and Gowan, R., Can the EU Rebuild Failing States? A Review of
Europes Civilian Capacities (London: European Council on Foreign Relations, 2009),
pp. 4651.
88
The well-known formulation derived from Hill, C., The
CapabilitiesExpectations Gap, or Conceptualizing Europes International Role,
(1993) 31(3) Journal of Common Market Studies, 305.
89
Biscop, S., Permanent Structured Cooperation and the Future of ESDP,
(2008) 20 Egmont Paper (Brussels: Royal Institute for International Relations).
232
CONCLUSION
ESDP represents a triumph of heightened expectations. The EU has been able
to mount a range of both military and civilian operations and has done so both
near and beyond the locality of Europe. In the process it has managed to forge
agreement among a normally fractious and divided membership and has
created an institutional machinery virtually from scratch. All this, moreover,
has served to promote the EUs autonomy and influence. ESDP operations
have, by and large, eschewed NATO assistance and in some instances the EU
has come to be regarded as an equal partner either of the Alliance (as in the
Balkans) or of the UN (as in Africa). From a standing start, in the words of
Solanas advisor Robert Cooper, the EU has in the first decade of the 21st
century vastly improved upon the record of policy failure and inaction that
characterised the 1990s. It may still lack the capabilities and decisiveness of
response that characterise a great power. But while the EU is not the US,
Russia, China or India, its record of conflict management is, arguably, no
worse than that of these states. The ponderous and incremental nature of its
policy may, in fact, make it a good deal better [i]f the EU is slow to decide,
Cooper suggests, it may also be slow to make mistakes.90
Precisely because the EU now has a record of intervention, one that has
gone hand in hand with bald claims of international responsibility, so too have
expectations grown that the EU do more and do it more effectively. Yet for all
the progress of the last ten years, the EU continues to act within severe
constraints. The vexed issue of capabilities has trammelled the ambitions of
ESDP throughout is short life. Calls for rises in military expenditure have
fallen on deaf ears since 1999. This is the product of long-term historical
trends (the blunting of militarism among political elites and the political priority given to domestic economic and social expenditure) which have gestated
since the end of the Second World War. The end of the Cold War and, more
recently, the urgent fiscal crisis confronting European economies has served
only to reinforce this retreat.91 There is, in short, no prospect of any of the
European powers reversing this trend of declining military expenditure or, by
that same token, of the EU being able to extract greater resources from its
members to materially develop ESDP. The initiative thus remains reliant on
more effective collaborative use of existing resources, a process which is still
in its early stages and, whatever the merits of the EDA and other initiatives,
90
Cooper, R., Response, in Grant, C., Is Europe Doomed to Fail as a Power?
(London: Centre for European Reform, 2009), pp. 3033.
91
For a considered historical analysis of these trends see Sheehan, J., The
Monopoly of Violence: Why Europeans Hate Going to War (London: Faber and Faber,
2008), esp. pp. 21721.
233
one which has to compete with national reservations and the ongoing priority
accorded to NATO by a majority of EU members.
Over and above this, a growing sense of political retrenchment is also
evident. While ESDP was never meant to fight wars, the long, brutal NATO
campaign in Afghanistan will have a shaping influence. Already commitments
in that theatre have curtailed the readiness of some, not least the UK, Germany
and the Netherlands, to lend support to some putative EU-led operations.92
This constraint will continue as long as ISAF remains in situ. Even after its
withdrawal, a consequent military and political exhaustion will linger thereby
ruling out military adventurism abroad. Such caution will have greater effect
on NATO than on the EU, but it will also ensure that ESDP does not stray
beyond the operational parameters that have guided it since its inception.
The low level of ambition so bemoaned by commentators is, therefore,
likely to persist with the EU making periodic, time-constrained and limitedimpact forays into global conflict management. Such a prospect is not to
condemn ESDP with faint praise. The EU will continue to be a security
provider in demand (both by the Member States and by external audiences).
Further, the very fact that it will have to operate within limits will encourage
ongoing innovation. And this will not simply be a matter of institutional reconfiguration. As ESDP reached the end of its first decade, it launched what in
many ways may come to be regarded as its most significant mission to date.
Operation Atalanta, an anti-piracy mission off the coast of Somalia (and also
embracing the Gulf of Aden and the Red Sea), has entailed an area of operation of some 1.4 million square nautical miles, the carrying out of a multiplicity of complex tasks (intelligence gathering, monitoring, law enforcement, and
escorting maritime transport), the involvement of some 2,000 personnel from
nineteen EU states and coordination with a parallel NATO operation as well as
communication with the American, Russian, Chinese and Indian fleets.93 Not
only has this been the EUs first ever naval operation, it was launched without
recourse to NATO resources and represented a conscious application of strategic thinking an appreciation of the need to stabilise the EUs geopolitical
environment and to directly uphold EU strategic interests (keeping sea-lanes
open) while also serving broader multilateral purposes (protecting vessels of
the UN World Food Programme). Such strategic thinking has also been in
evidence in Balkan missions, but Atalanta is significant in that it has occurred
92
Thus, in December 2008 the mooted ESDP deployment to the DRC was
opposed by the UK on the grounds that it lacked sufficient deployable forces to assist
the mission. See Gowan, ESDP and the United Nations in Grevi et al. (eds), n40
above, p. 125.
93
Helly, D., EU NAVFOR Somalia: The EU Military Operation Atalanta in
Grevi et al. (eds), n40 above, pp. 395400.
234
at greater geographic remove from the EU, and without the protective cover of
(or prior preparation by) NATO and the UN.94
The very innovative nature of this mission suggests that Atalanta will not
necessarily be a template for ESDPs future development. What it does
demonstrate, however, is that ten years on from its launch ESDP has travelled
a long way, conceptually, operationally and politically.
94
Germond, B. and Smith, M. E., Re-Thinking European Security Interests and

the ESDP: Explaining the EUs Anti-Piracy Operation, (2009) 30 Contemporary
Security Policy pp. 57376, 5878.
8. The role of law in Common Security

and Defence Policy: functions,
limitations and perceptions
Panos Koutrakos
INTRODUCTION
In an essay originally written in the early 1990s, Weiler wrote that, [i]n some
ways, Community law and the European Court were everything an international lawyer could dream about: the Court was creating a new order of international law in which norms were norms, sanctions were sanctions, courts
were central and frequently used, and lawyers were important.1
This emphasis on law as a motor for integration has been apparent in the
extraordinary process of group therapy which the European Union has undergone in the last nine years: the Laeken Declaration of the European Council in
December 2001, the establishment of the European Convention, the process of
the drafting of the Treaty Establishing a Constitution for Europe, the fateful
story of its ratification, the Intergovernmental Conference which led to the
signing of the Lisbon Treaty in December 2007, the tumultuous process of its
ratification and its entry into force on 1 December 2009, all brought the law to
the very centre of the debate about the Unions direction. And as the process
got longer and the road to the entry into force of the relevant legal arrangements revealed more roadblocks and turns than their drafters had envisaged,
the debate became more heated and its subject-matter wider and more
profound. The fate of the legal rules agreed upon first in the Constitutional
Treaty and then in the Lisbon Treaty was associated with the very identity of
the Union: law was seen as guaranteeing the effectiveness of the Unions
stature on the world scene. It is interesting in this context that, during the
RussiaGeorgia crisis in 2008, President Sarkozy of France, then holder of the
rotating EU Presidency, wrote that, had the Lisbon Treaty entered into force,
J. H. H. Weiler, The Constitution of Europe (Cambridge: CUP 1999) pp2056

where he goes on: Community law as transformed by the European Court was an antidote to the international legal malaise.
235
236
the Union would have had the appropriate institutions to deal with international crises.2
The Lisbon Treaty introduced a number of institutional innovations which
provided a focal point for this debate about the role of legal rules in the EUs
foreign affairs. The appointment of the President of the European Council
under Article 15(6) TEU, and the High Representative of the Union for
Foreign Affairs and Security Policy under Article 18 TEU had been anticipated
eagerly as boosting the ability of the Union to act on the international scene.
Similarly, the establishment of the European External Action Service (EEAS)
under Article 27(3) TEU had been viewed as enhancing the coherence of the
EUs foreign policies. The appointment of Herman van Rompuy, who had
been the Prime Minister of Belgium for nine months, as the first President of
the European Council, and Baroness Ashton, the Trade Commissioner for a
year and a former head of a regional health authority in the United Kingdom,
were subsequently viewed as distinctly underwhelming. As for the inter-institutional squabbles which marred the process of setting up the EEAS, they were
not only unhelpful but also entirely typical of the internal conflicts which
underpin the shaping of the Unions external posture.
The analysis of the institutional innovations introduced by the Lisbon
Treaty is beyond the scope of this chapter.3 Instead, the aim of this chapter is
to focus on legal rules which govern the Common Security and Defence
Policy, and examine the different functions which they may assume in areas
which are at the core of national sovereignty. Therefore, the point of reference
for this analysis is distinct from that of the quote which began this chapter: by
focusing on the CSDP, one moves away from the tighter legal system set out
in what used to be the Community legal order. However, it will become apparent that, whilst further away, the subject matter of this chapter is not entirely
distinct from that legal order. The choice of topics it will discuss is highly
selective, the aim being to highlight different functions that legal rules assume
in the CSDP context. The analysis is structured as follows. First, the chapter
will examine the mutual assistance clause introduced at Lisbon and will assess
its limitations in terms of the legal duties it imposes on Member States.
Second, it will outline the provisions on permanent structured cooperation and
will comment on the issues which its application raises. Third, it will analyse
the only provision of primary law on defence products, namely Article 346 of
the Treaty on the Functioning of the European Union (TFEU), explain its
evolving interpretation and set it out within the broader legal and political
CSDP context.
2
3
Le Figaro, 18 August 2008.

See the chapters by Cremona, and Duke.
The role of law in Common Security and Defence Policy
237
MUTUAL ASSISTANCE CLAUSE: RULES ON THE LIMITS

OF LAW
For the first time in the Unions constitutional history, the Lisbon Treaty introduced a mutual assistance clause. This is laid down in Article 42(7) TEU
which reads as follows:
If a Member State is the victim of armed aggression on its territory, the other
Member States shall have towards it an obligation of aid and assistance by all the
means in their power, in accordance with Article 51 of the United Nations Charter.
This shall not prejudice the specific character of the security and defence policy of
certain Member States.
Commitments and cooperation in this area shall be consistent with commitments
under the North Atlantic Treaty Organisation, which, for those States which are
members of it, remains the foundation of their collective defence and the forum for
its implementation.
This clause imposes on Member States a duty the scope of which appears to
be very broad: by all the means in their power. The caveats which are set out
are broad too, as they relate to compliance with international law,4 the neutrality of certain Member States and the fundamental choices about security and
defence made by Member States in relation to NATO. This formulation of the
solidarity clause is entirely consistent with the tenor of CSDP and the balance
which it seeks to strike between the security and defence choices made by the
Member States and the common policy which it envisages for the Union. It is
recalled that, under Article 42(2) subparagraph 2 TEU, the CSDP
shall not prejudice the specific character of the security and defence policy of
certain Member States and shall respect the obligations of certain Member States,
which see their common defence realized in the North Atlantic Treaty Organisation
(NATO), under the North Atlantic Treaty and be compatible with the common security and defence policy established within that framework.
However, the questions which Article 42(7) TEU raises are how far are
Member States required to go in order to comply with their duty and how
4
According to Art. 51 UN Charter, [n]othing in the present Charter shall
impair the inherent right of individual or collective self-defence if an armed attack
occurs against a Member of the United Nations, until the Security Council has taken
measures necessary to maintain international peace and security. Measures taken by
Members in the exercise of this right of self-defence shall be immediately reported to
the Security Council and shall not in any way affect the authority and responsibility of
the Security Council under the present Charter to take at any time such action as it
deems necessary in order to maintain or restore international peace and security.
238
rigorous can the enforcement of this duty be. Its wording suggests that, rather
than a mutual defence clause, the duty this provision sets out is one of mutual
assistance. This is a significant distinction because, quite apart from the
semantics of the clause, it suggests two points: on the one hand, military
means constitute merely one option open to a Member State when it examines
how best to comply with its duty; on the other hand, it suggests that there is a
broader set of parameters within which national authorities are expected to
make this assessment. Even with due regard to the States to which the above
caveats refer, compliance with the mutual assistance clause cannot but depend
on the subjective assessment of a Member State as to how best it may assist a
State which is a victim of armed aggression on its territory. This assessment is
subject to multifarious considerations, not least of a political and economic
nature. Such inherently indeterminate criteria do not lend themselves to a
rigorous mechanism of verification or control. It is interesting that, in their
Decision on the Concerns of the Irish People on the Treaty of Lisbon, the
Heads of State or Government Meeting within the European Council state that
the CSDP does not prejudice the security and defence policy of each Member
State, including Ireland, or the obligations of any Member State.5
Furthermore, in a case of armed aggression on the territory of a Member
State, time would be of the essence, and protracted negotiations between
Member States would merely reduce the relevance of the assistance which the
State under attack would require. In other words, it is for each Member State
to ascertain which means it is prepared to utilise and in which manner in order
to assist another State under attack. There can be no common assessment of
whether, for instance, military means should be relied upon by all Member
States. After all, the EU is not a military alliance,6 and the mutual assistance
clause may not render it into one. Therefore, the similarity of their wording
notwithstanding, comparisons between Article 42(7) TEU and the mutual
Brussels European Council, 1819 June 2009, Presidency Conclusions,

1225/2/09 REV 2, Annex 1, p18.
6
See, for instance, Declaration 13 concerning the Common Foreign and
Security Policy which is annexed to the Lisbon Treaty: The Conference underlines that
the provisions in the Treaty on European Union covering the Common Foreign and
Security Policy, including the creation of the office of High Representative of the
Union for Foreign Affairs and Security Policy and the establishment of an External
Action Service, do not affect the responsibilities of the Member States, as they
currently exist, for the formulation and conduct of their foreign policy nor of their
national representation in third countries and international organisations.
The Conference also recalls that the provisions governing the Common Security and
Defence Policy do not prejudice the specific character of the security and defence
policy of the Member States.
239
defence clauses laid down in Article V of the Brussels Treaty7 or Article 5 of

the NATO Charter8 are misplaced.9
The above does not mean to suggest that the provision of Article 42(7) TEU
is not significant. On the one hand, it is a specific illustration of political solidarity, one of the main pillars of CFSP as laid down in Article 24(3) TEU. As
such, it may appear to merely state the obvious. However, when it comes to
the Unions foreign policy, the obvious often needs to be stated. It is recalled
that, when Greece claimed that its territorial integrity was undermined by
Turkey in the Imia incident in December 1995, and Spain made a similar claim
regarding Morocco in the Leila incident in July 2002, their fellow Member
States failed woefully to provide any substantial support in terms of political
solidarity, let alone even assurances about military assistance.10 It is against
this background that the mutual assistance clause must be understood. On the
other hand, as the principle of political solidarity, the interpretation of the
mutual assistance clause is subject to continuous redefinition: the development
of CSDP and political solidarity in general, and of common structures of military capabilities in particular, is bound to have an impact on how close to the
military end of the scale Member States would be prepared to go in order to
assist a Member State under attack.
There is another function of the mutual assistance clause which is noteworthy: against the various CSDP missions which are carried out in far-flung
places and export EU values to third parties, it renders the CSDP relevant to
This provides that, [i]f any of the High Contracting Parties should be the
object of an armed attack in Europe, the other High Contracting Parties will, in accordance with the provisions of Article 51 of the Charter of the United Nations, afford the
Party so attacked all the military and other aid and assistance in their power.
8
This reads as follows: The Parties agree that an armed attack against one or
more of them in Europe or North America shall be considered an attack against them
all and consequently they agree that, if such an armed attack occurs, each of them, in
exercise of the right of individual or collective self-defence recognised by Article 51 of
the Charter of the United Nations, will assist the Party or Parties so attacked by taking
forthwith, individually and in concert with the other Parties, such action as it deems
necessary, including the use of armed force, to restore and maintain the security of the
North Atlantic area.
Any such armed attack and all measures taken as a result thereof shall immediately
be reported to the Security Council. Such measures shall be terminated when the
Security Council has taken the measures necessary to restore and maintain international
peace and security.
9
See the statement to the contrary by Open Europe in House of Lords Select
Committee Twelfth Report The Treaty of Lisbon: An Impact Assessment (HL 62-II)
C35.
10
See J. Monar, The CFSP and the Leila/Perejil Island Incident: The Nemesis
of Solidarity and Leadership, (2002) 7 EFA Rev 251.
240
the Unions citizens in a much more direct and concrete manner. By suggesting a tangible benefit to the security of each Member State at a time of crisis,
it brings the Union closer to its citizens, hence meeting one of the main objectives of the reform of the EU constitutional order which started with the
European Convention and led to the entry into force of the Lisbon Treaty.11
In addition to the mutual assistance clause set out in Article 42(7) TEU,
there is a solidarity clause which is laid down in Article 222 TFEU. Its first
paragraph reads as follows:
The Union and its Member States shall act jointly in a spirit of solidarity if a
Member State is the object of a terrorist attack or the victim of a natural or manmade disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to:
(a) prevent the terrorist threat in the territory of the Member States;
protect democratic institutions and the civilian population from any terrorist
attack;
assist a Member State in its territory, at the request of its political authorities,
in the event of a terrorist attack;
(b) assist a Member State in its territory, at the request of its political authorities, in
the event of a natural or man-made disaster.
In addition to the Union, the other Member States are also to assist a Member
State under a terrorist attack or a victim of a natural or man-made disaster at
the request of its political authorities.12 The threats facing the Union are
assessed regularly by the European Council in order to ensure that both the
Union and its Member States can take effective action.13
The solidarity clause has a clear security and defence dimension. This is
illustrated by the reference to the military resources of the Member States, and
is acknowledged by its procedural provisions: according to Article 222(3)
TFEU, the Council decides on the arrangements for the implementation of the
clause following a joint proposal by both the Commission and the High
Representative; where this decision has defence implications, it will be
adopted by unanimity in accordance with Article 31(1) TEU, with the
European Parliament being kept informed;14 furthermore, the Council is
assisted by the Political and Security Committee, along with the CSDP structures (such as the EU Military Committee and the EU Military Staff).15
11
This features prominently in the Laeken Declaration of the European Council
(December 2001).
12
Art. 222(2) TFEU.
13
Art. 222(4) TFEU.
14
This implies that, in the absence of defence implications, decisions are
adopted by a qualified majority.
15
A standing committee provided for in Art. 71 TFEU will also participate, if
241
The core of the solidarity clause could well have been placed in Title V
TEU. In fact, it is striking that there is no reference to terrorism in the mutual
assistance clause in Article 42(7) TEU. After all, it is recalled that terrorism
features prominently in the European Security Strategy16 as well as the 2008
Report on its implementation.17 On the other hand, the reference to Article 222
TFEU illustrates the broader understanding of security which now informs the
Unions activities and establishes a link with the European Security Strategy
as the latter, even when the Union was based on the tripartite pillar structure,
puts forward the need for a combination of a broad range of instruments.18 The
significance of the reference to terrorism, as well as the solidarity clause itself,
is illustrated by the European Councils Declaration on Combating Terrorism.
Adopted in response to the terrorist attack in Madrid in March 2004,
the Declaration refers expressly to the precursor to Article 222 TFEU in the
Constitutional Treaty:19 it refers to the spirit of that provision and sets out
the commitment of the Member States, as well as the acceding States, to act
jointly in case one of them becomes the victim of a terrorist attack.20
In terms of its CSDP links, another noteworthy feature of the solidarity
clause is its broad scope. The action it envisages is not confined to response to
terrorist attacks. Instead, it is about prevention and protection, as well as assistance. The temptation for testing the outer limits of the Unions competence
might end up being too great in the light of the increasing securitisation of its
policies.
Finally, it is worth noting that, in their Decision on the Concerns of the Irish
People on the Lisbon Treaty, the Heads of State or Government of the
European Union state that it will be for Member States including Ireland,
acting in a spirit of solidarity and without prejudice to its traditional policy of
necessary by submitting joint proposals with the Political and Security Committee. The
former aims to ensure that operational cooperation on internal security is promoted
and strengthened within the Union and to facilitate coordination of the action of the
Member States competent authorities. Its proceedings may involve representatives of
the Union bodies, offices and agencies, and the Parliament and national Parliaments
must be kept informed of them.
16
A Secure Europe in a Better World: European Security Strategy (Brussels, 12
December 2003).
17
Report on the Implementation of the European Security Strategy: Providing
Security in a Changing World (S407/08, Brussels, 11 December 2008).
18
The ESS points out that, in contrast to the massive visible threat in the Cold
War, none of the new threats is purely military, nor can any be tackled by purely military means. Each requires a mixture of instruments (at 7).
19
Namely Art. 42 of the Constitutional Treaty.
20
There is also the following clarification: It shall be for each Member State or
acceding State to the Union to choose the most appropriate means to comply with this
solidarity commitment towards the affected State.
242
military neutrality to determine the nature of aid or assistance to be provided

to a Member State which is the object of a terrorist attack or the victim of
armed aggression on its territory.21
PERMANENT STRUCTURED COOPERATION: RULES

SETTING OUT A BROAD FRAMEWORK FOR ACTION
The Treaty provides a mechanism for permanent structured cooperation. In
accordance with Article 42(6) TEU, this is open to Member States whose
military capabilities fulfil higher criteria and which have made more binding
commitments to one another in this area with a view to the most demanding
missions. However, rather than merely outlining the relevant criteria, the
drafters of the Treaty defined them further. In a Protocol attached to the Lisbon
Treaty, the commitments on military capabilities are set out in detail. In Article
1, a Member State wishing to participate in a structured cooperation mechanism is required to
(a) proceed more intensively to develop its defence capacities through the development of its national contributions and participation, where appropriate, in multinational forces, in the main European equipment programmes, and in the activity of
the Agency in the field of defence capabilities development, research, acquisition
and armaments (European Defence Agency), and
(b) have the capacity to supply by 2010 at the latest, either at national level or as a
component of multinational force groups, targeted combat units for the missions
planned, structured at a tactical level as a battle group, with support elements including transport and logistics, capable of carrying out the tasks referred to in Article 28
B of the Treaty on European Union, within a period of 5 to 30 days, in particular in
response to requests from the United Nations Organisation, and which can be
sustained for an initial period of 30 days and be extended up to at least 120 days.
These are further defined in Article 2 of the Protocol, according to which the
participating Member States undertake to
(a) cooperate, as from the entry into force of the Treaty of Lisbon, with a view to
achieving approved objectives concerning the level of investment expenditure on
defence equipment, and regularly review these objectives, in the light of the security environment and of the Unions international responsibilities;
(b) bring their defence apparatus into line with each other as far as possible, particularly by harmonising the identification of their military needs, by pooling and,
where appropriate, specialising their defence means and capabilities, and by encouraging cooperation in the fields of training and logistics;
(c) take concrete measures to enhance the availability, interoperability, flexibility
21
n5 above.
243
and deployability of their forces, in particular by identifying common objectives

regarding the commitment of forces, including possibly reviewing their national
decision-making procedures;
(d) work together to ensure that they take the necessary measures to make good,
including through multinational approaches, and without prejudice to undertakings
in this regard within the North Atlantic Treaty Organisation, the shortfalls perceived
in the framework of the Capability Development Mechanism;
(e) take part, where appropriate, in the development of major joint or European
equipment programmes in the framework of the European Defence Agency.
Member States fulfilling the criteria and having made the above commitments
may notify their intention to engage in permanent structured cooperation to the
Council and the High Representative. In accordance with Article 46(2) TEU,
the decision to establish such cooperation rests with the Council which is
expected to take it within three months following notification by a qualified
majority and following consultation with the High Representative. In terms of
its management, any decision and recommendation by the Council within the
context of permanent structured cooperation is taken unanimously on the basis
of the votes of the representatives of the participating Member States under
Article 46(6) TEU, unless otherwise provided for in Article 46 TEU.
There are certain principles which appear to govern the permanent structured cooperation mechanism. First, the principle of openness: provided that
the criteria and requirements set out in Article 46(1) TEU and Articles 1 and 2
of the Protocol are met, any Member State may participate in the mechanism,
either ab initio or at a later stage. In the latter case, following a notification
from the relevant State to the Council and the High Representative, the
Council will adopt the decision confirming the participation of the Member
State by a qualified majority of the participating Member States and after
consulting the latter.22
The second principle is that of continuity: every participating Member
State must fulfil the criteria and make the necessary commitments throughout
their participation. According to Article 46(4) TEU, if at any point they cease
to do so, the Council may suspend the participation of the Member State
concerned by a qualified majority of the members representing the participating Member States, with the exception of the Member State in question. In this
respect, Article 3 of the Protocol on Permanent Structured Cooperation
provides for the involvement of the European Defence Agency (EDA). In
accordance with this provision, the role of the EDA is broad: it contributes to
the regular assessment of participating Member States contributions regarding capabilities in general, and in particular those made in accordance with the
criteria to be established on the basis of, amongst others, Article 2 of the
22
Art. 46(3) subpara. 2 TEU.
244
Protocol. However, its impact is limited, at least as a matter of law: whilst it is

entrusted with reporting at least once a year, its assessment may serve as a
basis for Council recommendations and decisions adopted in accordance with
Article 46 of the Treaty on European Union.23
Third, the free will of the Member States is an essential precondition for
their participation: any participating Member State may withdraw by notifying its intention to do so to the Council. The latter has neither the power to veto
this nor the right to approve it. In accordance with Article 46(5) TEU, it will
merely take note that the Member State in question has ceased to participate.
Fourth, the definition of the capabilities criteria mentioned in Article 46(1)
TEU and set out in Article 2 of the Protocol on Permanent Structured
Cooperation is subject to a dynamic, incrementally evolving process. Both
Articles 2 and 3 of the Protocol suggest that they need to be further elaborated
on and defined in greater detail. On the one hand, it would be odd if things
were otherwise: requirements related to military capabilities may vary depending on factors as diverse as technical and operational needs, geopolitical environment, activities of international security organisations, financial
conditions, political commitment. After all, primary law is inherently unsuitable to define with any degree of precision such requirements. On the other
hand, the vagueness of the relevant provisions is such as to render their application entirely a matter to be determined on the basis of factors as inherently
indeterminate as political will, and as constantly evolving as economic realities.
The vagueness of the legal rules on permanent structured cooperation
reminds one of the vagueness of the Lisbon Treaty in general and Article 18
TEU in particular in relation to the function of the High Representative. It is
recalled that, from a legal point of view, these provisions are strikingly vague
as to the precise functions of the new post, and leave considerable scope for
overlaps and inter-institutional skirmishes. This is all the more so as the provisions about the function of the President of the European Council, that is,
another actor involved in the representation of the Union, are similarly
opaque.24 It may appear curious that the post of High Representative, which
purported to bring clarity and coherence in the EUs external policies, should
be defined in such unclear terms as to further feed the inter-institutional
tensions which have marred these policies. This also became apparent from
the tensions and inter-institutional haggling which characterised the establishment of the European External Action Service, as well as the complex arrange-
23
24
Art. 3 of Protocol on Permanent Structured Cooperation.

See Editorial, New Links in the Unions Institutional Chain, (2009) 35
ELRev 1, and Editorial, Mind the gap!, (2008) 45 CMLRev 317.
245
ments finally agreed upon.25 Similarly, viewed as a way of enabling the Union
to shape its security and defence identity more efficiently, one may have hoped
that the mechanism of permanent structured cooperation would have provided
a clearer yardstick as to quite how the Member States may rely upon it. In both
cases, the relevant legal provisions appear to acknowledge that their contribution to the Unions foreign affairs is merely to set out the broad parameters
within which the Member States and the Unions institutional actors may
determine how to proceed, at what pace and in which direction.
DEFENCE INDUSTRIES AND THE EVOLVING

UNDERSTANDINGS OF LAW
The application of the mechanism for permanent structured cooperation
outlined above relies upon the work of the European Defence Agency (EDA).
Originating in the identical provisions of the Constitutional Treaty, the Lisbon
Treaty is the first set of primary rules which provides for this organisation.
Article 42(3) subparagraph 2 TEU provides that EDA
shall identify operational requirements, shall promote measures to satisfy those
requirements, shall contribute to identifying and, where appropriate, implementing
any measure needed to strengthen the industrial and technological base of the
defence sector, shall participate in defining a European capabilities and armaments
policy, and shall assist the Council in evaluating the improvement of military capabilities.
However, in yet another illustration of how the law may follow and merely
formalise existing practice, the EDA had been established before the
Constitutional Treaty was even signed, in July 2004.26 The objective of the
Agency is to support the Council and the Member States in their effort to
improve the EUs defence capabilities in the field of crisis management and to
sustain the ESDP as it stands now and develops in the future without prejudice to either the competences of the EC or those of the Member States in
defence matters.27 The tasks carried out by EDA are in the areas of defence
capabilities development, armaments cooperation, European Defence
25
See Council Decision 2010/427/EU [2010] OJ L 201/30 which is accompanied by The Declaration by the High Representative on political accountability ([2010]
OJ C 210/1, and [2010] OJ C 217/12) setting out the practicalities of the interactions
between the High Representative and the European Parliament.
26
Joint Action 2004/551/CFSP [2004] OJ L245/17.
27
Ibid, Articles 2(1), 1(2) and 2(2).
246
Technological and Industrial Base and defence equipment market, and

research and technology.28
Whilst limited in scope, the work of EDA has not been without controversy.
The determination of its budget has been a constant source of disagreement:
the United Kingdom has refused to agree on a three-year budget, the absence
of which, according to other Member States, hampers EDAs work. In terms
of specific outcomes, it is worth referring to the adoption of a voluntary code
on defence procurement in November 2005. Having entered into force on 1
July 2006, this applies to contracts worth more than 1m which are subject to
the special clause of Article 346 TFEU.29 It sets out to establish a single online
portal, provided by the EDA, which would publicise procurement opportunities. It is based on objective award criteria based on the most economically
advantageous solution for the particular requirement. Furthermore, it provides
for debriefing, whereby all unsuccessful bidders who so request will be given
feedback after the contract is awarded. The regime provides for exceptions for
reasons of pressing operational urgency, follow-on work or supplementary
goods and services, and extraordinary and compelling reasons of national
security. This development brings focus on defence industries and the extent
to which their regulation may contribute to the CSDP. From a legal point of
view this is a most interesting issue, as it straddles law and politics, and has
been at the outer margins of European integration since the establishment of
the European Communities. It is this story that the remaining part of this chapter will tell.30
Primary Law and Defence Industries: Lingering Misconceptions
There is only one provision in the primary law of the EU which refers
28
For early assessments, see: A. Georgopoulos, The New European Defence
Agency: Major Development or Fig Leaf? (2005) 14 Public Procurement Law Review
103; P. Koutrakos, EU International Relations (Oxford: Hart Publishing 2006)
pp4735; M. Trybus, The New European Defence Agency: A Contribution to a
Common European Security and Defence Policy or a Challenge to the Community
acquis? (2006) 43 CMLRev 667.
29
Contracts which fall beyond the scope of Art 346 TFEU are covered by the
EC public procurement secondary legislation. According to Art 10 of Dir 2004/18/EC
on the coordination of procedures for the award of public works contracts, public
supply contracts and public service contracts [2004] OJ L134/114, [t]his Directive
shall apply to public contracts awarded by contracting authorities in the field of
defence, subject to Article [346 TFEU].
30
This section draws upon P. Koutrakos, The Application of EC Law to
Defence-related Industries: Changing Interpretations of Article 296 EC in C. Barnard
and O. Odudu (eds), The Outer Limits of European Union Law (Oxford: Hart
Publishing, 2009) 307.
247
expressly to the defence industries, namely Article 346 TFEU (ex Article 296
EC). It reads as follows:
1. The provisions of the Treaties shall not preclude the application of the following
rules:
(a) no Member State shall be obliged to supply information the disclosure of which
it considers contrary to the essential interests of its security;
(b) any Member State may take such measures as it considers necessary for the
protection of the essential interests of its security which are connected with the
production of or trade in arms, munitions and war material; such measures shall not
adversely affect the conditions of competition in the internal market regarding products which are not intended for specifically military purposes.
2. The Council may, acting unanimously on a proposal from the Commission, make
changes to the list, which it drew up on 15 April 1958, of the products to which the
provisions of paragraph 1(b) apply.
For a long time, this rather obscure provision of the Treaty was viewed as
rendering defence industries beyond the reach of EU law entirely. A broad
interpretation of its wording was used to substantiate this: on the one hand, the
scope of products which fell within the scope of Article 346 TFEU was viewed
as potentially unlimited; on the other hand, the circumstances under which
Member States could deviate from EU law were ignored or viewed as merely
indicative of the general status of the defence industries as directly linked to
national sovereignty. Therefore, the Member States were only too keen to
presume that measures regulating their defence industries would be beyond
the scope of EU law.31 This approach was tolerated by the EU institutions.32
It is interesting that the European Parliament confined itself to arguing regularly for the deletion of Article 346 TFEU,33 as if that would have been the
only way of preventing the erroneous and misguided interpretation of its
provision. The elusive character of the list mentioned in Article 346(2) TFEU
did not help either: it was only published in the Official Journal of the
European Union forty three years following its adoption in a response by the
Commission to a question by the European Parliament.34
31
In relation to public procurement, see COM (2004) 608 final Green Paper on
Defence Procurement, p6.
32
See P. Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional
Law (Oxford: Hart Publishing 2001), 17582.
33
See, for instance, Resolution A30260/92 on the Communitys role in the
supervision of arms exports and the armaments industry [1992] OJ C/284/138 at 142
and Resolution on the need for European controls on the export or transfer of arms
[1995] OJ C/43/89 at 90, Resolution A30260/92 [1992] OJ C/284/138 at 142.
34
Written Question E-1324/01 [2001] OJ C/364E/85. In the meantime, it had
only been published in academic analyses: see H. Wulf (ed), Arms Industry Limited
(Oxford, Oxford University Press, 1993) at 214.
248
However, a careful reading of Article 346 TFEU suggests that this approach
is misconceived. First, it is confined to the products which are described in the
list mentioned in Article 346(2) TFEU. Therefore, the reference to the
production of or trade in arms, munitions and war material was not envisaged
as an open-ended category of products. This suggests that at no point was it
envisaged that dual-use goods, that is products which may be of both civil and
military application, should be regulated by national measures deviating from
the entire body of EU law. Such an argument is supported by both the content
of the list mentioned in Article 346(2) TFEU and the reference to the effects
that such measures should not have on products which are not intended for
specifically military purposes in Article 346(1)(b) TFEU.
Second, measures adopted by a Member State under Article 346 TFEU are
not ipso facto justified; instead, the deviation from EU law which they entail
must be necessary for the protection of the essential interests of [national]
security. This is quite an emphatic statement that, rather than being merely a
public security clause, Article 346(1)(b) TFEU should be invoked only when
the protection of the core of national sovereignty is at stake.
Third, any reliance upon Article 346 TFEU should take into account the
effects which its deviation from EU law may have on the status and movement
of other products which fall beyond its rather narrow scope. In effect, this
provision suggests that national measures deviating from EU law as a whole
should not be adopted in a legal vacuum. Instead, Member States are under a
duty to consider the implications that such measures may have for the
common market.
Fourth, Article 348(1) TFEU provides for the involvement of the
Commission in cases where reliance upon Article 346 TFEU by a Member
State would lead to distortions of competition. This provision should be interpreted in the light of the duty of loyal cooperation enshrined in Article 4(3)
TEU (ex Article 10 EC). In other words, a Member State invoking Article 346
TFEU is under a legal duty to cooperate with the Commission in order to
adjust any ensuing distortions of competition to the EU law.
Finally, any deviation from EU law under Article 346 TFEU is subject to
the jurisdiction of the Court of Justice. The reference to the improper use of
the powers provided for in Article 346 in Article 348 second subparagraph
TFEU refers both to the substantive conditions which need to be met by a
Member State invoking Article 346 TFEU (namely those regarding its scope
of application, the assessment of essential interests of security) and to the
procedural ones (that is the duty to cooperate with the Commission provided
for in Article 348 first subparagraph TFEU).
It follows from the above that, according to a strict reading of Articles 346
TFEU and 348 TFEU, Member States may regulate their defence industries by
deviating from EU law only in so far as such a deviation is confined to a
249
specific class of products, is exercised in accordance with certain principles

and is subject to the jurisdiction of the Court of Justice to ascertain whether it
amounts to an abuse of power. This interpretation has gradually been accepted
as a matter of EU law. This has been due to a variety of factors, three of which
are particularly significant, namely the case-law of the Court of Justice, the
considerable structural and financial difficulties of the defence industries since
the 1990s and the emerging political climate in the EU which is marked by the
development of the Common Security and Defence Policy.
The Role of Europes Judges
In its first judgment on the applicability of ex Article 296 EC (new Article 346
TFEU), the Court of Justice left no doubt as to the strict interpretation of this
provision. In Case C-414/97 Commission v Spain,35 the Court dealt with
Spanish legislation exempting from VAT intra-Community imports and acquisitions of arms, munitions and equipment exclusively for military use. The
Sixth VAT Directive excluded aircraft and warships. The action against Spain
was brought because the relevant Spanish rules also covered an additional
range of defence products. The Spanish Government argued that a VAT
exemption for armaments constituted a necessary measure for the purposes of
guaranteeing the achievement of the essential objectives of its overall strategic plan and, in particular, to ensure the effectiveness of the Spanish armed
forces both in national defence and as part of NATO. In its judgment, the Court
ruled as follows:
Spain has not demonstrated that the exemptions provided for by the Spanish Law
are necessary for the protection of the essential interests of its security. It is clear
from the preamble to [the relevant national] Law that its principal objective is to
determine and allocate the financial resources for the reinforcement and modernization of the Spanish armed forces by laying the economic and financial basis for
its overall strategic plan. It follows that the VAT exemptions are not necessary in
order to achieve the objective of protecting the essential interests of the security of
the Kingdom of Spain.36
It then concluded that:

the imposition of VAT on imports and acquisitions of armaments would not compromise that objective since the income from payment of VAT on the transactions in
question would flow into the States coffers apart from a small percentage which
would be diverted to the Community as own resources.37
35
36
37
Case C-414/97 Commission v Spain [1999] ECR I-5585.

Ibid, para. 22.
Ibid, para. 23.
250
This suggests a robust approach which, rather than viewing Article 346 TFEU
as a carte blanche for Member States in the area of defence industries, requires
that the Member States substantiate how the deviation from EU law they deem
necessary meets the substantive conditions set out in primary law. This
approach was adopted four years later by the Court of First Instance38 and was
reaffirmed by the Court of Justice more recently in Case C-337/05
Commission v Italy39 and Case C-157/06 Commission v Italy.40 These cases
were about the purchase of Agusta helicopters for the use of police forces and
the national fire service by a negotiated procedure in contravention of EC
public procurement legislation which provided for a competitive tendering
procedure.41 This was a long-standing practice in Italy, and the Government
did not contest that the helicopters in question were clearly for civilian use,
and that their military use was only potential. Both cases are about the same
practice and raise the same issues. This analysis will focus on Case C-337/05
where the judgment was rendered by the Grand Chamber. The Court first reaffirmed the strict interpretation of the exceptional clauses set out in the
Treaties:
It cannot be inferred from those articles that the Treaty contains an inherent general
exception excluding all measures taken for reasons of public security from the
scope of Community law. The recognition of the existence of such an exception,
regardless of the specific requirements laid down by the Treaty, would be liable to
impair the binding nature of Community law and its uniform application.42
It then pointed out that

It is clear from the wording of that provision that the products in question must be
intended for specifically military purposes. It follows that the purchase of equipment, the use of which for military purposes is hardly certain, must necessarily
comply with the rules governing the award of public contracts. The supply of helicopters to military corps for the purpose of civilian use must comply with those
same rules.43
The argument of the Italian Government that a deviation from the EC public
procurement rules was necessary in order to protect the confidentiality of
38
39
40
Case T-26/01 Fiocchi [2003] ECR II-3951.

[2008] ECR I-2173.
[2008] ECR I-7313. This, along with Case C-337/05, are annotated in M.
Trybus, (2009) 46 CMLRev 973.
41
In particular, Articles 2(1)(b), 6 and 9 of Council Directive 93/36/EEC coordinating procedures for the award of public supply contracts [1993] OJ L 199/1.
42
n39 above, para. 43.
43
Ibid, para. 47.
251
information about the production of the purchased helicopters was dismissed

by the Court as disproportionate. It was pointed out that no reasons were
presented to justify why the confidentiality of the information communicated
for the production of the helicopters manufactured by Agusta would be less
well guaranteed were such production entrusted to other companies, in Italy or
in other Member States.44
The Court was no more sympathetic to the final arguments by the Italian
Government that, because of their technical specificity, the manufacture of the
helicopters in question could be entrusted only to Agusta and that this was
necessary to ensure the interoperability of its fleet of helicopters, in order,
particularly, to reduce the logistic, operational and pilot-training costs. It
responded as follows:
In this case, the Italian Republic has not discharged the burden of proof as regards
the reason for which only helicopters produced by Agusta would be endowed with
the requisite technical specificities. In addition, that Member State has confined
itself to pointing out the advantages of the interoperability of the helicopters used
by its various corps. It has not however demonstrated in what respect a change of
supplier would have constrained it to acquire material manufactured according to a
different technique likely to result in incompatibility or disproportionate technical
difficulties in operation and maintenance.45
The recent case-law of the Court of Justice makes it clear that reliance upon
the notion of necessity may not justify ipso facto any deviation from EU rules.
It is not only the subject-matter of these cases, which is an area long viewed
as within the twilight zone between EU law and national sovereignty, that
makes the above rulings noteworthy. It is also the rigour with which the Court
responded to the vague arguments put forward by the national governments.
Member States are required to explain what it is precisely which necessitates
a deviation from an EU rule.
However, it would be wrong to assume that the Court has expressed its
willingness to meddle with the substantive policy choices made by the
Member States in areas which are close to the core of national sovereignty.
Indeed, the above rulings should be viewed in their context. In the actions
against Italy, for instance, the defences put forward by the Italian Government
44
In Case C-157/06 Commission v Italy, the Court concluded that the mere fact
of stating that the supplies at issue are declared secret, that they are accompanied by
special security measures or that it is necessary to exclude them from the Community
rules in order to protect the essential interests of State security cannot suffice to prove
that the exceptional circumstances justifying the derogations provided for in Article
2(1)(b) of Directive 93/36 actually exist (para. 32).
45
n39 above, para. 59.
252
were staggering in their generality and the absence of any specific argument
whatever which would substantiate, even remotely, their decision.
Furthermore, the remoteness between the subject-matter of the action and the
scope of Article 346 TFEU was not contested even by the Italian Government.
After all, the helicopters were envisaged for the use of forces such as the Corps
of Fire Brigades, the Carabinieri, the Coastguard, the Guardia di Finanza
Revenue Guard Corps, the State Police and the Department of Civil Protection
in the Presidency of the Council of Ministers. Put differently, the cases on
which the Court has rendered the above rulings were about egregious violations of both the wording and spirit of Article 346 TFEU, violations which
exemplified the presumption, widely held by Member States, that primary law
granted them a carte blanche in the area. It by no means follows that the Court
would adopt an intrusive and activist approach once substantive policy choices
are explained properly in relation to the requirements set out in Article 346
TFEU.
Emerging Re-interpretations
In this context of gradual realisation of the constraints attached to primary law,
and the willingness of the EUs judiciary to enforce them, two factors raised
further interest in the status of defence industries. The first has been the development of the CSDP on which considerable time and energy has been spent
since 1998.46 For the purpose of this chapter, suffice it to recall the statement
in the European Security Strategy about the European Unions ambition for
[a]n active and capable European Union [which] would make an impact on a
global scale47 in terms of shar[ing] in the responsibility for global security.48 The second factor is the perilous state of the defence industries in the
Member States. Following the end of the Cold War they have been suffering
from considerable financial and structural problems, such as fragmentation
and divergence of capabilities, excess production capability in certain areas
and shortages in others, duplication, short production runs, reduced budgetary
resources, and failure to engage in increasingly costly research.49 This highly
46
47
See the chapter in this book by Webber.

A Secure Europe in a Better World: European Security Strategy (Brussels,
December 12, 2003), p14. See also Report on the Implementation of the European
Security Strategy (Brussels, 11 December 2008).
48
Ibid, 2.
49
See, amongst others, A. Georgopoulos, The European Armaments Policy: A
conditio sine qua non for the European Security and Defence Policy? in M. Trybus and
N. White (eds), European Security Law (Oxford, Oxford University Press, 2007) 198
at 2035.
253
fragmented state has been exacerbated by the financial crisis which has made
the most important military powers in the Union, namely the United Kingdom
and France, cut back on their military spending,50 and has forced the former
to focus almost exclusively on its needs in the war in Afghanistan.
In the light of the above legal, political and economic developments,
defence industries have been gradually brought to the centre of the attention
of both the Union and its Member States. It is in this context that considerable
developments have taken place under EU law. Two specific initiatives illustrate this: first, the Commissions statement that it intends strictly to enforce
the proper interpretation of ex Article 296 EC (Article 346 TFEU); second, a
host of legislative initiatives aiming to extend the application of EU law to
defence industries.
In December 2006, the European Commission put forward its view as to
the proper interpretation of ex Article 296 EC (Article 346 TFEU), and
expressed its intention to apply it rigorously by enforcement proceedings
before the Court of Justice.51 The aim of the document was to prevent possible misinterpretation and misuse of Article 296 EC in the field of defence
procurement and give contract awarding authorities some guidance for their
assessment whether the use of the exemption is justified.52 The Commission
draws upon the wording of what is now Article 346 TFEU53 and the case-law
of the EU courts and states that both the field of and the conditions of application of Article [346 TFEU] must be interpreted in a restrictive way. It
acknowledges the wide discretion granted to a Member State in order to determine whether its essential security interests ought to be protected by deviating
from EC law. However, this discretion is not unfettered. To that effect, it is
argued that any interests other than security ones, such as industrial or
economic, cannot justify recourse to Article 346 TFEU even if they are
connected with the production of and trade in arms, munitions and war material. In relation to the role of the Member States, the Commission states that
It is the Member States prerogative to define their essential security interests and
their duty to protect them. The concept of essential security interests gives them
flexibility in the choice of measure to protect those interests, but also a special
responsibility to respect their Treaty obligations and not to abuse this flexibility.54
50
51
See Financial Times, 15 March 2010, p7.

COM(2006) 779 fin Interpretative Communication on the application of Article
296 of the Treaty in the field of defence procurement (adopted on 7 December 2006).
52
Ibid, p3.
53
For instance, it points out that the reference to essential security interests
limits possible exemptions to procurements which are of the highest importance for
Member States military capabilities (ibid, p7).
54
Ibid.
254
What are the implications of this approach in the area which has given rise to
most of the cases before the Court, namely public procurement? According to
the Commission,
the only way for Member States to reconcile their prerogatives in the field of security with their Treaty obligations is to assess with great care for each procurement
contract whether an exemption from Community rules is justified or not. Such caseby-case assessment must be particularly rigorous at the borderline of Article 296 EC
where the use of the exemption may be controversial.55
In its initiative, the Commission makes a declaration of intent: national

measures governing the defence industries would no longer be viewed as
inherently above EU law, and any deviations from the Treaties would be
pursued before the Court of Justice. In terms of the substance of its construction of Article 346 TFEU, there is nothing in the Communication which is
revolutionary or which does not originate in the previous, albeit limited, caselaw or the wording of the Article. In declaring its intention to no longer tolerate violations of EU law based on an expansive interpretation of Article 346
TFEU, the Commission seeks to strike a balance between the leeway with
which national authorities are endowed when dealing with matters close to the
core of national sovereignty, and the requirements set out by EU law in order
to ensure that no abuse of this leeway occurs. In this context, it is interesting
that the Commission should also engage in adjusting the list mentioned in
Article 346(2) TFEU in a rather creative manner.56 More importantly, one of
the main tenets of the Communication is the acknowledgement by the
Commission of the prerogative of the Member States to define their essential
security interests. It is interesting, however, that it should shy away from
developing this point further and elaborating on its implications for judicial
review. Is the control which the Court may exercise on the substance of the
national policy choices not inherently limited (provided, that is, that such
choices do not constitute an abuse of the rights which are acknowledged in
Article 346 TFEU)?57 This is what Advocate General Jacobs had suggested in
another related context, that is the adoption of national measures deviating
55
56
Ibid, p8 (the emphasis in the original).

It is stated in the Communication that the list should be interpreted in a way
which recognises developments in technology since the list was drawn up and the
different practices now employed to procure such items, such as modern, capabilityfocused acquisition methods and the inclusion of contracts for related services and
works (ibid, p5).
57
See, for instance, the principles set out by the case-law on exports of dual-use
goods outlined above.
255
from EU law when purporting to protect the essential interests of a Member

State under Article 347 TFEU.58
Both the tenor and the substance of the Commissions document suggest
the proceduralisation of the ways in which Member States may exercise the
leeway granted under primary law in the area of defence industries. In terms
of the interpretation it sets out, it rather states what had clearly been the case
since the entry into force of the original Treaty. Therefore, the significance of
the document is that it reads like a declaration of intent, a statement of the
Commissions willingness to step into areas of high political sensitivity.59
The willingness of the Commission to enforce the proper interpretation of
Article 346 TFEU, thus bringing the defence industries closer to the scope of
the application of EU law, should be assessed in the light of the considerable
policy activity which the EU institutions have shown in the area. The
European Commission had advocated the use of EU law, along with other
instruments, for the regulation of the defence industries since the mid-1990s.
After a series of initiatives assessing the serious economic problems facing
such industries,60 and advocating the adoption of a wide range of measures,61
the Commission put forward its so-called defence package in December
2007,62 following which two specific measures have been adopted by the
Council, namely Directive 2009/43 on intra-EU transfers of defence products63 and Directive 2009/81 on public procurement in the fields of defence
and security.64 The main rationale of these measures is twofold: on the one
58
See Case C-120/96 Commission v Greece (re FYROM) where he argues that
[t]here is a paucity of judicially applicable criteria that would permit this Court, or any
other court, to determine whether serious international tension exists and whether such
tension constitutes a threat of war (para 50), and then he goes on to argue that
[b]ecause of differences of geography and history each of the Member States has its
own specific problems and preoccupations in the field of foreign and security policy.
Each Member State is better placed than the Community institutions or the other
Member States when it is a question of weighing up the dangers posed for it by the
conduct of a third State. Security is, moreover, a matter of perception rather than hard
fact. What one Member State perceives as an immediate threat to its external security
may strike another Member State as relatively harmless (para. 54).
59
It is also stated that in evaluating possible infringements, the Commission
will take into account the specific sensitivity of the defence sector (p9).
60
COM(96) 10 final The Challenges facing the European Defence-Related
Industry: A Contribution for Action at European Level (adopted on 24 January 1996).
61
COM(97) 583 fin Implementing European Union Strategy on Defence
Related Industries (adopted on 12 December 1987). See also COM(2003) 113 final
European Defence: Industrial and Market Issues. Towards an EU Defence Equipment
Policy (adopted on 11 March 2003).
62
See Editorial, The Commissions Defence Package, (2008) 33 ELRev 1.
63
[2009] OJ L 146/1.
64
[2009] OJ L 216/76.
256
hand, it is economic, that is to bring the benefits of the internal market to this
area which has been untouched by EU law; on the other hand, it is pragmatic,
in so far as it recognises the special features of the defence industries. The
latter are not only political, as they relate to the duty and the ability of a State
to protect its realm, but also economic, in so far as they relate to the special
conditions which prevail in the manufacture of and trade in defence-related
products. This is what Directive 2009/81 refers to as the specificity of the
defence and security sector.65
CONCLUSION
This chapter has focused on the multifarious functions of legal rules in the area
of the Unions security and defence policy. They may set out a political aspiration, as the mutual assistance clause does; they may set out a broad framework within which the Member States may decide how to act, as the
provisions on the permanent structured cooperation do; and even in cases
where they are clear as to their application, they may be ignored for a long
time until a combination of political, economic and legal developments
accepts their proper interpretation, as is the case with Article 346 TFEU.
For all their differing implications, these functions have something in
common: they illustrate the limits of legal rules in this area.66 In a Report by
the International Institute for Strategic Studies drawn up in 2008, it is pointed
out that almost everything about defence in Europe remains resolutely
national.67 This conclusion suggests not only the link between this area and
the core of national sovereignty, but also the practical and economic realities
of defence. For instance, as the United Kingdom is one of the few major EU
military powers, if the current Coalition Government followed up on the
Conservative Parys earlier pledge and withdrew the UK from the EDA,68 the
significance of the work of that organisation would inevitably be reduced.
Similar considerations apply to the usefulness of the provisions on the permanent structured cooperation.
The inherently limited function of legal rules in the area of security and
defence policy is illustrated not only in the context of specific institutional
65
66
Ibid, para. 40 of the preamble.

See, more generally, P. Koutrakos, Primary Law and Policy in EU External
Relations: Moving Away from the Big Picture?, (2008) 33 ELRev 666.
67
European Military Capabilities: Building Armed Forces for Modern
Operations (London: IISS, 2008) 149.
68
Shadow Foreign Secretary of the Conservative Party, William Hague, made
this pledge in an interview with the Financial Times (9 March 2010).
257
innovations and mechanisms. Take, for instance, the general duty imposed on
Member States under Article 24(3) TEU. This reads as follows: The Member
States shall support the Unions external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and shall comply with the
Unions action in this area. This provision suggests a twofold obligation: a
positive duty to take action which would be in accordance with the Unions
policy, and a negative duty not to engage in a behaviour which would run
counter to the Unions action. In its second subparagraph, Article 24(3) TEU
deals not with the definition of the term solidarity, but rather its development: The Member States shall work together to enhance and develop their
mutual political solidarity. They shall refrain from any action which is
contrary to the interests of the Union or likely to impair its effectiveness as a
cohesive force in international relations.
The reference to political solidarity is noteworthy, for it raises the question whether its definition is as inherently indeterminate as it may appear at
first sight. Compliance with the above principles is to be ensured by the
High Representative and the Council. It is difficult to envisage how political solidarity may be developed pursuant to a legally binding obligation
imposed by primary law. Involving a community of states each of which
may have differing foreign policy interests but all of which are committed
to respecting these interests and finding common ground, political solidarity may not emerge from the application of legal obligations. Instead, it is
the outcome of a constantly evolving process of understanding and osmosis
which is brought about gradually, incrementally and often subconsciously.
What legal rules and procedures, such as those set out in Title V TEU, may
do is to contribute to a culture of cooperation amongst Member States
which is central to the development of political solidarity. However, they
may not give rise to it on the basis of legal duties imposed on Member
States.
The above is by no means to suggest the irrelevance of legal rules in this
area. Instead, it is to acknowledge that they constitute a living phenomenon
which should be understood as part of a gradually shifting, constantly evolving, multi-faceted legal and political space. This understanding of their function is particularly relevant in the light of the current existential crisis which
the Union faces. In the wake of the international financial crisis, the Union has
been going through its very own economic crisis in which it grapples with the
distinct possibility of sovereign default, and the threat this poses for the euro.
Having been forced to take extraordinary measures aiming to sustain its
economic position and to rethink the model of its economic governance, the
Unions leaders focus on what they consider the very identity and future of
Europe. The German Chancellor, Angela Merkel, for instance, convinced the
Bundestag to approve German financial aid to Greece arguing that that was
258
necessary for the future of Europe,69 the same argument used by the
Portuguese Prime Minister, Jos Scrates, to justify the introduction of austerity measures by his government;70 and the Commission President, Jos
Barroso made the same point when he implored Chancellor Merkel to agree to
the extraordinary process of setting up a permanent protective financial mechanism.
In this vein, it is noteworthy that the economic might of the Union was the
starting point for the development of its international ambitions.71 Therefore,
not only is it not surprising that the financial crisis has taken existential dimensions, but it is also bound to have serious repercussions for the Unions posture
in the world. As the Unions success depends on various diverse factors
political will and ingenuity, economic developments and the markets
response, to name but a few its management is bound to test the limits and
effectiveness of legal rules and procedures. The area of security and defence
would not be immune from these developments, as its effectiveness presupposes political will, economic investment, and outward-looking ambition
stemming from internal stability and no legal rules may substitute for these.
69
70
71
Financial Times, 14 May 2010, p9.

Financial Times, 13 May 2010, p8.
For instance, the very first sentence of the European Security Strategy reads
as follows: Europe has never been so prosperous, so secure nor so free.
PART V
The European Union in international

organizations
9. The position of the European Union in

(other) international organizations:
confronting legal and political
approaches
Knud Erik Jrgensen and Ramses A. Wessel1
INTRODUCTION
The European Union is increasingly engaged in multilateral diplomacy and
continuously stresses its ambitions in relation to effective multilateralism.2
Apart from its participation in international regimes in various policy fields,3
the institutionalization of the role of the EU in the world is reflected in its
position in a number of other international organizations.4 Whereas the legal
and political dimensions of the EUs external relations in general have been
given much attention in academic writings, this is less true for the position of
the EU in formal international institutions. Yet, it is at these fora that a structural role of the EU in global governance becomes most visible. It is this role
that has become more interesting now that it is clear that many EU (and
1
2
The authors thank Ms Mila Aleksic for her research assistance.

See for instance the Report on the Implementation of the European Security
Strategy: Providing Security in a Changing World, Council of the EU, 11 December
2008, p. 1: At a global level, Europe must lead a renewal of the multilateral order;
and the European Security Strategy of 12 December 2003, p. 1: In a world of global
threats, global markets and global media, our security and prosperity increasingly
depend on an effective multilateral system. The development of a stronger international
society, well functioning international institutions and a rule-based international order
is our objective.
3
For instance non-proliferation and export control regimes.
4
Whether the EU itself is an international organization is still open to debate.
For arguments pointing to an affirmative answer based on the Unions legal personality see Wessel, R.A., The Legal Status of the European Union, (1997) 2 European
Foreign Affairs Review 109; Wessel, R.A., Revisiting the International Legal Status of
the EU, (2000) 5 European Foreign Affairs Review 507.
261
262
national) rules find their origin in decision-making processes in other international organizations.5
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 European Community
and the European Union as actors on the international stage; since 1 December
2009 the European Union acts as the legal successor of the European
Community,6 while maintaining one of its original policy fields: the foreign,
security and defence policy. The EU has thus replaced the Community in international institutions. In addition, the Lisbon Treaty increased the number of
references in the new EU Treaty to the role of the Union in the world and to
its relationship with the United Nations.
Both the position of the EU in other international institutions and the different academic approaches to the study of the EUs engagement in this area form
the source of the questions raised by this contribution. Over the years the EU
has obtained a formal position in some international organizations, either as a
full member or as an observer. It is generally held that the participation in an
international organization relates to the participation in its organs; that is, the
right to attend the meetings, being elected for functions in the organ and exercising voting and speaking rights. In that sense the term position is related to
a formal influence on the output of the international organization: decisions
(often recommendations, on some occasions binding decisions) and conventions (international agreements prepared and adopted by an organ of an international organization).7 The Lisbon Treaty heralds an increase of the
engagement of the EU in other international institutions, including the future
membership of additional international organizations.8
Both lawyers and political scientists have shown an interest in the role of
the EU in other international institutions and fora. Their approaches, however,
seem to have been quite different, which may be a reason why combinations
of legal and political approaches in this field are scarce. Lawyers have a
tendency to focus on formal competences and have mainly restricted them-
5
See Follesdal, A., Wessel, R.A. and Wouters, J. (eds), Multilevel Regulation
and the EU: The Interplay between Global, European and National Normative
Processes (Leiden/ Boston: Martinus Nijhoff Publishers 2008).
6
See Article 1 Treaty on European Union: The Union shall be founded on the
present Treaty and on the Treaty on the Functioning of the European Union []. Those
two Treaties shall have the same legal value. The Union shall replace and succeed the
European Community.
7
Cf. Frid, R., The Relations between the EC and International Organizations
(The Hague: Kluwer Law International 1995).
8
See Article 6 TEU, which provides that the EU shall accede to the European
Convention for the Protection of Human Rights and Fundamental Freedoms, which in
the current situation calls for a membership of the Council of Europe.
The EU in (other) international organizations
263
selves to the external competences of the (former) European Community.9 At

the same time political analyses have focused on the EU and multilateralism
in a broader context, with a particular focus on the role of the Member
States.10 So far, the different approaches and main findings have not been
compared, which in our view would be a first step in a possible search for a
confrontation of research outcomes. We believe that such confrontation of
legal competences and political performance may offer new insights into the
(dis)advantages of a separate position of the EU in international organizations.
This contribution therefore aims to answer the questions of how lawyers and
political scientists study the position of the EU in other international institutions and to what extent legal competences related to the position of the EU in
another international institution have an impact on its political performance.
With the further development of the EUs external relations (for instance
reflected in the newly established EU External Action Service11), this
confrontation of legal and political findings may be helpful in understanding
the structural position and role of the EU in global governance.
The following section first of all aims to cover the main legal provisions in
relation to the position of the EU in international organizations. It thus reveals
the main questions raised by lawyers who study this part of EU external relations law. The third section gives an overview of the key perspectives offered
by political science on the position of the EU in international organizations
and of the questions studied by that discipline. As such, both sections address
the substantive issues related to the topic. They end with a summary of the
main findings, which are subsequently confronted in the fourth section. This
concluding section is also used to present some themes for a possible multidisciplinary research agenda in this area.
9
See for instance Frid, op. cit., p. 120; Sack, J., The European Communitys
Membership of International Organizations, (1995) 32 Common Market Law Review
1127.
10
See for instance Elgstrm, O. and Smith, M. (eds), The European Unions
Roles in International Politics: Concepts and Analysis (London: Routledge 2006),
Laatikainen, K. and Smith, K. (eds), The European Union at the United Nations:
Intersecting Multilateralisms (Basingstoke: Palgrave 2006).
11
See for instance Crowe, B., The European External Action Service: Roadmap
for Success (London, Chatham House 2008); and Vanhoonacker, S. and Reslow, N.,
The European External Action Service: Living Forwards by Understanding
Backwards, (2010) 15 European Foreign Affairs Review 1.
264
A LEGAL PERSPECTIVE ON THE POSITION OF THE EU

IN OTHER INTERNATIONAL ORGANIZATIONS
Treaty Competences Related to the Participation of the EU in
International Organizations
As indicated above, legal analyses in the area of the EUs external relations
show a strong focus on formal competences. Thus, studies related to the position of the EU in other international organizations mainly aim to investigate
on the basis of an analysis of Treaty provisions, international agreements and
decision-making procedures what the EU and its member states can or
should do. Quite often, case law is needed to interpret unclear or conflicting
rules and principles.12
For lawyers, the Treaties are the alpha and the omega: they started the
whole process of European integration and ultimately define its limits in terms
of competences. The Treaties are therefore also the starting point for an analysis of the EUs engagement in international institutions. The two new (postLisbon) EU Treaties the Treaty on European Union (TEU) and the Treaty on
the Functioning of the European Union (TFEU) deal with the position of the
EU in other international organizations in various ways. Generally, the possibility or need for the EU to occupy a separate position in another international
organization depends on two factors: first, the division of competences
between the EU and its Member States in the particular issue area; and,
second, the statute of the international organization. As only few international
organizations allow for other international organizations to become a full
member, one would assume the second factor in particular to stand in the way
of an extension of the Unions role based on the further development of its
external relations. At the same time, however, internal struggles between
Member States or between Member States and EU institutions may form an
obstacle to the accession of the EU to an international organization. Thus, even
in areas where the EU has extensive competences, the EU may be barred from
full participation in the global decision-making process (cf. the International
Maritime Organization (IMO), the International Civil Aviation Organization
(ICAO), the River Rhine Commissions, the International Energy Agency, the
executive board of the UN High Commissioner for Refugees (UNHCR)) or in
bodies under the UN Convention on the Law of the Sea (UNCLOS).13
12
An extensive analysis of external relations (case) law may be found in
Koutrakos, P., EU International Relations Law (Oxford: Hart Publishing 2006), and
Eeckhout, P., External Relations of the European Union: Legal and Constitutional
Foundations (Oxford: Oxford University Press 2005).
13
See for more complete surveys of the participation of the EU in international
265
Nevertheless, from a legal perspective, the need for a formal role of the EU in
other international organizations is obvious whenever the EU has a competence
related to the objectives and functions of the organization. This holds true in
particular for areas in which the EU enjoys an exclusive competence, but seems
equally valid when the competence is shared with the Member States. However,
despite an active role of the EU in international organizations in practice, one will
look in vain for an explicit legal competence in the treaties. The absence of a clear
and explicit competence means that the participation in (and the membership of)
international organizations is based on implied powers only, which find their
source in the general competences the Union enjoys in the different policy fields.
To take one example, the Unions membership of the Food and Agricultural
Organization (FAO) is based on Articles 43 TFEU (agriculture and fisheries), 207
TFEU (commercial policy) and 209 TFEU (development cooperation).14 What
comes closest to a competence-conferring provision is Article 211 TFEU: Within
their respective spheres of competence, the Union and the Member States shall
cooperate with third countries and with the competent international organisations. That this cooperation may also lead to the establishment of legal relationships can be derived from the provisions creating a competence for the Union
to conclude international agreements. Thus, Article 216(1) TFEU provides for
international agreements to be concluded with one or more third countries or
international organizations and Article 217 TFEU allows for association agreements to be concluded with both states and international organizations.15 Socalled constitutive agreements by which new international organizations are
created, or accession agreements to acquire membership of an international organization, are not excluded. In fact, the European Court of Justice established that
the European Communitys competences in the field of external relations
included the power to create new international organizations.16 Both the
organizations: Hoffmeister, F., Outsider or Frontrunner? Recent Developments under
International and European Law on the Status of the European Union in International
Organizations and Treaty Bodies, (2007) 44 Common Market Law Review 41; also
Hoffmeister, F. and Kuijper, P.J., The States of the European Union at the United
Nations: Institutional Ambiguities and Political Realities in Hoffmeister, F., Wouters,
J. and Ruys, T. (eds), The United Nations and the European Union: An Ever Stronger
Partnership (The Hague: T.M.C. Asser Press 2006) p. 9.
14
See in general on EUFAO relations: Pedersen, J.M., FAO_EU Cooperation:
An Ever Stronger Parnership, in Hoffmeister, Wouters and Ruys, op. cit., pp. 6391.
15
See for the procedure Arts. 218 and 219(3) TFEU.
16
Opinion 1/76 [1976] ECR 1977. The binding force of decisions of those organizations within the EU legal order raises a number of interesting legal question. See
on this issue for instance Martenczuk, B., Decisions of Bodies Established by
International Agreements and the Community Legal Order, in Kronenberger, V. (ed.),
The European Union and the International Legal Order (The Hague: T.M.C. Asser
Press 2001) p. 141.
266
European Economic Area (EEA) and the associations created by association

agreements serve as examples of international organizations created by (at that
time) the European Community.17
Apart from these more general indications of a competence to engage in
other international organizations, the Treaties explicitly refer to a number of
policy terrains or even specific international organizations. Article 37 TEU
allows for international agreements to be concluded with one or more states
or international organizations in the area of the common foreign and security
policy. Similar provision may be found in relation to environmental policy
(Art. 191 (3) TFEU), development cooperation (Art. 209(2) TFEU),18
economic, financial and technical cooperation (Art. 212(3) TFEU) and
humanitarian aid (Art. 214(4) TFEU). In the latter area, the Treaty refers to the
coordination of operations with international organizations and bodies, in
particular those forming part of the United Nations system (Art. 214(7)
TFEU). The United Nations (and its Charter) is also mentioned quite
frequently in relation to a number of other policy areas of the Union.19 More
generally, Art. 220(1) TFEU provides that the Union shall establish all appropriate forms of cooperation with the organs of the United Nations and its
specialized agencies, the Council of Europe, the Organization for Security and
Cooperation in Europe and the Organization for Economic Cooperation and
Development and that it shall also maintain such relations as are appropriate
with other international organizations. All in all, however, the competences of
the EU regarding its relationships with other international organizations are
fragmented and scattered all over the Treaties. Apart from the competences of
the EU itself, many of the provisions relate to cooperation or to the role of
Member States. Thus, the idea of fostering cooperation with third countries
and competent international organizations returns in the fields of education
and sport (Art. 165(3) TFEU), vocational training (Art. 166(3) TFEU), culture
17
Cf. Schermers, H.G. and Blokker, N.M., International Institutional Law
(Leiden: Martinus Nijhoff Publishers 2003), pp. 11379.
18
In relation to development cooperation a number of provisions have been
included to strengthen commitments in that area. Thus, Art. 208(2) TFEU provides:
The Union and the Member States shall comply with the commitments and take
account of the objectives they have approved in the context of the United Nations and
other competent international organisations. And 210(1) TFEU: In order to promote
the complementarity and efficiency of their action, the Union and the Member States
shall coordinate their policies on development cooperation and shall consult each other
on their aid programmes, including in international organisations and during international conferences. They may undertake joint action. Member States shall contribute if
necessary to the implementation of Union aid programmes.
19
See Arts. 3(5) TEU, 21(12) TEU, 34(2) TEU, 42(1 and 7) TEU, 208(2)
TFEU, 214(7) TFEU, and 220(1) TFEU.
267
(Art. 167(3) TFEU) and public health (Art. 168(3) TFEU). A similar promotion of cooperation with other international organizations is mentioned in relation to social policy (Art. 156 TFEU) and Union research, technological
development and demonstration (Art. 18(b) TFEU).
In addition, the Unions foreign and security policy includes a number of
rules on the way in which the EU wishes to present itself in international organizations. In line with her upgraded position,20 the Unions High
Representative for Foreign Affairs and Security Policy shall express the
Unions position in international organisations and at international conferences (Art. 27(2) TEU). She is also responsible for organizing the coordination of the actions by Member States in international organizations and at
international conferences (Art. 34(1) TEU).21 The need for coordination
between the Union and its Member States (and their diplomatic missions and
delegations) in international organizations arises also in the obligation for the
diplomatic missions of the Member States and the Union delegations to cooperate and to contribute to formulating and implementing a common approach
(Arts. 32 and 35 TEU). Interestingly enough, the Treaty for the first time also
mentions Union delegations in third countries and at international organizations which shall represent the Union (Art. 221(1) TFEU). However, Member
States seem to be somewhat anxious about the developments in this area. In a
special declaration to the Treaty (No. 13) they stated that: [] the creation of
the office of High Representative of the Union for Foreign Affairs and
Security Policy and the establishment of an External Action Service, do not
affect the responsibilities of the Member States, as they currently exist, for the
formulation and conduct of their foreign policy nor of their national representation in third countries and international organisations.
Apart from some references in relation to the European Central Bank and
the European Investment Bank,22 this completes the list of provisions related
20
See Blockmans, S.F. and Wessel, R.A., The European Union and Crisis
Management: Will the Lisbon Treaty Make the EU More Effective?, (2009) 14
Journal of Conflict and Security Law 265; also as CLEER Working Papers 2009/1. The
first person appointed to this job was Baroness Catherine Ashton.
21
Cf. also the obligations of Member States in Art. 34: 1. [] In international
organisations and at international conferences where not all the Member States participate, those which do take part shall uphold the Unions positions. 2. In accordance with
Article 24(3), Member States represented in international organisations or international
conferences where not all the Member States participate shall keep the other Member
States and the High Representative informed of any matter of common interest.
22
Cf. Protocol No. 4 (on the Statute of the European System of Central Banks
and of the European Central Bank), Arts. 5(1), 23 and 31(1); and Protocol 5 (on the
Statute of the European Investment Bank), Art. 14.
268
to the position and role of the Union in international organizations. However,

ever since the 1971 ERTA case, the European Court of Justice also acknowledged the treaty-making capacity of the Community in cases where this was
not explicitly provided for in the Treaty: Such authority arises not only from
an express conferment by the Treaty [] but may equally flow from other
provisions of the Treaty and from measures adopted, within the framework of
those provisions, by the Community institutions. In fact, regard must be had
to the whole scheme of the Treaty no less than to its substantive provisions.23
This means that international agreements, including the ones whereby the EU
becomes a member of another international organization,24 may also be based
on the external dimension of an internal competence.
In a legal approach the quest for competences is important, but the question
how and to what extent the EU makes use of these extensive competences is
also relevant and will be addressed next.
International Organizations in which the EU has a Legal Position
Part of the legal approach in this area is devoted to the way in which the EU
makes use of its external competences. Research reveals that the EU can have
a legal position in another international organization or other international
body either through full membership or through an observer status with a variety of legal rights and duties. Full membership is mainly found in areas where
the EU has extensive competences (such as trade, fisheries and largely harmonized dimensions of the internal market).
The EU is a full member of a limited number of international organizations
only, including the Food and Agricultural Organization (FAO), the World
Trade Organization (WTO), the European Bank for Reconstruction and
Development (EBRD), Eurocontrol, the Energy Commission, the Codex
Alimentarius Commission and the Hague Conference on Private International
23
ECJ, Case 22/70 Commission v. Council (ERTA) [1971] ECR 263, paras 1516.
Cf. also ECJ, Opinion 1/76 Draft Agreement establishing a European laying-up fund for
inland waterway vessels [1977] ECR 741, in which the Court argued that the external
power can be used even in the absence of the actual exercise of the internal competence.
See for the impact of this line of reasoning on subsequent case law and practice for example, Koutrakos (2006), op. cit., pp. 77134; Eeckhout (2005), op. cit., Chapter 2; and Ott,
A. and Wessel, R.A., The EUs External Relations Regime: Multilevel Complexity in an
Expanding Union, in Blockmans, S. and Lazowski, A. (eds), The European Union and
its Neighbours (The Hague: T.M.C. Asser Press 2006), pp. 1960.
24
This competence was explicitly acknowledged by the Court in Opinion 2/94
WTO [1994] ECR I-5267, in which the Court recognized the Community competence
to create the World Trade Organization. See Frid, op. cit., pp. 11932 and pp. 34559
as well as the references in the previous footnote.
269
Law. In addition it is a de facto member of the World Customs Organization

(WCO), and also its participation in the Organization for Economic
Cooperation and Development (OECD) comes quite close to full membership.25 Accession to the Organization on International Carriage by Rail (OTIF)
is pending.26 In these cases there is often a situation of so-called mixity,
based on the fact that many competences are shared between the EU and its
Member States.27 But, as in external relations law in general, the principle of
sincere cooperation (Art. 4(3) TEU28) often referred to as the duty of cooperation, may restrain Member States in their actions, irrespective of the
unclear practical implications of the principle in relation to the actions of the
EU and its Member States in other international organizations. As Eeckhout
holds: The [] case law on the duty of co-operation and the Communitys
experience with work in international organizations suggest that the principles effectiveness is limited if it is not fleshed out. There is an obvious case
for creating some EC (or EU) treaty language on this crucial principle for
mixed external action. There is also an obvious case for basic legal texts on
how to conduct co-operation in the framework of international organizations.29 As we have seen, the Lisbon Treaty did not repair this deficiency.
Observer status implies that the EU can attend meetings of a body or an
organization, but without voting rights. Furthermore, the presence of an
observer can be limited to formal meetings only, after all formal and informal
consultations have been conducted with members and relevant parties. In addition, formal interventions may only be possible at the end of the interventions
25
According to Art. 13 of the 1960 Paris Convention in conjunction with
Protocol 1, the Commission (by then representing the European Communities) shall
take part in the work of the OECD. In the view of the OECD itself, this participation
goes well beyond that of a mere observer, and in fact gives the Commission quasiMember status (www.oecd.org).
26
More extensively: Hoffmeister, op. cit.
27
Sack, op. cit., pp. 12323. See in general on mixity: Hillion, C. and
Koutrakos, P. (eds), Mixed Agreements Revisited: The EU and its Member States in the
World (Oxford: Hart Publishing 2010).
28
Art. 4(3) TEU: Pursuant to the principle of sincere cooperation, the Union
and the Member States shall, in full mutual respect, assist each other in carrying out
tasks which flow from the Treaties. The Member States shall take any appropriate
measure, general or particular, to ensure fulfilment of the obligations arising out of the
Treaties or resulting from the acts of the institutions of the Union. The Member States
shall facilitate the achievement of the Unions tasks and refrain from any measure
which could jeopardise the attainment of the Unions objectives.
29
See on the duty of cooperation Eeckhout, op. cit., p. 21415; Hillion, C.,
Mixity and Coherence in EU External Relations: The Significance of the Duty of
Cooperation, (2009) CLEER Working Papers, 2. That this principle is relevant as well
in relation to the membership of international organizations seems to follow from the
WTO Opinion (op. cit.), paras. 1069.
270
of formal participants, which may have an effect on the political weight of the
EU.30 In areas where the EU does have formal competences, but where the
statutes of the particular international organizations do not allow for EU
membership, this may lead to a complex form of EU involvement. A good
example is formed by the International Labour Organization (ILO). The 1919
ILO Constitution does not allow for the membership of international organizations. The existence of Community competences in the area of social policy
nevertheless called for participation of the Community in ILO Conferences.
The Community was officially granted an observer status in 1989.31 The
observer status allows the EU (represented by the Commission) to speak and
participate in ILO Conferences, to be present at the meeting of the Committees
of the Conference and to participate in discussions there. The status also
allows for presence at the ILO Governing Body, where the Commission may
participate in the Plenary as well as in the committees.32 However, it cannot
become a party to any of the ILO Conventions.33
The complex division of powers between the EU and its Member States in
the ILO was addressed by the Court in Opinion 2/91, where at that time in
relation to the European Community it held that its external competences
may, if necessary, be exercised through the medium of the Member States
acting jointly in the Communitys interest.34 Thus in this case the Member
States are used to act as agents of the European Union to allow the latter to
make use of its external competences in this field. Obviously, coordination
issues arise, although both the EU and its Member States increasingly see the
need of a joint approach.35
The extensive observer status enjoyed by the EU in the ILO is not unique
and can be found in many Specialised Agencies and programmes of the United
Nations, including the UNCTAD, UNEP, UNICEF, UNDP, UNHCR, WFP,
30
31
See Hoffmeister and Kuijper, op. cit.

See exchange of letters of 21 and 22 December 1989 between the European
Commission and the International Labour Organization, OJ 1989, C 24/8, renewed by
an exchange of letters of 14 May 2001, OJ 2001, C 165/23. Cf. also F. Hoffmeister, op.
cit., at 512.
32
See the ILC Standing Orders, Arts 14(9) and 56(7). Also Delarue, R.,
ILOEU Cooperation on Employment and Social Affairs, in Hoffmeister, Wouters
and Ruys (eds), op. cit., pp. 93115 at 102.
33
Cf. ECJ Opinion 2/91 Re Convention no. 170 of the ILO [1993] ECR I-1061,
para 37, where the ECJ held that the Community cannot, as international law stands at
present, itself conclude an ILO convention and must do so through the medium of the
Member States.
34
ECJ Opinion 2/91, para. 5.
35
Cf. Delarue, op. cit, who argues that coordination on ILO matters is slowly
gaining ground both in Brussels and in Geneva and the Community raises its profile in
ILO discussions on a political level.
271
UNRWA, HRC, UNESCO, WHO, ICAO and WIPO, as well as in the UNs
General Assembly and in ECOSOC. With regard to a number of international
organizations (including the ICAO, UNESCO, OECD, and the Council of
Europe) the arrangements have been referred to as full participant status,
indicating that the only element that separates the EU from membership is
related to the voting rights.36
The FAO and the WTO are the obvious examples of organizations in which
the EU participates as a full member. While as a rule EU membership is still
excluded both in the UN itself and in the Specialised Agencies,37 the
Community did join the FAO in 1991, after the provisions of the FAO
Constitution had been amended.38 From the outset, the division of competences was a difficult issue to handle and was to be based on a declaration of
competence that had to be submitted by the Community at the time of its application. In addition, EU competences need to be established before each FAO
meeting and for each item on the agenda. Without that statement, Member
States competences are presumed.39 In cases where the EU is entitled to vote,
its vote equals the number of votes of the Member States.40 The requirement
of constant statements of competences seems to form an obstacle to an efficient functioning of the EU in the FAO.41 In addition, the EU is excluded from
the organizational and budgetary affairs of the FAO. Thus, the EU is not eligible for election or designation to bodies with restricted membership, which
include the Constitutional, Legal, Financial and Planning Committees.42 The
actual and potential problems which this state of affairs raises will be
addressed below. Following up on its FAO membership, the Community
joined the Codex Alimentarius Commission (CAC) in 2003. The CAC was
established by the FAO and the WHO and provides almost equal voting and
participation rights to the EU as the FAO.43
36
37
38
Hoffmeister, op. cit., at 54.

See for the UN Art. 4(1) of the UN Charter.
Art. II FAO Constitution was modified to allow for the accession of regional
economic organizations. See also R. Frid (1993), The European Economic
Community: A Member of a Specialized Agency of the United Nations, 4, EJIL, 239.
39
Cf. CFAO, Art. II, para. 6.
40
CFAO, Art. II, para. 10.
41
See also Eeckout, op. cit., at 205.
42
CFAO, Art. II, para. 9. Cf. also Sack, op. cit., at 1245.
43
See on the role of the EU in the CAC also Pederson, op. cit. See in general on
bodies established by international organizations E. Chiti and R.A. Wessel (2010), The
Emergence of International Agencies in the Global Administrative Space, in White, N.
and Collins, R. (eds), International Organizations and the Idea of Autonomy (London:
Routledge, forthcoming).
272
The EUs membership of the WTO44 differs in the sense that the
Community was one of the founders of the WTO and a major partner in the
Uruguay Round that led to its establishment.45 No difference is made between
EU and state membership, although also here also voting rights may be used
either by the EU (in which case the EU vote has the weight of the number of
its Member States) or by the individual EU Member States. However, due to
the fact that voting rarely takes place in the WTO, the voting rules remain
rather theoretical.46 Nevertheless, competence problems remain a source for a
complex participation of both the EU and its Member States in the WTO. In
Opinion 1/95 the Court held that the Community did not have an exclusive
competence to conclude agreements in the area of trade in services and trade
related aspects of intellectual property rights,47 two areas which in the form of
the Agreement on Trade in Services (GATS) and the Agreement on TradeRelated Aspects of Intellectual Property Rights (TRIPS) represent part of the
WTO system (next to the modified General Agreement on Tariffs and Trade
GATT). This has not, however, prevented the EU from playing an active role
also in relation to these areas. Billet pointed to two reasons for an active role
of the Commission even in cases where competences are (mainly) in the hands
of the Member States: first, the strongly institutionalized setting of the WTO,
in particular in relation to the system of dispute settlement, strengthens the
position of the Commission both internally vis--vis the member States as
well as internationally; second, the EUs own decision-making procedure
(already implying a strong role for the Commission) as well as the
Commissions expertise in the area.48
The participation of the EU in international organizations reflects the flexibility of the EUs external relations regime. As legal competences are divided
between the Union and its Member States the actual use of these competences
depends to a large extent on the possibilities offered by the organization.
44
See Art. XI, para. 1 of the 1994 Marrakesh Agreement by which the WTO was
created.
45
46
47
Eeckhout, op. cit., at 205.

Ibid.
ECJ, Opinion 1/94 WTO [1994] ECR I-5267. See for an extensive analysis for
example, Frid, op. cit, pp. 11932 and 34559; Bourgeois, J.H.J., The EC in the WTO
and Advisory Opinion 1/94: An Echternach Procession, (1996) 36 Common Market
Law Review 763; Billet, S., From GATT to WTO: Internal Struggle for External
Competences in the EU, (2006) 44 Journal of Common Market Studies 899.
48
Billet, op. cit., at 9015.
273
Main Findings offered by the Legal Perspective

The legal approach reveals a strong focus on competences. The main findings
are therefore related to what the EU can do, how it can do this (and has done
it) and what the division of competences is in relation to its Member States. In
that respect, it can be concluded that the Treaties do allow for the EU to be
engaged in international institutions and even to become a full member of
other international organizations. The EU makes full use of its possibilities,
but is often hampered by either the rules of the international organization or
reluctance by its own Member States to allow the EU to act on their behalf.
Answers to questions are sought by studying and interpreting both Treaty
provisions and decisions and by analysing case law of the European Court of
Justice. The result of the legal approach is that we know to what extent the EU
is (legally) allowed to be engaged in international institutions. This is not to
say that law has nothing more to offer. On a day-to-day basis the legal services
of the Council and the Commission answer legal questions which also relate
to the existence of a legal basis for external actions of the EU, the conclusion
of international agreements with other international organizations or third
states or the division of competences with the Member States. With the
increasing international role of the Union, the question of which rules of international law are applicable, both in relation to external actions and within the
EUs own legal order, has also gained more attention. Thus, general international rules on the responsibility of international organizations or on the division of international responsibility between the EU and its Member States
become increasingly relevant. Internally, this may reveal possibilities for the
EU to oblige its Member States to keep its international commitments.49
Irrespective of its valuable contribution to the visibility of the institutional
legal framework which defines the EUs role in other international organizations, the limitations of the legal approach are obvious. It has no answer to the
question why the EU would opt to use a certain competence, or why Member
States are reluctant to hand over powers. These are questions that are raised by
political scientists in particular.
49
Sack, op. cit., at 12356.
274
ANALYSING THE POLITICS OF EU ENGAGEMENT IN

INTERNATIONAL ORGANIZATIONS
Key Distinctions
Unlike the legal approach, the political approach does not exist. Research on
the politics of the EUs engagement in international organizations is characterized by the cultivation of several avenues of inquiry. Significantly, the
approaches share a relatively broad understanding of the EU, consisting of
both the EU in a narrow sense (one or more EU institutions) and the collective
of EU Member States, including the complex interplay between the two levels
of political authority and governance. In order to briefly review this research,
we use two foundational analytical distinctions: we make a distinction
between research characterized by implicit and by explicit theoretical reflection, respectively. The former approach implicit theoretical assumptions
characterizes many policy studies. Concerning theoretically explicit
approaches, we make a distinction between material-functionalist and
cultural-sociological approaches.50 In other words, research on the politics of
the EUs engagement with international organizations is clustered around
three major perspectives, representing different theoretical assumptions and
different research interests. In the following, we briefly summarize each of
these perspectives and their main findings regarding both the nature of the EU
and the relationship between the EU and international organizations.
It should be emphasized from the very beginning that the topic the EU
and/in international organizations short-circuits several standard political
science conceptions. Thus, while some analysts regard the EU as an international organization itself, other analysts consider this status a feature of the
past and therefore explore the degree to which the EU has developed genuine
policies towards international organizations or the possible impact the EU
might have on these institutions. This analytical short-circuit might reflect the
bifurcated politics of the issue under investigation. Indeed, the EU seems to
enjoy a split personality or identity: is the EU a (European) Union of States in
international organizations or do Member States give priority to the joy flowing from the power, pride and prestige of individual membership of international organizations.
50
March, J.G. and Olsen, J.P., Rediscovering Institutions: The Organizational
Basis of Politics (New York: Free Press 1989). See also Barnett, M. and Finnemore,
M., Rules for the World: International Organizations in Global Politics (Ithaca:
Cornell University Press 2004).
275
Different Political Perspectives

Policy studies perspectives
The policy studies approach is available for analysts who do not have an interest in how the EU is formally or informally represented in international organizations, but do have an interest in the policies the EU is pursuing and in
policy-making processes.51 Policy studies are often less theory informed and
more ad hoc explanation oriented. A certain over-emphasis on current affairs
tends to characterize this type of studies, implying that contemporary policies
are given priority over historical cases or long term processes and trends.
However, a research interest in policy can be handled in both descriptive and
analytical fashions. When opting for the former, policies or their changing
characteristics are simply described without much further ado. When analysts
are more ambitious, explanations whether interpretive, normative or causal
enter the picture. When they explain policy, analysts point at various
explanatory factors, such as interests or identity, or they apply the cascading
argument that identity explains interests, which in turn explain policy.52 Some
studies are informed by the generic new institutionalist argument: institutions
matter! As law is an integral part of institutions, this is one of the nodal points
where law and politics are closely intertwined. The ways in which institutions
(and thus law) matter vary according to the specific form of new institutionalism, whether rational, historical or sociological.
Finally, it should be emphasized that policy studies can be different from
studies of decision-making processes, a distinction which is important in order
to understand the different logics of law and politics. While law might play a
part in the allocation of decision-making roles, it is presumably less directly
important in policy-making processes. By contrast, the origin of policies might
be found in EU member states, in EU institutions (whether the Commission,
Council Secretariat or Council Presidency), or in international organizations
downloading policies to the European level.53
51
Ortega, M. (ed.), The European Union and the United Nations: Partners in
Effective Multilateralism, (2005) Chaillot Paper, 78; Biscop, S., The European
Security Strategy: A Global Agenda for Positive Power (Aldershot: Ashgate 2005).
52
See for example, Katzenstein, P. (ed.), The Culture of National Security:
Norms and Identity in World Politics, (Ithaca: Cornell University Press 1996). For an
application of the framework within the field reviewed here, see Jrgensen, K.E. and
Laatikainen, K., The EU at the UN, paper presented at the Second ECPR PanEuropean Conference on EU Politics, Bologna in 2004.
53
Fernandz, O.C. and Jrgensen, K.E. (eds), The Influence of International
Institutions on the European Union (forthcoming).
276
Material-functionalist perspectives
This grouping of perspectives comprises four rather different materialist-functionalist perspectives. First, according to analysts applying balance of power
approaches, the EU is a mere international organization and thus does not hold
anything but false promises.54
International organizations are assumed to reflect the (changing) balance of
power or experience institutional decay. In the latter case they become empty
organizational shells, having the fate of the League of Nations during the 1930s
or the Western European Union 19541984. In the former case, institutions
reflect and serve instrumentally the interests of powerful members. As regards
the EU, the general claim is that the EU is not an international actor and certainly
not a constitutive unit of the international system. What appears to be EU policy
is really just a coincidental consensus of the policies of larger member states. In
this perspective, it is not surprising that the EU did not have an ESDP until 1998,
that is until the UK government redefined British interests and joined the
German and French governments in the shared understanding that developing an
ESDP might be useful.55 It is equally unsurprising that the EU-3 grouping
prefers to engage in exclusive diplomatic interaction with Iran and only uses the
EU for the provision of diplomatic carrots and to amplify the policy of the EU3. Finally, it is not surprising that the EU has experienced severe problems
towards international organizations, because especially the larger EU member
states enjoy their individual membership and only use the EU channel as a
potential and sometimes convenient add-on mechanism.
The second approach, neoliberal institutionalism, shares much of the argument just described: international organizations serve functional needs and
reflect state preferences. However, analysts of this breed nonetheless conclude
that international institutions do matter. They make a difference because they
reduce problems of collective action, contribute to limit transaction costs and,
generally, contribute to institutionalizing world politics. In this perspective,
the EU is part of a general trend towards an increasingly institutionalized
world, yet the fate of this trend depends crucially on state strategies.56
54
Mearsheimer, J.J., The False Promise of International Institutions, (1995) 19
International Security, 5.
55
Posen, B., European Union Security and Defense Policy: Response to
Unipolarity?, (2006) 15 Security Studies 149. Hyde-Price, A., European Security in
the Twenty-First Century: The Challenge of Multipolarity (London: Routledge 2007).
56
Keohane, R.O., International Institutions and State Power: Essays in
International Relations Theory (Boulder, San Francisco and London: Westview Press
1989). Keohane, R.O., Nye, J. and Hoffmann, S., After the Cold War: International
Institutions and State Strategies in Europe, 19891991, (Cambridge, MA.: Harvard
University Press 1993).
277
The third approach within the material-functionalist grouping, bureaucratic

politics, is usually more material than functional. The general idea is that
policy is the outcome of bureaucratic in-fights and that policy therefore is
determined by the winner of such conflicts or reflects some messy compromise between different bureaucratic interests. In a world of hundreds of international organizations there are perpetual coordination problems between
different organizations with overlapping functions and usually resources are
scarce. Analysts emphasizing cooperative features would normally opt for an
inter-organizational approach, describing the evolving networks of organizations engaged in knitting together political and bureaucratic ends and means
within specific issue areas. Thus, the EU and the UN engage in jointly updating doctrines of peacekeeping.57 The EU and NATO define potential mission
overlap and identify ways in which the military forces of states might be
shared.58 Other analysts emphasize features of conflict, for example competition for budgets, attention of Member States and demands of military
missions. They note how the EU has gradually drained the Council of Europe
and the OSCE for missions, the EFTA for members and WHO-Europe for a
raison dtre. Moreover, they analyse factors causing potential conflicts
among international organizations, for instance the parallel development of
crisis management capabilities in the EU and NATO.59
Finally, principalagent model analysts take their point of departure in the
formal settings and then prioritize formal relations between principals (usually
Member States) and agents (usually EU institutions).60 According to this
approach, the EU is analytically allowed to be an actor, cultivating its own
conceptions of means and ends in world politics and pursuing its own interests.
57
See Kuehne, W., Peace Operations and Peacebuilding in the Transatlantic
Dialogue, (2009) ZIF Analysis 08/09.
58
Varwick, J. and Koops, J., The European Union and NATO: Shrewd interorganizationalism in the making?, in Jrgensen, K.E. (ed.), The European Union and
International Organizations (London and New York: Routledge 2009), pp. 10130.
59
Biermann, R., Towards a Theory of Inter-organizational Networking: The
Euro-Atlantic Security Institutions Interacting, (2007) 3 The Review of International
Organizations 151; Guigner, S., The EUs role(s) in European Public Health: The
Interdependence of Roles Within a Saturated Space of International Organizations, in
Elgstrm, O. and Smith, M. (eds), The European Unions Roles in International
Politics: Concepts and Analysis (London: Routledge 2006); van Ham, P., EUOSCE
relations: Partners or Rivals in Security? in Jrgensen, K.E. (ed.), The European Union
and International Organizations (London: Routledge 2009).
60
For the general argument, see Hawkins, D.J., Lake, D.A., Nielson, D.L. and
Tierney, M.J. (eds), Delegation and Agency in International Organizations
(Cambridge: Cambridge University Press 2006). For an application of the approach in
studies of relations between the EU and international organizations, see special issue of
Journal of European Public Policy (forthcoming, 2011).
278
It is because of such actor-qualities that principals need to specify mandates

for delegation and establish mechanisms for monitoring their agents. The topic
of EU performance in international organizations implies that issues of collective principals, incomplete contracting and double delegation (to both the EU
and international organizations) characterize the field of study. In
principalagent models, the issue of stakeholders perceptions of the relevance
of EU institutions plays a particularly important role.
Cultural-sociological approaches
Cultural-sociological arguments emphasize the importance of habit, informal
norms and dysfunction, thereby raising some severe doubts about the value of
material-functionalist approaches. In the present context, we limit our review
to just four major approaches. The first, the bureaucratic culture approach,
draws on organizational theory and emphasizes the importance of bureaucratic
culture factors internal to the organization. This implies that causes of both
dysfunction and change are found within the organization in question. Michael
Barnett and Martha Finnemore argue that organizational success often is
deeply contested and they propose a so-called de-centric analysis, that is they
suggest that relevant stakeholders within and outside the organization are used
to inform our analysis of performance.61 Obviously, we find bureaucracies in
international organizations, but also in ministries of foreign affairs and in
major NGOs. Hence, if we relax the reified conception of states and ministries
as special sites, the inter-organizational model suggests that multilateral politics consists of encounters of different bureaucracies, an image that is far from
the traditional state-centric model that only to a limited degree allows other
bureaucracies to influence multilateral dynamics.62
The second approach, focusing on world culture, emphasizes how a world
environmental structure causes identity- and interest-formation processes
which in turn cause policy-making.63 Hence, it is a structural, causal approach.
Part of the environmental structure is constituted by multilateralism, that is, an
increasingly important institution of international society. Research on intersecting multilateralism is less structural, yet explores how different varieties
61
Barnett, M. and Finnemore, M., Rules for the World: International

Organizations in Global Politics (Ithaca: Cornell University Press 2004).
62
Jnsson, C., The Inter-organizational Approach, (1992) International Social
Science Journal 138; Koops, J.A., Towards Effective and Integrative InterOrganizationalism, in Brockmann, K., Hauck, H.B. and Reigeluth, S. (eds), From
Conflict to Regional Stability: Linking Security and Development (Berlin: German
Council on Foreign Relations 2008).
63
Katzenstein, P.J. (ed.), The Culture of National Security, Norms and Identity
in World Politics (New York: Columbia University Press 1996).
279
of multilateralism interact.64 The EUs aim to promote effective multilateralism is likely to encounter contending ideas about what counts as effective,
just as the emphasis on effective suggest that the EU does not support all
kinds of multilateral institutions. The keyword within this analytical orientation is clearly multilateralism, a notion that traditionally has been used to
designate international cooperation among three or more states.65 Others
employ a more demanding definition, for instance that the international cooperation in question should be guided by generalized principles and expectations about diffuse reciprocity.66 The notion of intersecting multilateralism
tells us that the EU itself is seen as an important example of multilateralism.
In other words, the idea is that the EU is built on a multilateral edifice, implying that multilateral principles define the working of EU institutions. This idea
corresponds to the reasoning of politicians and officials claiming that multilateralism defines part of the EUs genetic predispositions, that is, that the EU
is bound to promote (effective) multilateralism both at home and abroad. In
this context, abroad refers to the many international organizations, the United
Nations not least (and not only), constituting the international multilateral
system. Hence, abroad should not be seen as a geographical category as
many international organizations are based in Europe, for example in Geneva,
Vienna, Paris, Brussels and Rome. If we combine the two levels EU and
international we will be able to analyse the specific ways in which EU multilateralism intersects with different types of international multilateralism.
The second-image-reversed approach represents a third distinct
approach,67 focusing on how international organizations might have an
impact on EU institutions and policy-making processes. In other words, it is
a top-down approach, the opposite of second image approaches and therefore
taking off in the international realm and subsequently investigating flows of
influence and their impact on the EU. The approach has some similarity to
studies of how international organizations teach states about their interests
and studies of the increasing impact of major NGOs on the dynamics of world
politics. While a considerable share of contemporary research on the politics
64
Laatikainen, K.V. and Smith, K. (eds), The European Union at the United
Nations: Intersecting Multilateralisms (Basingstoke: Palgrave 2006).
65
Keohane, R.O., Multilateralism: An Agenda for Research, (1990) 45
International Journal 731.
66
Ruggie, J.G. (ed.), Multilateralism Matters: The Theory and Praxis of an
Institutional Form (New York: Columbia University Press 1993).
67
Gourevitch, P., The Second Image Reversed, (1978) 32 International
Organization 881. In research on the European Union, this approach has been
promoted under the heading of Europeanization, that is, the degree to which European
governance has an impact on member states institutions and policy-making
processes.
280
of EUinternational organizations relations focuses on EU actor characteristics, policies, institutional characteristics and aspirations, some studies take
the opposite avenue of inquiry. They take their point of departure in the observation that although so-called second images that is state characteristics
and behaviour having an impact on the nature of international relations
generally are important, there are also second image reversed dynamics that
are worth exploring.68 Basically, they apply this approach in research on relations between international organizations and the EU, asking questions about
the specific conditions under which the EU is likely to be influenced by international organizations, rather than having an impact on them. They point out
that in some policy fields the EU is a newcomer rather than a frontrunner. This
applies to the hard end of security and defence matters, in which NATO is the
experienced teacher and the EU a motivated (to a point) student. In the field
of international health, the WHO has been the experienced organization and
the EU has only for some years aimed at building a similar professional
competence.69 In general, analysts within this category of research on the politics of EUIO relations ask questions that are similar to Martha Finnemore
exploring how international organizations teach states about their interests.70
While Finnemore acknowledges the importance of formal arrangements, she
is keen to point out that informal arrangements should also belong to our
research agenda. Analysts within this tradition also ask questions that are similar to how some principalagent analysts approach the topic, strongly emphasizing the dimension of agency, that is, they allow agents to act like actors.71
In this fashion, they relax both principal and agent attributes and they upgrade
features that make agents independent-minded actors.
Because the Europeanization literature is characterized by a starting point
that is similar to the second-image-reversed dynamics the structural topdown pressure it is potentially interesting that Europeanization analysts draw
fundamentally different conclusions. One set of conclusions can be labelled
convergence because analysts expect that stimuli (structural pressures) will
determine increasingly identical responses (convergence). According to a
68
Ibid. See also Fernandz, O.C. and Jrgensen, K.E. (eds), The Influence of
International Institutions on the EU (forthcoming in 2011).
69
Guigner, S., The EUs Roles in European Public Health: The
Interdependence of Roles within a Saturated Space of International Organizations, in
Elgstrm, O. and Smith, M. (eds), The European Unions Roles in International
Politics (London: Routledge 2006).
70
Finnemore, M., Norms, Culture and World Politics: Insights from
Sociologys Institutionalism, (1996) 50 International Organization 325.
71
Hawkins, D.G., Lake, D.A., Nielson, D.L., and Tierney, M.J., Delegation and
Agency in International Organizations (Cambridge: Cambridge University Press
2006).
281
second set of conclusions, the expected outcome is not convergence but

diversity, that is, different actors experience a common stimulus, yet respond
differently. As usual when we confront a dilemma, three options are available:
the two representing the dilemma and a third, which is rejecting it, in the
specific case pointing out that the outcome might depend on a number of
different conditions. Hence, specification of conditions might represent a third
avenue of inquiry. In summary, this category of research is characterized by a
highly interesting and relevant research agenda, a number of single-study
beginnings, but is waiting for more comprehensive, comparative, focused and
structured contributions.
According to the fourth approach, the logic of bureaucratic politics should
not be defined exclusively in terms of budgets and personnel resources. The
collision of world views and norms is an equally important feature of bureaucratic politics. In the context of the break-up of former Yugoslavia, the UN
Secretary General Boutros Boutros-Ghali and EC representatives clashed
concerning the prime purpose of the UN: was it an institution for the Global
South or a global institution with responsibility for peace and security also in
wealthy Europe. Similarly, NATO and EU rapprochement was characterized
by clashes regarding security cultures, including issues of confidentiality.
Moreover, European Commission and OECD officials have proved to represent significantly different ideas of appropriate development strategies. We
can also observe that within foreign affairs ministries of Member States, officials cherishing autonomous and EU pooled sovereignty, respectively, clash as
to whether to be represented in international organizations independently or
via supervised (or not) EU delegation. Finally, officials in the UNHCR do not
necessarily share the securitization-of-immigration processes that for some
time have preoccupied EU officials.72 In short, different mindsets, worldviews, self-images, and values trigger an ideational version of bureaucratic
politics.
Main Findings offered by Political Science Perspectives
In the previous sections we have seen that research on the politics of the EUs
engagement in international organizations is characterized by considerable
diversity in terms of approaches. In this section we will focus on the outcome
of political science approaches, specifically five main findings. First, the very
dynamic institutional developments that have characterized the EU since the
mid-1980s, not least the process of continuous treaty-reform, have redefined
72
Van Munster, R., Securitizing Immigration: The Politics of Risk in the EU
(Basingstoke: Palgrave 2009).
282
EU multilateralism. In turn, this ever-changing nature of the EU has had a

significant impact on the EUs relations with international organizations.
Thus, rather than describing the specifics of each successive treaty-reform,
conclusions are synthesized into more general features and analysts subsequently explore the possible effects of these features in relation to international
organizations. The EU has consequently become less of an international organization itself, aiming instead to become an actor state-like in international
organizations. As such a status clearly collides with traditional European
conceptions of statehood in general and European states membership of international organizations in particular, there have been very difficult waters to
navigate, characterized by several Scylla and Charybdis dilemmas.
Second, research is frequently based on the implicit or explicit assumption
that if only the EU could enjoy formal representation or be speaking with one
voice, its performance in a given international organization would be significantly improved. However, studies of the EUs membership of the FAO and
the WTO reach markedly different conclusions, specifically that EU performance within the WTO is significantly better than in the FAO, and studies of
the EUs formal membership of the Codex Alimentarius Commission
conclude that performance is somewhere in between.73 Studies of the EU
speaking with one voice in the WTO and the UN also reach diverse conclusions. Whereas single (re-)presentation works very well in the WTO, the same
cannot be said about the UN.74 While the ability to reach joint positions is
remarkably high, the EU frequently encounters fierce opposition to its political objectives in the UNHRC and in other UN fora. Moreover, joint EU statements are typically characterized by the opaque characteristics that can only
emerge from long consensus-seeking sessions.75 Often, these statements do
not enjoy the persuasive character that is a precondition for leadership. These
73
Studlar, D.T., Tobacco Control Policy Instruments in a Shrinking World:

How Much Policy Learning?, (2006) 29 International Journal of Public
Administration, 367.
74
Rasch, M.B. The European Union at the United Nations: The Functioning
and Coherence of EU External Representation in a State-centric Environment
(Leiden/Boston: Martinus Nijhoff Publishers 2008). In this empirical study on the role
of the EU in the UN in the area of foreign and security policy Rasch concludes that
national interests are the main driving forces behind the policies of the EU countries
and the processes within the CFSP at the UN. In New York, the CFSP-regime is simply
an instrument for intergovernmental dealings between the EU MS, aimed at pursuing
the individual national positions. There is little room for a single European voice on the
East River, i.e. for a truly common foreign policy (p. 301).
75
Smith, K.E., Speaking with One Voice? European Union Co-ordination on
Human Rights Issues at the United Nations, (2006) 44 Journal of Common Market
Studies 113.
283
findings suggest that formal membership and speaking with one voice
should not be seen as sufficient conditions for successful performance.
Third, given the prime objectives and professional-administrative competences of the EU, one would expect the EU to be particularly influential in
international organizations of a political-economic nature and less influential
in organizations within the defence and security field. However, despite
frequent statements about aspirations to play a more significant role within the
international financial organizations, that is the IMF and the World Bank, studies consistently reach the conclusion that the EU plays a rather limited role
within these organizations.76 It seem that Members States do not find the EUs
organizational performance relevant for these policy fields and not even the
global financial crisis has been able to change this. By contrast, studies show
that the EU plays an unexpectedly significant role within security organizations and regimes such as OSCE, non-proliferation, and export control
regimes as well as within security fields such as crisis management.77
Fourth, political research shows that while a high degree of coordination
should lead to higher impact within a given policy field, this is not necessarily the case for the EU. Within UN General Assembly committees, the ILO and
the Non-Proliferation Treaty review conferences, coordination is usually high,
yet impact varies a great deal. Within majoritarian institutions such as UNGA
committees, the EU has proved quite capable of coordinating national positions, yet nonetheless remains and is bound to be in a minority position.78
Given that the EU has been a co-designer of the UNHRC, the argument that
we witness a newcomer to a well-established institutional context does not
apply. Some scholars argue that it is precisely coordination that triggers unintended opposition to EU positions.79 Moreover, when coordination processes
76
Bin i Smaghi, L., A Single EU Seat in the IMF, (2004) 42 Journal of
Common Market Studies 229; Baroncelli, E., The EU at the World Bank: Institutional
and Policy Effectiveness, paper presented at the ECPR General Conference, Potsdam,
September 2009.
77
Van Ham, P., EUOSCE Relations: Partners or Rivals in Security?, in
Jrgensen, K.E. (ed.), The European Union and International Organizations (London:
Routledge 2009); Portela, C., The EU and the NPT: Testing the New European Nonproliferation Strategy, (2004) 78 Disarmament Diplomacy July/August, available at
<http://www.acronym.org.uk>; Gross, E. and Juncos, A.E., EU Conflict Prevention and
Crisis Management Institutions, Policies and Roles (London: Routledge forthcoming).
78
Gowan, R. and Brandtner, F., A Global Force for Human Rights? An Audit of
European Power at the UN (London, European Council on Foreign Relations 2008).
79
Smith, K., Speaking with One Voice? European Union Coordination on
Human Rights Issues at the United Nations, (2006) 44 Journal of Common Market
Studies 113; Verlin Laatikainen, K. and Degrand-Guillaud, A., Two Logics, One
Treaty: The Lisbon Treaty and EU Foreign Policy in Brussels and at the United
Nations, paper presented at the ISA Annual Convention, New York, February 2009.
284
consume most of the energy of EU diplomats, little is left for outreach or

engagement in processes of persuasion that involve third parties. As regards
coordination within the ILO and NPT review conferences, the problem is
different, in concrete terms that especially two larger EU member states
France and the United Kingdom tend to forget common EU positions coordinated prior to meetings in the respective international institutions.80 It
follows that though the notion of international organizations suggests similarity, the fact is that these organizations are different, characterized by very
different objectives, governance structures and organizational cultures. Hence,
the options for the EUs performance in or impact on these organizations
depend not only on EU characteristics but also on the defining features of
these different international organizations. Some of the studies within this
category focus specifically on the notion of effective multilateralism, a
notion that can traced back to the EUs European Security Strategy, adopted in
2003. In the European Security Strategy, the EU declares that one of its main
strategic security objectives is the promotion of effective multilateralism, a
short-hand expression for contemporary efforts at reforming a number of
international organizations, making them more effective.
Fifth, political studies consistently conclude that both actor and venue characteristics are crucially important for the EUs performance in international
institutions. However, because international institutions are significantly
different in terms of membership, objectives, organizational cultures and
governance structures, actor and venue characteristics are important in different ways; this explains, in turn, why attempts at generalization almost always
fail.
While the five main findings neatly summarize contemporary research in
the field, they also demonstrate that more research remains to be done. Despite
a few early studies, research on the politics of the EUs engagement in international organizations is still a relatively new field of study. In order to consolidate findings, it is crucially important that issues regarding the competitive or
complementary nature of the different perspectives and approaches are
addressed. Moreover, continued conceptualization and theory-building,
theory-informed studies and adequate research designs will potentially
contribute to further consolidating the field.
80
Kissack, R., Pursuing Effective Multilateralism: The European Union,
International Organizations and the Politics of Decision-making (Basingstoke:
Palgrave forthcoming); Tertrais, B., The European Union and Nuclear Non-proliferation: Does Soft Power Work, (2006) 40 The Inernational Spectator, 45.
285
CONFRONTING RESEARCH ON LEGAL AND POLITICAL

DIMENSIONS OF THE EU AND/IN INTERNATIONAL
ORGANIZATIONS
In the previous sections, we have outlined how the topic of the EU and international institutions can be analysed on the basis of both legal and political
science perspectives. The dominant approach used in legal studies concerns
the division of competences between the EU and its member states. Most studies raise the question to what extent the EU is legally empowered to act within
an international organization. They do that by analysing the treaty provisions
and the case law of the European Court of Justice. In contrast the political
science perspectives, despite their differences, begin from a particular theoretical notion, which is then (sometimes) empirically tested.
One of the questions raised by this contribution has been to what extent
legal competences related to the position of the EU in another international
institution have an impact on its political performance. When confronting both
perspectives, one of the main conclusions could be that the strict legal analysis of competences on the basis of treaty provisions and case law may be
necessary for the legal discipline itself and, indeed, to establish the division of
legal competences between the EU and its Member States, but that there is no
direct correlation between these legal competences and the political performance of the EU. Accordingly, we cannot conclude that strengthening the
formal representation on the basis of treaty provisions or agreements with
other international organizations (for instance leading to full membership or
the possibility for the EU to speak with one voice) will significantly improve
the performance of the EU. Similarly, the (non-)existence of extensive external competences in a particular field (an obsessive focus in legal research)
does not tell us too much about the actual influence of the EU. The same holds
true for degrees of coordination: rules to enhance EU coordination may lead
to a higher impact within a given policy field, but that is not necessarily the
case. And, finally, actor and venue characteristics which are studied by
lawyers in terms of the institutional legal framework (role of the institutions,
voting modalities, etc.) have a different effect in different arenas. In fact,
findings by political scientists seem to reveal that the effect of legal institutional improvements related to the performance of the EU in international
institutions is at best doubtful. Thus, to give one striking example, it remains
questionable whether the long-term legal institutional development of the
EUs foreign and security policy will allow the Union to surpass the national
interests of its individual Member States.
It follows from the above that a new agenda for research emerges. With the
increasing ambitions of the EU in relation to global governance, it has become
286
more important to combine legal and political perspectives. This would imply
that legal scholars would take into account the political impact of the legal
arrangements they invent and study and that political scientists would be more
aware of the legal framework, which to a certain extent defines the political
options. On the basis of the above analysis, we propose that the following
themes appear on this new research agenda:
1.
2.
3.
An empirical investigation into the influence of particular legal arrangements related to external competences of the EU on the political performance in a given area;
The effect of the legal position of the EU in an international organization
(full membership, observer status, participation by Member States only)
on the influence of the EU in that particular policy area;
The question to what extent the EU external relations legal framework (as
laid down in the treaties and in case law) enables or restrains the EU and
its Member States in their activities in relation to international organizations.
Lawyers know the rules, political scientists know the practice; but rules and
practice are hardly confronted. Only when legal and political insights are
combined, will we be able to know what to do to attain one of the main EU
objectives in accordance with Article 3(5) TEU:
In its relations with the wider world, the Union shall uphold and promote its values
and interests and contribute to the protection of its citizens. It shall contribute to
peace, security, the sustainable development of the Earth, solidarity and mutual
respect among peoples, free and fair trade, eradication of poverty and the protection
of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles
of the United Nations Charter.
Index
accountability 214
action plans (ENP) 162, 165, 167, 168,
169, 171
Afghanistan 209, 217, 218, 220, 221,
222, 226, 227, 233, 253
Africa 218, 232
see also individual countries
African Union 213, 218, 220, 223
agentprincipal models 2778, 280
Aggestam, L. 223
Ahtisaari, Martti 175, 177, 181, 186
amicus curiae briefs 121, 130
Amsterdam Treaty 25, 210, 212
Area of Freedom, Security and Justice
(AFSJ) 17, 678
Armenia 36
ASEAN 213
Ashton, Catherine 312, 33, 35, 39, 48,
217, 236
see also High Representative for
CFSP
assembly, freedom of 105, 132
Association Agenda, EUUkraine 163,
16770, 171
association agreements 100, 11112,
114, 1612, 168
EUUkraine 163, 169
international organizations 265, 266
Austria 104
Balkans 89, 26, 28, 218, 220, 221, 232,
233
see also individual countries
Ban Ki-Moon 179
Barnett, M. 278
Barroso, Jos Manuel 42, 258
Belarus 157
bilateral agreements 712
investment 64
Billet, S. 272
Blair, Tony 207
Bosnia 208, 218, 220, 222, 2235, 227,
228
Bosphorus case 107

Boutros-Ghali, Boutros 281
Brazil 29, 213
Brussels Treaty 239
Bulgaria 231
burden of proof 10910
Burgoa case 103
Bush, George W. 29, 227
Canada 190, 223
Cape Verde 163, 165
Centro-Com case 63
CFSP see Common Foreign and Security
Policy
Chad 227
China 29, 213, 233
climate change 29
Clinton, Bill 208
Codex Alimentarius Commission 268,
271, 282
coherence 67, 558, 912
horizontal 55, 58, 60, 61, 73, 76
complementarity 8991
consistency 21, 223, 7781
delimitation 829
multi-layered nature of 5962
terminology
consistency versus coherence
1619
multi-layered nature of coherence
5962
vertical 55, 58, 60, 61, 62, 83
complementarity 7076
consistency 213, 636
delimitation 6670
see also consistency
comity see under international law and
European Union
Commission 273
CFSP 24, 211
coherence 67, 28, 32, 348, 39,
412, 54, 56, 578
287
288
context 237
delegated powers 82
enlargement 356, 43
EU delegations 48, 49
European Consensus of
Development (2005) 76
European External Action Service
(EEAS) 423, 445, 46, 47
implementing powers 82
international agreements 38,
8081
primacy of EU law 65
ESDP/CSDP 211, 216, 217, 240
defence industries 247, 248,
2535
European Neighbourhood Policy
(ENP) 1478, 153, 1545, 157
soft law instruments 159, 162,
165, 1678, 169
Kosovo 185, 192, 198, 199200, 201
Mediterranean Union (UMed) 153,
1545
Member State agreements 104
OECD 281
WTO 272
Committee of Permanent
Representatives (Coreper) 40, 42,
215
Common Commercial Policy (CCP) 77,
8081, 84, 86, 87
foreign direct investment 64
Common Foreign and Security Policy
(CFSP) 2, 9, 208, 211, 22021,
227
budget 231
coherence 17, 18, 2022, 245, 267,
32, 33, 46, 54, 56, 77, 90
coordination and complementarity
736
European Council 89
European Court of Justice (ECJ)
656, 74, 81
Foreign Affairs Council (FAC) 40
horizontal 76
legal basis, choice of 868
pre-emption, doctrine of 69
vertical 62
(ENP) 148
High Representative 256, 49, 215

Lisbon Treaty: HR/VP see High
Representative for Foreign
Affairs and Security Policy
and VP of Commission
international organizations 266
neo-functionalism 209
(CSDP) 2, 10, 2057, 2324
capabilities 534, 22831, 232
coherence/consistency and
ESDP/CSDP 18, 26, 34, 39,
41, 46, 524, 57
defence component 210
effective multilateralism 2238
Foreign Affairs Council (FAC) 40
institutions 21518
Kosovo: ESDP rule of law mission
173, 177, 178, 179, 180, 186,
19095, 200201, 221
legitimacy 21115
operations 21822
reason and rationale 20711
role of law in 2356, 2568
defence industries 24556
mutual assistance 23742, 256
permanent structured cooperation
22, 52, 2425, 256
common strategies 26
Commonwealth of Independent States
(CIS) 218
conferral, principle of 667, 83, 85
conflicts of interest (HR/VP) 57
Congo, Democratic Republic of 217,
220, 221, 222, 227, 233
consistency 1516, 54
benchmarks for 1923
in context 2330
horizontal 21, 223, 7781
internal EU policies 23
Lisbon Treaty 2730, 54
Council and working group levels
3842
defence-related aspects 524
(EEAS) 23, 30, 33, 34, 36,
418, 49, 50, 51, 53, 89
external representation and EU
delegations 4851, 267, 281
policy and strategic levels 3038
Index
overview of types of challenges to
223
terminology
coherence versus consistency
1619
multi-layered nature of coherence
5962
vertical 213, 636
see also coherence
Constitutional Treaty 29, 63, 143, 235,
241, 245
consumer protection 8990
Cooper, Robert 232
cooperation, duty of 1819, 59, 61,
713, 88, 269
jurisdiction of ECJ 70
coordination 18, 19, 70
reflex 24
corruption 199
Council 273
coherence 6, 25, 27, 73, 8081, 90
European Consensus of
information to Council 745
legal basis, choice of 86, 889
Lisbon Treaty 3842, 43, 46, 52,
54
ESDP/CSDP 52, 212, 213, 214, 215,
240, 2434
(ENP) 90, 151
international agreements 8081,
99
Kosovo 178, 186, 197, 201
Council of Europe 266, 271, 277
Court of First Instance (CFI) (now
General Court) 101, 1067, 110,
128, 250
Court of Justice see European Court of
Justice
crisis management 136, 208, 216, 222,
283
approach to 227
capabilities 228, 231
coherence 22, 26, 27, 28, 36, 43, 45,
52
cooperation with UN in 228
European Defence Agency 245
289
legitimacy 212
NATO capabilities 277
purposes of ESDP/CSDP 20910,
218, 220
Croatia 190
cross-sectoral agreements 86
Crowe, Brian 50
CSDP see Common Security and
Defence Policy
culture 2667
customary international law 10811,
1336, 208
cyber security 29
Cyprus 53, 143, 180, 226, 231
Czech Republic 37
De Brca, G. 141
De Gucht, Karel 36
defence see Common Security and
Defence Policy
Del Picchia, Robert 153
delegations, EU
external representation and 4851,
267, 281
Demirel case 112
democracy 87, 120, 189, 211, 215
Denmark 213, 231
development policy 18, 25, 41, 43, 46,
47, 58, 281
cooperation 17, 25, 55, 69, 70, 76,
77, 78, 79, 8990, 265, 266
security and 23, 35
tradedevelopment agreements 86
DG RELEX (External Relations) 23, 43,
44, 45, 46, 160, 216
training 47
direct effect 65, 112, 129, 130
discrimination 8990
dualism 97, 1078, 116, 118, 137
Duff, A. 40
EAR (European Agency for
Reconstruction) 176, 195
Eastern Partnership (EaP) 1512, 1558,
170
EBRD (European Bank for
Reconstruction and Development)
268
ECB (European Central Bank) 267
290
ECJ see European Court of Justice

economic sanctions 107
see also Kadi case
ECOWAS case 27, 33, 35
see also Small Arms and Light
Weapons case
EDA (European Defence Agency) 212,
217, 2434, 2456
EDF (European Development Fund)
445
education 266
EEAS see European External Action
Service
Eeckhout, P. 269
EFTA (European Free Trade
Association) 277
energy 87, 163
security 29
Energy Commission 268
enlargement 356, 43, 45, 46, 150, 151,
160
Kosovo 176, 187, 189, 196, 198200,
201
ENP see European Neighbourhood
Policy
environment 723, 84, 87, 8990, 128,
266
tradeenvironment agreements 86
EPC (European Political Cooperation) 9,
234, 55, 60, 209
epistemic community of international
law 12022
ERTA case 100, 268
ESDP (European Security and Defence
Policy) see Common Security and
Defence Policy
ESS see European Security Strategy
Estonia 231
Eurocontrol 268
European Agency for Reconstruction
(EAR) 176, 195
European Bank for Reconstruction and
Development (EBRD) 268
European Central Bank (ECB) 267
European Convention on Human Rights
79, 1056, 131, 132, 133, 262
European Council
coherence 6, 28, 32, 34, 36, 37, 52,
81, 89, 90
appointment of HR/VP 35
overall foreign policy strategy

567
ESDP/CSDP 210, 212, 215, 228, 229,
238, 240
Kosovo 187, 190
Laeken Declaration (2001) 1, 556,
235
meetings 28, 32, 156, 210, 228, 229
June 1999 205, 228
European Court of Human Rights 119,
181
European Court of Justice (ECJ) 3, 78,
10, 25, 27, 7880
Common Foreign and Security Policy
(CFSP) 656, 74, 81
Common Security and Defence
Policy (CSDP) 212
defence industries 24852, 253,
2545
international law see international
law and European Union
international organizations 265, 268,
270, 272, 273
jurisdiction of 6970
legal basis, choice of 835, 86, 879
pressures on 120
primacy of EU law 6061, 636
European Defence Agency (EDA) 212,
217, 2434, 2456
European Development Fund (EDF)
445
European Economic Area (EEA) 266
(EEAS) 236, 244, 263
coherence 23, 30, 33, 34, 36, 418,
53, 57, 89
delegations 48, 49, 50, 51,
267
funding 445
security and defence 53
staff 456
training 478
European Free Trade Association
(EFTA) 277
European Investment Bank 267
European Neighbourhood Policy (ENP)
89, 356, 44, 87, 90, 14750
Index
geographic scope of 17071
countries included 151
lessons learnt 1579
southern and eastern dimension
15057
soft law instruments 15963, 171
action plans 162, 165, 167, 168,
169, 171
country strategy papers 162
EUUkraine Association Agenda
163, 16770, 171
mobility partnerships 1637, 171
see also Kosovo
European Parliament 211
coherence 6, 27, 32, 43, 44, 46, 83,
92
European Consensus on
ESDP/CSDP 206, 211, 214, 240, 247
European Political Cooperation (EPC) 9,
234, 55, 60, 209
European Security and Defence Policy
see Common Security and
Defence Policy
European Security Strategy (ESS) 210
coherence 7, 289, 30
global security 2, 220, 252
multilateralism 223, 284
neighbourhood 8, 9, 147, 148, 159,
170
terrorism 241
export control regimes 283
expression, freedom of 105, 132
delegations 4851, 267
federalism 19
Feith, Pieter 1778, 186, 187, 188
financial crisis 29, 36, 232, 253, 2578,
283
Finland 36, 213, 214, 231
Finnemore, M. 280
Food and Agriculture Organization
(FAO) 265, 268, 271, 282
Foreign Affairs Council (FAC) 35,
3840, 41, 534, 57, 75
foreign direct investment 64
Former Yugoslav Republic of Macedonia
(FYROM) 188, 218, 221, 222,
2235, 228
291
Four, Erwan 51
France 2, 22, 37, 107, 1656, 2356,
284
ESDP/CSDP 208, 213, 222, 226, 227,
230, 231, 253, 276
Mediterranean Union 151, 1525,
158
military spending 230, 253
free movement 105, 1313
free trade agreement, unilateral
suspension of 10811, 1336
free-rider behaviour 52
Fle, Stefan 356
Garton-Ash, T. 6
GATS (General Agreement on Trade in
Services) 272
GATT (General Agreement on Tariffs
and Trade) 96, 101, 1067, 129,
130, 272
Gauttier, P. 59, 60
Gemeinschaftstreue (Community
loyalty) 104
General Affairs Council (GAC) 3840,
57, 215
Georgia 2, 36, 156, 163, 218, 220, 222,
228
Georgieva, Kristalina 36
Germany 37, 71, 106, 131, 132, 141,
142, 150
aid to Greece 2578
ESDP/CSDP 208, 230, 231, 233,
276
Mediterranean Union 1523, 155
military spending 230
Mobility Partnership with Ukraine
166
NATO 227
good faith 125
Gowan, R. 228
Greece 180, 190, 231, 239, 257
Grevi, G. 231
Guinea-Bissau 222
Haegeman case 99100
Hague Conference on Private
International Law 2689
High Representative for CFSP 256, 49,
215
see also Ashton, Catherine
292
High Representative for Foreign Affairs

and Security Policy and VP of
Commission (HR/VP) 21718,
236, 267
coherence 30, 316, 378, 39, 4041,
42, 57, 74, 89
appointment procedure 35
conflicts of interest 57
(EEAS) 424, 45, 53
delegations 48, 51
Foreign Affairs Council (FAC) 39,
40, 534, 75
preparatory bodies 41
security and defence 534
Special Representatives 51
vagueness regarding functions
2445
European Parliament 214
security and defence 534, 212, 240,
243
Hillion, C. 18
Howorth, J. 207
human rights 27, 78, 79, 1056, 128
economic freedoms and 1313
general principles of law 60, 78
Kadi case 989, 13742
human trafficking 164
humanitarian aid 6, 58, 71, 77, 226, 266
Humanitarian Aid and Civil Protection
(ECHO) 36, 46
humanitarian intervention 208
ICJ (International Court of Justice) 108,
110, 116, 119, 123, 180
ICSID (International Centre for
Settlement of Investment
Disputes) 119
ICTY (International Criminal Tribunal
for the former Yugoslavia) 119
ILC (International Law Commission)
1234, 127, 134, 135
ILO (International Labour Organization)
270, 283, 284
IMF (International Monetary Fund) 180,
283
IMO (International Maritime
Organization) 264
India 29, 213, 233

Indonesia 218, 220, 221
internal EU policies 23
international agreements 38, 7781
114, 1612, 163, 168, 169,
265, 266
cooperation, duty of 1819, 59, 61,
713, 88, 269
human rights 105
international organizations 265, 266,
268, 272
interpretation of 69
legal basis 99100
choice of 845, 889
MARPOL Convention 113
Member States 1024, 114
pacta sunt servanda 110
International Civil Aviation Organization
(ICAO) 264, 271
International Court of Justice (ICJ) 108,
110, 116, 119, 123, 180
International Dairy Arrangement case
101, 113
International Energy Agency 264
International Fruit Company case 107
International Labour Organization (ILO)
270, 283, 284
International Law Commission (ILC)
1234, 127, 135
state responsibility 134
international law and European Union
78, 10, 95100, 11314
114, 1612, 163, 168, 169,
265, 266
comity 11516, 1424
adjudication organs 11920
customary international law 1336
economic freedoms and human
rights 1313
epistemic community 12022
inter-regime connector 12542
inter-regime linkages 1224
Kadi case 128, 13742
macro-level fragmentation 11618
meso-level fragmentation 11924
Index
micro-level fragmentation 12942
structured contact 1259
WTO law 11920, 1223, 12930
customary international law 10811,
1336, 208
harmonious interpretation 113
human rights 1056, 1313
Lisbon Treaty 20, 237
Member State agreements 1024, 114
mutual assistance 237
sanctions against individuals (Kadi)
98100, 1067, 128, 13742
UN law 1068
WTO law 967, 1012, 11314,
11920, 1223, 12930
International Maritime Organization
(IMO) 264
International Monetary Fund (IMF) 180,
283
international organizations 75, 109, 122,
199
High Representative for Foreign
Affairs and Security Policy 30,
34, 75
position of EU in 2613
findings: legal perspective 273
legal perspective 26473, 2856
new agenda for research 2856
politics 27486
Treaty competences 2648
types of legal position 26872
interpretive/epistemic community of
international law 12022
Intertanko case 113
Iran 141, 276
Iraq 22, 209, 218, 220, 2212, 228
Ireland 213
referenda 30, 53, 238, 2412
IsraeliPalestinian conflict 155, 218, 220
Italy 230, 231, 25052
Japan 97, 114, 129
jus cogens 116, 138
justice 117
Kadi case 8, 10, 80, 989, 1067, 128,
13742
Kokott, J. 134
Korski, D. 54, 231
Koskenniemi, M. 123
293
Kosovo 1723, 200202, 208, 222, 226

current context
domestic legal order 181
international legal status 18081,
187, 198, 202
political 1824
socio-economic 1845
EU actors and policies in 1856
EULEX 173, 177, 178, 179, 180,
186, 19095, 200201, 221
European Commission Liaison
Office (ECLO) 173, 186,
195200, 202
ICR/EUSR 173, 178, 179, 181,
1869, 202
historical background 17380
Koutrakos, P. 112, 12930
Krenzler, H-G. 18
Kupferberg case 65, 100
Laeken Declaration (2001) 1, 556, 235
legitimacy of ESDP/CSDP 21115
lex specialis principle 116, 119
Lisbon Treaty 2, 17, 568, 76, 212,
2356, 262
Charter of Fundamental Rights 131,
133
Council and working group levels
3842
defence-related aspects 10, 524,
210, 211, 212, 217, 231, 238
(EEAS) 23, 30, 33, 34, 36,
428
delegations 4851
legal basis, choice of 869
multilateralism 223
policy and strategic levels 3038
primacy of EU law 63, 65
road to 23, 2730
term Community 20
terminology: coherence 1619,
5962
TEU see Treaty on European Unity
TFEU see Treaty on the Functioning
of the European Union
Luxembourg 71, 214
294
Maastricht Treaty 245, 208, 210, 212

MARPOL Convention 113
Mediterranean Union (UMed) 1515,
1578
Menon, A. 206
Merkel, Angela 1523, 2578
migration 23, 87, 1637, 171, 194, 281
Moldova 36, 151, 163, 166, 218
monism 97, 108, 115, 116, 118, 137
Morocco 239
Mox Plant case 1267
multilateralism, effective 2238, 261,
2789, 2812, 284
mutual assistance 23740
solidarity clause (TFEU) 24042
national parliaments 214
NATO (North Atlantic Treaty
Organization) 207, 212, 216, 220,
2237, 229, 231, 232, 233, 277
Balkans 175, 208, 221, 222, 2235,
226, 232
bureaucratic politics 281
common defence policy 523, 210,
237
experienced 280
mutual assistance 237, 239
reasons for EUNATO problems 53,
2267
necessity 251
neighbourhood see European
Neighbourhood Policy
neo-functionalism 209
Netherlands 125, 165, 166, 208, 230,
231, 233
networks 48, 117, 142, 277
neutrality 53, 237, 2412
Nice Treaty 26, 210, 211, 212
non-governmental organizations (NGOs)
130, 278, 279
non-proliferation 283, 284
North Korea 141
Norway 190
Nuttall, S.J. 24
Obama, Barack 29, 227
observer status 26971
OECD (Organization for Economic
Cooperation and Development)
206, 269, 271, 281
Open Skies cases 64, 104

Organization of American States 218
Organization on International Carriage
by Rail (OTIF) 269
OSCE (Organization for Security and
Cooperation in Europe) 175, 207,
218, 220, 223, 266, 277, 283
PalestinianIsraeli conflict 155, 218, 220
Parkes, R. 166
partnership and cooperation agreements
(PCAs) 1612, 168, 169
path dependency 131
Patten, Chris 151
Paul, J. 126
permanent structured cooperation 22, 52
role of law in CDSP 2425, 256
Piegbalgs, Andris 35
piracy 2334
PNR case 889
Poland 150, 1512, 155, 157, 158,
1656
Police and Judicial Cooperation in
Criminal Matters 20, 24
Political and Security Committee (PSC)
4041, 212, 240
politics and EU engagement in
cultural-sociological approaches
27881
findings 2814
materialist-functionalist perspectives
2768
new agenda for research 2856
policy studies perspectives 275
Portela, C. 15
Portugal 37, 258
Poulsen and Diva case 108
poverty 47
pre-emption, doctrine of 61, 689
Presidencies, rotating 24, 256, 30, 32,
33, 367, 49, 215
Committee of Permanent
Representatives (Coreper) 40
external representation 49
General Affairs Council (GAC)
3940
working parties 41
President of the European Council 217,
236
Index
coherence 3033, 34, 367, 39, 57
(EEAS) 423
vagueness regarding functions 244
primacy of EU law 59, 6061, 636
primary EU law 60, 63, 7881
principalagent models 2778, 280
Prodi, Romano 2, 147, 150
proportionality 678, 132, 251
public health 267
public opinion 2, 2930, 213
Irish referenda 30, 53, 238, 2412
public procurement 246, 25052, 2546
qualified majority voting 35, 240, 243
Racke v Hauptzollamt Mainz 10811,
1336
reasonableness and comity 125
rebus sic stantibus doctrine 10911,
1336
Reding, Viviane 35
River Rhine Commissions 264
Romania 180, 190
rule of law 6061, 87, 143, 220
Iraq mission 2212
Kosovo mission (EULEX) 173, 177,
178, 179, 180, 186, 19095,
200201, 221
Russia 2, 151, 156, 159, 179, 180, 213,
222, 223, 227, 233
Rwanda 208
sanctions, economic 25, 107
see also Kadi case
Sarkozy, Nicolas 2, 1523, 2356
Schachter, O. 111, 121
Schmidberger case 105, 1312
Scott, C. 1278
secondary law 60, 63, 69, 7881, 113
Sen, A. 117
Serbia 17380, 181, 1834
Single European Act 24, 55, 60
Slovakia 180, 190
Slovenia 37
Small Arms and Light Weapons case 86
see also ECOWAS case
social networks 48
social policy 267, 270
Scrates, Jos 258
295
soft law instruments and ENP 15963,

171
163, 16770, 171
Solana, Javier 256, 42, 151, 205, 218,
22930
solidarity clause (TFEU) 27, 53, 24042
Somalia 47, 233
Soviet Union 25
Spain 103, 153, 180, 190, 222, 227, 239
Special Representatives 41, 51, 75, 217
Kosovo: ICR/EUSR 173, 178, 179,
181, 1869, 202
sport 266
Stabilization-Association Process (SAP)
1967
subsidiarity 19, 678
succession theory 1067
Sudan 47, 222, 226
Sweden 37, 723, 213, 214, 230, 231
(ENP) 150, 1512, 155, 157,
158
Switzerland 190
terminology: coherence
consistency versus 1619
multi-layered nature of 5962
terrorism 23, 27, 53, 241
third party rights 103
Tietje, C. 59
Torstila, Pertti 21
trade 25, 41, 43, 46, 58, 86, 102
GATS (General Agreement on Trade
in Services) 272
GATT (General Agreement on Tariffs
and Trade) 96, 101, 1067,
129, 130, 272
WTO see World Trade Organization
training 478, 266
Treaty on European Union (TEU) 20, 23,
25, 55, 62, 81, 87, 257, 264
Art 1 87, 262
Art 3 60
Art 3(5) 20, 87, 149, 266, 286
Art 4(1) 66
Art 4(3) 61, 65, 71, 72, 73, 74, 248,
269
296
Art 5 66, 67
Art 5(1) 61
Art 5(2) 66
Art 6 262
Art 6(1) 78
Art 6(3) 78, 79
Art 13(1) 20
Art 13(2) 61, 82, 88
Art 15(2) 31
Art 15(6) 31, 57, 236
Art 16(6) 39, 57
Art 16(7) 40
Art 17(1) 34, 57
Art 17(6b) 34
Art 18 217, 236, 244
Art 18(2) 31
Art 18(24) 34
Art 18(4) 57, 58, 89
Art 20 52
Art 21 77, 87, 89
Art 21(1) 223
Art 21(12) 266
Art 21(3) 16, 20, 61, 77
Art 22 90
Art 22(1) 56, 89
Art 24(1) 20, 87
Art 24(2) 74
Art 24(3) 71, 74, 239, 257
Art 25 22
Art 26 25, 26
Art 26(1) 36
Art 26(2) 81
Art 26(3) 74
Art 27 217
Art 27(2) 31, 267
Art 27(3) 46, 57, 236
Art 28(2) 74
Art 28(3) 74
Art 28(4) 75
Art 29 74
Art 31(1) 240
Art 32 18, 212, 75, 267
Arts 3235 75
Art 33 41, 51, 75
Art 34 75, 267
Art 34(1) 34, 37, 267
Art 34(2) 22, 34, 75, 266
Art 35 18, 267
Art 37 266
Art 38 40, 217

Art 40 17, 21, 267, 66, 87, 88, 89,
90
Art 42 217
Art 42(1) 266
Art 42(2) 523, 237, 2389
Art 42(3) 52, 245
Art 42(5) 52
Art 42(6) 22, 52, 242
Art 42(7) 210, 237, 241, 266
Art 43 211
Art 46 243, 244
Art 47 20
Protocol on permanent structured
cooperation 2425
Treaty on the Functioning of the
European Union (TFEU) 20, 62,
87, 264
Title VII 210
Art 1 87
Art 2(2) 38, 62, 68, 69
Arts 36 21, 27
Art 4 18
Art 4(4) 69
Art 7 16, 66
Art 10 89
Art 11 89
Art 12 89
Art 18(b) 267
Art 43 265
Art 71 240
Art 78(1) 79
Art 82(1)(d) 92
Art 87(2)(a) 92
Art 156 267
Art 165(3) 266
Art 166(3) 266
Art 167(3) 267
Art 168(3) 267
Art 191(3) 266
Art 207 265
Art 207(1) 64
Art 207(3) 77, 80
Art 207(4) 86
Art 208 18
Art 208(1) 55, 89
Art 208(2) 79, 266
Art 209 265
Art 209(2) 266
Art 210 18
Art 210(1) 55, 266
Index
Art 211 265
Art 212 78, 87
Art 212(1) 71, 78
Art 212(3) 266
Art 214(1) 71
Art 214(4) 266
Art 214(6) 71
Art 214(7) 71, 266
Art 216(1) 67, 77, 86, 265
Art 216(2) 65, 78, 81
Art 217 112, 265
Art 218 87
Art 218(3) 38
Art 218(6)(a)(v) 92
Art 218(9) 84
Art 218(11) 7980, 81, 88
Art 220(1) 266
Art 221(1) 267
Art 222 53, 240, 241
Art 263 78
Art 275 66, 81, 91
Art 288 65, 88
Art 289(3) 83
Art 290(1) 83
Art 291 82
Art 296 84
Art 317 45
Art 344 69
Art 346 246, 24756
Art 347 255
Art 348 2489
Art 351 634, 103, 138
Art 351(2) 64
Art 352 26, 67, 86
Tridimas, T. 132
TRIPS (Trade-Related Aspects of
Intellectual Property Rights)
Agreement 272
Tulmets, E. 160
Turkey 112, 143, 152, 190, 226, 239
Ukraine 36, 151, 158, 164, 1656, 218,
223
163, 16770, 171
UNESCO 271
Union for the Mediterranean (UMed)
1515, 1578
United Kingdom 2, 22, 85, 107, 150,
284
297
ESDP/CSDP 2, 208, 209, 213, 230,

231, 233, 253, 256
European Defence Agency 246
interests redefined 276
military spending 230, 253
United Nations 79, 208, 212, 220, 223,
2278, 232, 233, 282
Charter 99, 106, 116, 1356, 1378
Art 51 237
Congo, Democratic Republic of 221,
222, 227
Convention on the Law of the Sea
(UNCLOS) 1267, 264
EU courts and law of 1068
EU Treaty competences 266
General Assembly 271, 283
EU delegations 4950
High Commissioner for Refugees
(UNHCR) 264, 270, 281, 282,
283
Kosovo 177, 179, 208, 222
UNMIK 1756, 17880, 181, 182,
183, 185, 199
observer status 27071
purpose of UN, clashes over 281
Security Council 8, 22, 34, 49, 75,
1078, 177
ESDP/CSDP 21314, 227, 228
Kadi case 8, 10, 80, 989, 1067,
128, 13742
Res 1244: Kosovo 175, 179, 181
Res 1441: Iraq 22
updating peacekeeping doctrines 277
United States 2, 29, 114, 129, 141, 233
Balkans 208
Kosovo 177, 179, 190, 208
Cold War 25
comity doctrine 1256
ESDP/CSDP 207, 209, 213, 223,
2267
NATO 223, 2267
SWIFT Agreement, rejection of
92
USAID 162
WTO law 97
value added tax (VAT) 249
Van Rompuy, Herman 3031, 323,
367, 39, 236
298
variable geometry and mobility

partnerships 1637
Vienna Convention on the Law of
Treaties (VCLT) 106, 109, 110,
134, 1356
Von Bogdandy, A. 118
Wai, R. 1278
Walker, N. 117
Weiler, J.H.H. 3, 235
WHOEgypt opinion (ICJ) 108
Witney, Nick 206, 222, 230
working group levels and Council 3842
World Bank 180, 283
World Customs Organization (WCO)
269
World Health Organization (WHO) 280

WHO-Europe 277
World Trade Organization (WTO) 268,
271, 272, 282
EU courts and law of 967, 1012,
11314, 11920, 1223,
12930
Yugoslavia 25, 119, 208, 281
see also Balkans; Bosnia; Croatia;
Former Yugoslav Republic of
Macedonia; Kosovo; Serbia;
Slovenia
Yusuf case 1067

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European Foreign Policy

The Editor and Contributors Severally 2011

ISBN 978 1 84980 409 7

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THE EUROPEAN UNION AND ITS NEIGHBOURS

The European Union as an international actor and progressive

EUROPES JUDGES AND THE INTERNATIONAL ORDER

Vlkerrechtsfreundlich? International law and the Union

COHERENCE IN EUROPEAN UNION FOREIGN POLICY

Consistency, coherence and European Union external action:

COMMON SECURITY AND DEFENCE POLICY

The Common Security and Defence Policy in a multilateral world

European foreign policy

The role of law in Common Security and Defence Policy:

PART V THE EUROPEAN UNION IN INTERNATIONAL

The position of the European Union in (other) international

European foreign policy

Bart Van Vooren is Assistant Professor at the Faculty of Law, University of

European Council, 1415 December 2001, p2.

European foreign policy

affairs, coupled with a sense of responsibility, was further underlined in the

European foreign policy

or provide a reasonably comprehensive analysis of components of EU external

European foreign policy

Garton-Ash, T., Free World (London: Penguin 2005) p218.

European foreign policy

European foreign policy

Common Security and Defence Policy

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

describes the emphasis on the question of competence, that is the extent to

Coherence in European Union foreign policy

1. Consistency, coherence and European

European foreign policy

This chapter will examine, primarily from a historical and institutionalist

TERMINOLOGY: CONSISTENCY v. COHERENCE

At first glance it is apparent that different kinds of consistency are being

Consistency, coherence and EU external action

European foreign policy

as the action or fact of sticking together or a harmonious connection to the

Consistency, coherence and EU external action

BENCHMARKS FOR CONSISTENCY

European foreign policy

To begin with there are the structural aspects of consistency introduced by

Consistency, coherence and EU external action

European foreign policy

The above article poses a number of dilemmas since, by implication, it

Consistency, coherence and EU external action

between the pillars of the Union, as constructed by the Treaty on

European foreign policy

Consistency, coherence and EU external action

tutional linkages necessary to ensure consistency. The TEU was far-sighted in

European foreign policy

Consistency, coherence and EU external action

The Commission and the European Parliament maintained that Article 47

European foreign policy

Consistency, coherence and EU external action

European foreign policy

Irish referenda illustrated the difficulties that the EU institutions have in

THE LISBON TREATY AND CONSISTENCY IN

Consistency, coherence and EU external action

By way of juxtaposition to the role of the President of the European Council,

European foreign policy

Consistency, coherence and EU external action

European foreign policy