Skip to content
Branch: master
Find file Copy path
Find file Copy path
Fetching contributors…
Cannot retrieve contributors at this time
400 lines (398 sloc) 12.8 KB
Hello, and welcome back to another look
at the external dimension of EU Law.
In the previous lecture,
we looked at the institutional setup
of the external dimension of the EU.
We looked at the actors and
institutions, the procedures, and
the tools available for
action in international arena.
In this lecture, we're going to apply
those principles in the different fields
of law where the EU has competence to
conclude international agreements.
We will look at six separate fields and
have a brief discussion of each.
The Common Commercial Policy, or CCP for
short, is the origin of
all EU external policies.
The existence, nature, and
scope of the external competence as
we discussed in the previous lecture
on the external dimension have
largely been defined by reference
to early cases in the area of CCP.
Bart Van Vooren and
Ramses A Wessel in their textbook on EU
external relations law,
which has also inspired this lecture,
go as far as saying that CCP is not just
a key external relations policy, but
in substantive terms, it is at the very
heart of European integration project.
And the logical consequence of
the interaction between internal and
external developments.
Examples are the EEC
as a customs union and
the rules of free trade laid down in the
General Agreement on Tariffs and Trade.
The CCP is, therefore,
the external complement to
the internal market rules on trade.
CCP competences are exclusively
in the hands of the EU.
There are few rules in the treaty, but
those which exist clearly emphasize
integration and the abolition of
restrictions on international trade.
The treaty also emphasises
the principle of uniformity.
In order to get an idea,
please take a pause here and
look at articles 206 and 207 TFEU which
contain these principles as well as
the rules on the legislative procedure.
So, what specific instruments and
policies are available for the EU to
realize integration and the abolition
of restrictions on international trade?
The first is the Common Customs Tariff.
It works on a simple principle.
Once internal tariffs are removed,
one needs to agree on common external
tariff to prevent goods from entering
the internal market through the member
state with the lowest import tariff.
The second are trade barriers and
market access.
These are usually regulated
from EU regulations and
can concern such things as
the relations of North Korea, or
preferential rules for
developing countries.
One example is the so called,
Banana saga, which arose from the fact
that the EU allowed preferential treatment
of bananas from certain countries.
Third, there are the trade
defense instruments.
These anti-dumping measures
are intended to prevent the market from
being distorted by products
sold under their normal value.
Moreover, these measures also aim
to protect the internal market and
its industries from subsidized
imports from third states.
In this context,
it will be appropriate to mention
the application of WTO law in the EU.
During the so-called Banana Wars,
the issue on the applicability of WTO
law in the EU was raised by importers
who had suffered financial damage
through the measures adopted by the EU.
In the context of these proceedings,
it was established by the Court of
Justice that WTO law does not
have direct effect in the EU.
However, by exception WTO law may be
invoked if EU law was adopted to
implement a specific measure or
when an EU measure makes
an express reference to WTO law.
The EU has been involved in
development since its inception.
Its development policy
is guided by the 3 Cs,
complementarity, coherence,
and coordination.
You find these in
articles 208 to 210 TFEU.
That is found in article 208 TFEU.
This concerns the nature of EU competence.
It means that the competence is shared
between the member states and the EU.
This is clear from
the wording of Article 208.
The Union's development
cooperation policy and
that of the member states complement and
reinforce each other.
They are positively and
mutually reinforcing coherence.
Coherence has significant legal
nad political implications.
There is coherence of EU development
cooperation with the more
general principles and
objectives of EU external relations.
Poverty reduction as the primest primary
policy objection, providing intra-policy
focus as to how different initiatives
cohere to the central goal.
The obligation to take account
of the development activities in
other policies which are likely
to affect developing countries.
And finally, coordination.
Coordination is the operative
arm of outer two C's.
Complementarity and coherence.
This means that article 210
TFEU is very important.
There is multi-track financing
of the development budget and
coordination between the Commission and
the EEAS.
And finally, since the competence
is shared in this field,
the EU must coordinate
with the member states.
The Common Foreign and Security Policy,
or the CFSP, for short.
The EU loves its acronyms as much as the
Americans, although they always sound so
much worse.
It's based on a set of compromises.
Member states have been
reluctant to hand over powers to
the EU in this particular area.
However, the strong links to other
policies and the single institutional
structure forced the integration of
CFSP in to the legal order of the EU.
Originally separated from EU law,
it is now an integral part of it.
However, the CSFP is still distinct.
It is the only substantive policy domain
found in the treaty of the European Union.
You can see, for example, Articles 3
paragraph 5 and 24 paragraph 1 TEU.
I would like you to take a look
at the articles 23 to 41 TEU.
In article two, paragraph four, TFEU,
it is stated that the EU shall
have competence in this field.
The existence of competence
is therefore clear, but
the nature of that competence
remains difficult to define.
Under the CFSP, the member states
have an obligation to inform and
consult each other.
You can see this in Article 32, TEU.
They are also under the loyalty
obligation which you find in Article 24,
paragraph 3, TEU.
When it comes to
the institutional balance,
it is decidedly different in the CFSP.
The European Council has a leading
role in defining the CFSP.
The main decision making
institution is also the Council.
The Commission has received a new role
in the Lisbon Treaty since it may,
together with the member states, refer
matters under the CFSP to the Council.
And finally, the European Parliament
plays a limited role in this context,
something which may constitute
a democratic deficit,
depending on how you look at the role
of the European Parliament in Europe.
There are a number tools
available in the CFSP.
The CFSP is often shaped on the basis
of informal acts, such as declarations.
One particular feature is that the CFSP
legal acts can not be adopted as
directives and regulations but
only as decision.
Other possible ways include
international agreements and
restrictive measures,
also known as economic sanctions.
The Common Security and Defense Policy,
the CSDF for short, is a part of the CFSP.
Actually, defense
cooperation was a taboo for
a long time, but is now growing to
become a distinct subfield of the CFSP.
Before we move forward, I would like
you read articles 42 to 46 TEU,
which cover this field.
The CSDP is an integral part of the CSFP.
It includes the progressive framing
of the common union defense policy.
Although this indicates that there is
a progressive change taking place,
the obligation of loyal support in
article 42, paragraph 7 TEU and
article 222 TFEU indicate that
there is a far-ranging obligations of
the EU member states to support each
other in the event of a terrorist attack
or a natural or a man-made disaster.
The decision-making takes place
along similar lines as the CFSP.
Decisions are the main tool.
Within this policy, there are a number
of institutions which are not
expressly regulated in the treaties.
The pivotal body is the political and
security committee.
The European Union military committee
is the highest military body
within the counsel.
It is composed of the Chiefs of
Defense of the member states.
On the civilian side, it is complemented
by the CIVCOM, the Committee for
Civilian Aspects of Crisis Management.
There is also the CMPD, the Crisis
Management and Planning Directorate.
Further bodies deal with coordination and
As you may have seen, there's one body
that is expressly mentioned in the treaty,
the European Defense Agency.
It is mentioned in Article 42 paragraph 3
TEU, and it's further defined in Protocol
10 on permanent structured cooperation,
established by Article 42 TEU.
Missions here include Mali, Operation
Atalanta in the Somalian waters, and
EUPOL, the European Union Police Mission
in Bosnia and Herzegovina.
There are more than 20 CSDP
operations since 2003.
The final field we will look at
today is the external dimension of
the internal energy market.
There is no comprehensive EU
external energies policy.
However, the Lisbon Treaty strengthened
coherence in the EU external relations and
expressly conferred energy
competence onto the EU.
Today, there are disagreements on
the roles of the high representative and
the EEAS.
They have different views on what
the EU external energy policy is about.
The strength and
role of the European Parliament
must also be taken into account.
But before we continue,
I would like you take a moment and
read article 194 TFEU on energy.
As you can tell from the wording
of Article 194 TFEU, there is
no express external competence conferred
on the EU in energy policy matters.
Any external action, therefore,
must follow the general internal rules in
the EU, such as the gas and
energy market packages.
The provision focuses on ensuring the
well-functioning of the internal market,
security of supplies, and
environmentally friendly energy policies.
The main challenge to EU policies
is the tendency of member states to
give priority to their national
interests over common EU interests.
Here, we will focus on two tools for the
external dimension of EU energy policy.
The first is the Energy Community Treaty.
According to this treaty, EU energy law
is applied to market participants from
countries outside the EU.
The treaty entered into force in 2006, for
a period of ten years, and covers the EU
and large numbers of countries in Eastern
Europe, including the Ukraine since 2010.
It is a regional, multilateral agreement,
which aims to create an integrated
bath market, in natural gas and
electricity, between the participants.
The ECT is a system based on the European
coal and steel community with
independent bodies and
an independent dispute settlement system.
The aim is to create the stable regulatory
and market framework capable of
attracting investment, so that all
parties have access to continuous gas and
electricity supply that is essential for
economic development and social stability.
The second tool, which is used for
the countries not party to the ECT,
are bilateral energy instruments.
Such instruments have been concluded
with a large number of countries,
including Russia and even India.
These include memoranda of
understanding in energy matters, and
other types of joint declarations.
The shared competence in this field
means that the roles remain unclear.
Finally, there is the external dimension
of freedom, security, and justice.
This is a relatively new policy
area that was mainly designated to
facilitate cooperation
between the EU member states.
The main areas are immigration,
judicial cooperation in civil and
criminal matters, approximation of
criminal law, police cooperation, and
fundamental rights protection.
In these fields,
the EU has enacted legislation and
concluded international agreements.
One of the elements which distinguish
this field from other areas is that
the issues almost always relate to what
is considered to be fundamental and
sometimes constitutional
dimensions of statehood.
I would like you to pause a second and
read article 67 TFEU.
As you see, it is clear from the text
of this provision that the focus is on
citizens of the European Union.
Therefore, this particular field of EU
law has sometimes been described as
the fortress Europe, which raises
barriers to entry by other nationals.
There are a number of specific
policy fields in this context.
The external dimension covers policy on
border checks, asylum, and immigration.
Judicial cooperation in civil matters,
judicial cooperation in criminal matters,
and also data protection in international
agreement form a part of this policy.
Since this MOOC carries
its focus on business law,
I have chosen to leave this topic here,
but needless to say,
there is much to be said, and learn,
about this particular feature of EU law.
But that is for
another time and another MOOC.
So, now that you have received
an overview of six different fields in
the external dimension of the EU law,
with a perfect alphabet soup of
weird abbreviations that are difficult
to remember even for me, it is time for
me to say thank you for
tuning in and see you soon again.
You can’t perform that action at this time.