A single framework involving differentiated institutional interactions

While the institutional framework is single in terms of the institutions it involves, it is however plural in terms of the interactions taking place within it. The interplay between the institutions takes different forms, for the powers and role of each

524 _{In case C-176/96 Jyri Lehtonen v Castors Canada Dry Namur-Braine ASBL, para. 33, the Court} referred to the “institutions of the European Union”. Also Article 51(1) of the EU Charter of Fundamental rights states that its provisions are “addressed to the institutions and bodies of the Union” (OJ 2000 C364/01).

525 _{Treaty establishing a Single Council and a Single Commission of the European Communities,} signed in Brussels on 8 April 1965.

526 _{Expression used by Curtin (1993: 67).}

527 _{The glossary of the European Convention on the future of Europe’s website defines the single} institutional framework as follows: “The single institutional framework means the Union acting through shared institutions, whatever its area of action, in order to ensure the consistency and continuity of that action. This applies equally to differentiated integration operations which do not involve all Member States.”

institution vary, depending on the EU sub-order in which it act,528 _{and on the subject-}

matter of the action within each of these sub-orders.

There is no need to recall each and every subtle difference in institutions’ powers under and within the various sub-orders in the context of the TEU.529 _{Suffice to say}

that, first, the Council invariably enjoys the same role in each sub-order as it is the essential decision-making body in the Union as a whole.530 _{Secondly, the other}

institutions, particularly the Parliament, the Commission and the Court have different roles according to the matter in question. For instance, in the context of Title V, the Commission is “fully associated” with the work carried out in the CFSP field,531 _and

together with the Presidency in the Union’s representation and in the implementation of decisions taken under Title V.532 _{Furthermore, it shares a power of initiative with}

the Member States,533 _{and is responsible, together with the Council, of ensuring the}

consistency of the Union’s external activities.534 _{As regards the European Parliament,}

it has to be consulted by the Presidency on the main aspects and the basic choices of

528_{Art. 28(1) TEU (Title V) provides that the provisions of Articles 189, 190, 196 to 199, 203, 204, 206} to 209, 213 to 219, 255 and 290 of the EC Treaty shall apply to the provisions relating to the areas referred to in… title [V]”. Article 41(1) TEU (Title VI) also states that “Articles 189, 190, 195, 196 to 199, 203, 204, 205(3), 206 to 209, 213 to 219, 255 and 290 of the Treaty establishing the European Community shall apply to the provisions relating to the areas referred to in this title. Hence the provisions of the EC concerning the institutions apply only in a selective fashion in the context of the other sub-orders. The provisions of Articles 195 (on the Ombudsman) and 205(3) (constructive abstention within the Council) EC apply in the context of Title VI, but not in the context of Title V. 529 _{Further on this point: Cremona (1994: 255ff), Flaesch-Mougin (1993: 388ff), Macrae (1994: 171),} van Solinge (1993: 113) and Fink-Hooijer (1994: 186ff).

530 _{This unvarying function partly explains why it sees itself as an institution of the Union. Just a few} days after the entry into force of the Maastricht Treaty, the Council renamed itself “Council of the European Union”. Council Decision 93/591 of 8 November 1993 (OJ 1993 L281/18) concerning the name to be given to the Council following the entry into force of the Treaty on European Union states that: “[t]he Council shall henceforth be called the ‘Council of the European Union’ and shall be so designated, in particular in all the acts which it adopts, including those adopted under Titles V and VI of the Treaty on European Union; political declarations which the Council adopts under the common foreign and security policy will thus be made in the name of ‘the European Union”.

531 _{Art. 27 TEU.} 532 _{Art. 18(4) TEU.} 533 _{Art. 22(1) TEU.} 534 _{Art. 3(2) TEU.}

the CFSP. Its views should be duly taken into consideration. It should also be kept regularly informed, by the Presidency and the Commission, of the development of the Union’s foreign and security policy. It may also ask questions to the Council or make recommendations to it.535 _{Indeed, the Parliament, through its budgetary powers, has}

influence on the financial aspects of Title V.536 _{Finally, with respect to the Court, the}

CFSP falls outside the scope of its jurisdiction altogether.537 _{As suggested above, it}

can only review a CFSP measure on the basis of Article 230 EC on the ground that it has been adopted in breach of the EC Treaty.538

The differentiated roles and powers of the institutions, albeit acting within a single framework, have led to the view that the Treaty establishes a single institutional framework en trompe l’oeil.539 _{It has indeed generated numerous turf-battles as}

regards the respective roles and competences of the different institutions. This state of affairs has contributed to increased fragmentation of EU external relations, rather than to consistency and coherence, as it shall be seen in the next chapter.540 _{At the same}

time, differentiation in the roles and powers of the institutions can be as significant

within a sub-order, notably the EC Treaty, as in the context of the TEU, without questioning the existence of a Community institutional framework.541

The single institutional framework and the consistency to which it contributes, is also underpinned by the interactions between each institutions’ administrations and civil servants.542 _{The entry into force of the TEU generated widespread restructuring within}

each institution in order to give more content to the concept of single institutional

535 _{Art. 21 TEU.}

536 _{See Commission report on the functioning of the Treaty on European Union (European} Commission, 1995e: note 157).

537 _{Art. 46 TEU. Case T-201/99 Royal Olympic Cruises and Others v Council and Commission.} 538 _{See the Court’s ruling in Case170/96 Airport Transit Visa, and discussion above.}

539 _{Timmermans (communication au Colloque de l’Université Libre de Bruxelles, L’Union européenne}

après Maastricht (Bruxelles, 1992), cited in Flaesch-Mougin (1993: 376). Deirdre Curtin (1993 27-30) speaks of a “fiction”. See also Weiler (1993: 58ff), von Bogdandy and Nettesheim (1996).

540 _{Schwalz (1998: 427), Allen (1998: 41).}

541 _{Weiler (1993: 58ff). See also von Bogdandy and Nettesheim (1996) and evidence of J-C. Piris} before the Working Group III (Legal personality) of the European Convention 26 June 2002 (Piris, 2002: 9-10).

framework.543 _{Moreover, the unity of orientation of the institutional framework is also}

stimulated by the enhanced role of the European Council. Although not considered an institution stricto sensu,544 _{the European Council has become increasingly involved in}

the activities of the EU, as will become particularly evident in the next Part of this study.545 _{Indeed, its composition gives it a particular influence on all the activities of}

the Union, Community activities included. In particular, the presence of the President of the Commission entails that the latter becomes in effect committed by its orientations,546 _{which subsequently influence the Commission’s power of initiative.}547

To recapitulate, the single institutional framework foreseen by the TEU is conceived as an additional factor of consistency in the activities of the European Union in general.548 _{Commissioners, Parliamentarians and Ministers may have several hats,}

they only have one head.549 _{Unlike the duty of cooperation, the duty to maintain the}

acquis and the principle of consistency, the single institutional framework is not, in itself, a principle guiding the action of the Community and the Member States in the framework of the Union. Instead, it is a procedural and organisational device to foster the overall consistency of Union’s activities. Moreover, it does not concern the relationship between the Member States and the Community and Union, but relates to, and partly attenuate, the distribution of competences between the EU sub-orders.

4.4. Conclusion

This chapter has examined the principles contained in the TEU which govern and organise the interactions between the Union’s sub-orders in the system of EU external relations. These principles have different functions and a distinct nature. The duty to

543 _{See Fink-Hooijer (1994: 190) on the revised role of the Political Committee, the COREPER and the} working groups.

544 _{In particular the European Council is not understood as one of the institutions whose decisions can} be challenged before the Court of Justice. See order of the Court in Case C-253/94P Olivier Roujansky v Council of the European Union, confirming the findings of the CFI in Case T-584/93 Roujansky v Council of the European Union.

545 _{Further: Dashwood (2000a), de Schoutheete and Wallace (2002) and Neuwahl (1994: 239).} 546 _{Dashwood (1998a: 1031).}

547 _{See further developments on Chapter 4 of this study.} 548 _{Jacqué (2001: 169).}

maintain and build upon the acquis communautaire entrenches the division of powers between the Community and the non-Community aspects of EU external relations. Interactions between them are determined by this division whose respect is guaranteed by the Court of Justice. By contrast, the principle of consistency aims at fostering synergy and coherence in the external activities of the Union. It is supported by the single institutional framework, but not guaranteed by the Court of Justice. As such it essentially has a guiding role, and its effectiveness is highly dependent on good will. Together with the duty of cooperation examined in the previous chapter, these principles underpin the system of EU external relations. They aim at ensuring the coherence of the EU external action. The next part will examine how these principles have influenced, if at all, the institutional practice as evidenced in the development of the Partnerships with Russia and Ukraine.

PART III

AN EVOLVING SYSTEM OF EU EXTERNAL RELATIONS TESTED