A plethora of new CFSP devices adding strain on the coherence of EU external activities

New mechanisms of EU external relations were added to the TEU by the Treaty of Amsterdam, aimed at enhancing efficiency and consistency of the Union’s external activities.595 _{The most significant changes concerned Title V although changes were}

also introduced in the EC Treaty.596 _{With respect to Title V, the Maastricht provisions}

were replaced by an entirely revamped set of provisions. The external dimensions of the EU did not however replace the external relations of the EC. The need to coordinate the two henceforth became more pressing, and contentious, than ever. Three particular devices are worth pointing out in the context of the present discussion: first, the introduction in Title V (and VI) of a procedure to establish EU contractual relations with third countries and international organisations (5.2.1.1); secondly, the creation of a High Representative for CFSP (5.2.1.2) and thirdly, the introduction of “common strategies” (5.2.1.3).

5.2.1.1. Differentiating the EU external contractual relations: the procedure of Article 24 TEU

595 _{Further: Dashwood (1998a) and des Nerviens (1997).}

596 _{As regards EC external relations, Art. 113, renumbered 133 EC, was extended by the Treaty of} Amsterdam with a fifth paragraph enabling the Council to widen the scope of the CCP to the fields of services and intellectual property not already contained therein, thereby possibly undoing the consequences of Opinion 1/94. Further: Cremona (1999b: 225). Art. 133 was then further amended by the Nice Treaty to include, at least to certain extent, these subject matters within the scope of the CCP (Cremona, 2001b: 61; Grard, 2000: 378-385). In addition, the Treaty of Amsterdam elaborated on the procedural provisions of Art. 228, renumbered Art. 300 EC, to include procedures on the provisional application and suspension of Community external agreements. New provisions were also introduced to determine the procedure for establishing the Community position to be defended in decision making bodies set up by external agreements (Dashwood, 1998a: 1025; des Nerviens, 1997: 804).

Already a bone of contention in the context of the Maastricht Treaty,597 _{the issue of}

granting the Union legal personality was also contentious also during the 1996 Inter- Governmental Conference leading to the Treaty of Amsterdam.598 _{Then, the EU}

Heads of State or Government eventually agreed not to include an express conferral of the international legal personality to the European Union.599 _{The Treaty of}

Amsterdam nonetheless introduced a procedure for negotiating and concluding agreements on behalf of the European Union in the fields covered by Title V and Title VI.

Article 24 TEU provides:

When it is necessary to conclude an agreement with one or more States or international organisations in implementation of this Title, the Council, acting unanimously, may authorise the Presidency, assisted by the Commission as appropriate, to open negotiations to that effect. Such agreements shall be concluded by the Council acting unanimously on a recommendation from the Presidency. No agreement shall be binding on a Member State whose representative in the Council states that it has to comply with the requirements of its own constitutional procedure; the other members of the Council may agree that the agreement shall apply provisionally to them.

The provisions of this Article shall also apply to matters falling under Title VI.600

The issue of whether or not this procedure involved an implicit recognition of an international capacity for the European Union has been widely debated.601 _Subsequent

institutional practice and the Nice Treaty partly settled the issue. Without being more successful than the previous one on introducing an express reference to the legal personality of the EU, the 2000 IGC revisited the terminology of Article 24 TEU in a sense which supports the view that the EU implicitly has legal personality.602 _In

particular, it introduced the possibility that an Article 24-agreement be provisionally

597 _{Federal Constitutional Court Decision Concerning the Maastricht Treaty, 33 I.L.M. 388, 411} (BVerfG 1994). Denza (2002: 162), McLeod et al. (1996: 25), Cloos et al (1993).

598 _{A text of the Irish Presidency submitted by the Irish Presidency to the European Council in Dublin} in December 1996 proposed to establish the legal personality of the EU alongside that of each Community (European Council, 1996a).

599 _{Marquardt (2001: 331).} 600 _{Art. 38 TEU.}

601 _{Wessel (1997: 109), des Nerviens (1997: 801), Dashwood (1998a: 1019).}

applicable to the whole of the Union, pending ratification in a Member State which has indicated that such ratification is necessary. Moreover, the new provision makes it clear that agreements concluded in accordance with Article 24 TEU are binding on the Union’s institutions, including Members of the Council.603

The introduction of such a procedure has meant that it is henceforth possible to give an external contractual dimension to Title V and Title VI of the TEU. Consequently, adding non-EC aspects to Community agreements may turn out not to be as necessary as previously. It was suggested in chapter 2 that mixed agreements, such as the PCAs, were used by default as a medium of EU external relations, to ensure the projection of the Union as whole. Article 24-agreements have made it possible, at least in principle, to reduce instances of cross-pillar mixity by allowing all provisions relating to Title V and Title VI to be dealt with separately, in specific EU agreements, and severed from mixed agreements.604 _{At the same time, it increases the polarisation of the system of}

EU external relations. In this regard, it is noteworthy that the Commission has resisted the development of Article 24 TEU agreements, promoting instead the use of mixed agreements such as the PCAs, to keep the Community involved in non-EC subject- matters.

5.2.1.2. Incarnating the polarisation of the system of EU external relations: the High Representative for CFSP

The increasing importance of the external dimension of the Union, distinct from EC external relations, was also underscored by the creation of the post of High Representative (HR) for CFSP. The rationale behind this creation was to give more visibility to the CFSP. The Treaty of Amsterdam introduced an Article 26 TEU which provides:

The Secretary-General of the Council, High Representative for the common foreign and security policy, shall assist the Council in matters coming within the scope of the common foreign and security policy, in particular through contributing to the formulation, preparation and implementation of policy

603 _{Piris (2000: 27). See also the IGC Legal Adviser’s “Comments on the draft amendments to Article} 24 TEU” (Intergovernmental Conference, 2000).

604 _{Given the Council’s interpretation of the scope of the CFSP, the fear has been in the Commission} that Art. 24 Agreements could cover the whole breadth of external policy.

decisions, and, when appropriate and acting on behalf of the Council at the request of the Presidency, through conducting political dialogue with third parties.605

The function of the HR is thus combined with that of Secretary-General of the Council. His or her tasks have been to assist the Presidency in charge of representing the Union in CFSP issues. S/he also assists the Council particularly by contributing to the shaping and implementation of the CFSP, with the help of a “policy planning and early warning unit”.606 _{Also, s/he leads the political dialogues with third countries}

under instructions from the Council.

The creation of the post of HR for CFSP undoubtedly enhanced the visibility of the EU foreign policy, based on Title V. However, the post incarnates further institutionalisation of the distinction between the various strands of EU external relations, thereby entrenching pillar-politics in the system. Indeed, the presence of two official EU figures in charge of external policy with no clear division of tasks, and acting within different institutional logics, potentially leads to competition and overlaps, thus increasing the strain on the institutional coherence of the system of EU external relations.

5.2.1.3. Introducing a new CFSP instrument: the common strategy

In addition to Joint Actions and Common Positions envisaged by the Treaty of Maastricht, the Treaty of Amsterdam foresaw the creation of a new instrument, with the particular aim to foster efficiency in the CFSP, notably by introducing qualified majority voting in this policy area.607 _{Article 13 (ex J.3) TEU provides that:}

The European Council shall decideon common strategies to be implemented by the Union in areas where the Member States have important interests in common” (emphasis added).

605 _{Art. 207(2) EC provides that the HR/SG is appointed by the Council by qualified majority voting.} 606 _{Marquardt (2001: 331). On the policy Unit, see also Declaration 6 of the Amsterdam Treaty, “on the} establishment of a policy planning and early warning unit” within the Secretariat General of the Council.

The Council of the EU shall recommend the Common Strategies (CS) to the European Council,608 _{following the principles and general guidelines previously defined by the}

latter.609 _{As pointed out above, the Commission is entitled by the TEU to be “fully}

associated” with the work carried out in the CFSP. This involvement may include a role in defining and implementing the CS.610 _{The European Parliament may equally}

make recommendations to the Council and it shall also be consulted by the Presidency of the Union on the main aspects and the basic choices of the CFSP; its views shall be duly taken into consideration.611

While aimed at ensuring coherence, the CSs also epitomised further polarisation in EU external relations. This is well illustrated by the implementation of the first CSs that were adopted in relation to Russia and Ukraine.

5.2.2. The Common Strategies on Russia and Ukraine: a limited