How the European Union Manages it External Relations

European Union External Relations Law
The European Union (EU) is a political and economic union among 28 European nations that spans most of the continent. Created following the end of World War II, the EU was initially focused on promoting free trade between member states in order to improve their standards of living and reduce the likelihood of future conflicts. As a result, the European Economic Community (EEC) was created pursuant to the 1957 Rome Treaty in 1958 to facilitate trade between the organization’s founding members (Belgium, Germany, France, Italy, Luxembourg and the Netherlands). The EEC’s name was changed in 1993 to the European Union to reflect the expanded focus of the organization beyond trade to include legal, environmental and human rights issues. Despite the recent withdrawal of Great Britain from the EU, the organization remains stable and enjoys an enormous market for its goods and services.[footnoteRef:2] This paper reviews the relevant literature to describe the EU’s external relations law as well as recent and current trends followed by a summary of the research and important findings concerning these issues in the conclusion. [2: “The EU in Brief” (2017). The European Union. [online] available https://europa.eu/european-union/about-eu/eu-in-brief_en, p. 1.]
Review and Analysis
The EU is unique in the world in terms of its political structure and EU external relations law is based on the principle that the organization can enter into legal relationships with other international organizations and third states.[footnoteRef:3] This status means that the EU is an international actor that enjoys a legal existence comparable to its constituent member states or other international organizations such as the United Nations.[footnoteRef:4] The creation of the EEC in 1958 provided the EU with this level of authority by virtue of the organization’s Common Commercial Policy as well as the ability to engage in international agreements by which the EU could engage in relations with third countries. In this regard, Van Vooren and Wessel note that, “When the 1957 Rome Treaty founded the EEC, this new international organization was explicitly given competence to conduct international trade relations through its Common Commercial Policy (CCP), and to conclude international agreements through which it could associate itself with third countries.” [footnoteRef:5] By 1989, the various bodies of the EC achieved autonomy and permanence with the European Commission, the European Court of Justice and the European Parliament becoming viable actors in their own right. These bodies have played an increasingly significant role in facilitating negotiations between member states as well as the external relations of the EU.[footnoteRef:6] [3: Bart Van Vooren and Ramses A. Wessel (2014). EU External Relations Law: Text, Cases and Materials. Cambridge: Cambridge University Press, p. 2.] [4: Van Vooren and Wessel, p. 2.] [5: Van Vooren and Wessel, p. 2.] [6: Csilla Varga (2016, January 1). “European Union and the Conflicts of the International System: European Diplomacy in a Globalized World.” IUP Journal of International Relations, vol. 10, no. 1, p. 7.]
As an organization, the EU has the second-largest economy in the world (after China), generating $19.2 trillion in 2016. Indeed, the combined economies of the EU and China account for a full one-third of the entire global economy and current indicators suggest the EU’s economy will continue to grow for the foreseeable future.[footnoteRef:7] As a result, the EU has become an increasingly important international actor. For example, Hosen advises that, “The European Union's presence in the world is continuously evolving and expanding. Today, there is virtually no area of international law making where the Union cannot participate - either as an independent international actor or in cooperation with its member states.”[footnoteRef:8] A natural concomitant of this growing importance has been an increase in the complexity of EU’s external relations. In this regard, Hosen cites several salient examples, including the following: [7: Kimberly Amadeo (2017, July 18). “The world’s largest economies.” The Balance. [online] available: https://www.thebalance.com/world-s-largest-economy-3306044, p. 2.] [8: Nadirsyah Hosen (2017). “EU external relations: Law and policy.” Monash University. [online] available: https://www.monash.edu/pubs/2017handbooks/units/LAW4683.html, p. 3.]
· The refugee crisis and the accession negotiations with Turkey;
· The Dutch veto to the EU-Ukraine Association Agreement;
· The negotiation, signature and ratification of Comprehensive Economic and Trade Agreement between the EU and Canada;
· Transatlantic Trade and Investment Partnership trade agreements;
· The incompatibility of intra-EU bilateral investment treaties with EU law; and,
· The relations of the EU with the UK post-Brexit or the rejection of the EU's accession treaty to the European Court of Human Rights by the European Court of Justice.[footnoteRef:9] [9: Hosen, p. 4.]
Over the past half century, the EU’s has also acquired other powers to act in matters such as energy, environmental and foreign security policy development. These attributes have created an enormous political and economic union that makes it a unique and preeminent international actor. In this regard, Van Vooren and Wessel report that, “In political science literature there are a variety of definitions for the nature of the EU in the world, which commonly seek to categorize the ‘kind’ of power the Union exerts in its external relations: civilian power, soft power, normative power and so on.”[footnoteRef:10] Its status in the world has also caused others to regard the EU as a unique entity that defies definition using conventional terms. As Van Vooren and Wessel add, “Other scholars do not seek to classify the EU normatively, and are content with the classification of the EU as quite simply an entity which stands in a category of its own, e.g. a sui generis international actor which cannot be defined with any pre-existing terminology.”[footnoteRef:11] [10: Van Vooren and Wessel, p. 2.] [11: Van Vooren and Wessel, p. 2.]
Regardless of its specific definition, the law of the external relations in the EU represents an issue of significant importance. For example, Eeckhout notes that, “The EU institutions have developed an extensive practice in this area, by concluding many international agreements, by participating in the work of international organizations, and by legislating and regulating on matters of external relations.”[footnoteRef:12] According to Van Vooren and Wessel, though, EU external relations law includes an external as well as an internal dimension: “In its internal dimension it consists of the set of rules which govern the constitutional and institutional legal organization of this legal entity in pursuit of its interests in the world. The external dimension comprises the rules governing the relationship of the EU with the international legal order in which it is active.”[footnoteRef:13] [12: Piet Eeckhout (2011). EU External Relations Law. Oxford: Oxford European Union Law Library. ] [13: Van Vooren and Wessel, p. 1. ]
Given its complexity and enormity, it is not surprising that the application of EU external relations laws has resulted in a wide array of legal questions and issues as shown by the growing body of precedential case law involving external relations in the EU courts.[footnoteRef:14] For example, according to the EU, “The work of the European Union in the area of external relations includes the negotiation of trade agreements, and cooperation on energy, health, climate and environmental issues, often in the context of international organizations such as the United Nations.”[footnoteRef:15] In addition, the EU also maintains various European Neighborhood Policy programs with other countries. Pursuant to the 2009 Lisbon Treaty, the EU’s external relations work was reorganized to include the European External Action Services (EEAS) which provides diplomatic services for the EU with 139 delegations around the world as well as the creation of the office of the High Representative of the Union for Foreign Affairs and Security Policy.[footnoteRef:16] The 2009 Lisbon Treat in particular has been cited as fueling interest in EU external relations law. For instance, according to Cremona, “External relations is currently among the most dynamic areas of EU law, its institutional structures profoundly affected by the Lisbon Treaty.”[footnoteRef:17] [14: Eeckhout, p. 2. ] [15: “External Relations” (2017). EUR-Lex. [online] available: http://eur-lex.europa.eu/summary/chapter/external_relations.html?root_default=SUM_1_CODED%3D28.] [16: “External Relations” (2017). EUR-Lex. [online] available: http://eur-lex.europa.eu/summary/chapter/external_relations.html?root_default=SUM_1_CODED%3D28.] [17: Marise Cremona (2008). Developments in EU External Relations Law. European University Institute. [online] available: http://www.eui.eu/DepartmentsAndCentres/Law/Publications/Books/Cremona/EUExternal RelationsLaw.aspx, p. 1.]
European Union external relations law is by several general objectives (i.e., Articles 3[5] and 21 Treaty on European Union [TEU], Article 205 of the Treaty on the Functioning of the European Union [TFEU] and Article 2 of the Treaty on European Union) as well as a general “set of principles, found in the Treaties and developed by the Court of Justice, which structure the system, functioning and exercise of EU external competences.”[footnoteRef:18] For example, Article 205 of the TFEU states: “The Union's action on the international scene, pursuant to this Part, shall be guided by the principles, pursue the objectives and be conducted in accordance with the general provisions laid down in Chapter 1 of Title V of the Treaty on European Union.” Likewise, Article 3(6) of the TEU states as follows: [18: Cremona, p. 3.]

5. 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 expanded foreign and security policies developed by the EU in recent years have made it possible for the organization to speak with one voice in global affairs and this synergy far outweighs the ability of any single member state on the world stage. In addition, the Lisbon Treaty of 2009 further enhanced these policy areas. At present, the EU foreign and security policies are designed to:
· Preserve peace and strengthen international security;
· Promote international cooperation; and,
· Develop and consolidate democracy and the rule of law, respect for human rights and fundamental freedoms.[footnoteRef:19] [19: “Foreign and Security Policy.” (2017). European Union. [online] available: https://europa.eu/european-union/topics/foreign-security-policy_en, p. 2.]

In some situations, though, external relations remain the responsibility of member states rather than the larger EU organization. For instance, the EU’s constitution was created by the Treaty establishing a Constitution for Europe which was approved on October 29, 2004. Article IV-440, “Scope,” of the EU’s constitution states in part that, “This Treaty shall apply to the European territories for whose external relations a Member State is responsible.”[footnoteRef:20] It is important to note, though, that “the EU is a single legal person, but it is not based on a single constitutive document.”[footnoteRef:21] [20: “A Treaty Establishing a Constitution for Europe” (2004). European Union. [online] available: https://europa.eu/european-union/sites/europaeu/files/docs/body/treaty_establishing_a_constitution _for_europe_en.pdf, p. 18.] [21: Van Vooren and Wessel, p. 32.]

The EU’s Foreign Affairs Council, chaired by the High Representative of the Union for Foreign Affairs and Security Policy is comprised of foreign ministers from all EU member states and has primary responsibility for external relations with other countries.[footnoteRef:22] According to the EU’s Foreign Affairs Council, “The Council adopts measures implementing the EU's common commercial policy together with the European Parliament [including] trade and investment relations, intellectual property rights and foreign direct investment.”[footnoteRef:23] [22: “Foreign Affairs Council” (2017). European Union. [online] available: http://www.consilium.europa.eu/en/ council-eu/configurations/fac/,p. 3.] [23: “Foreign Affairs Council,” p. 4.]

The common factor that provides a cohesive whole to this amalgam of agreements, treaties, bodies and entities is EU law. For example, Howe reports that, “The key feature is EU law, formerly known as Community law - a system of law that penetrates inside the member states and takes precedence over national laws in the domestic courts of the member states.”[footnoteRef:24] The European Court of Justice is the EU’s highest court that is tasked with adjudicating issues between member states as well as interpreting treaties. According to Dinu and Dinu, “The Amsterdam Treaty explicitly conferred jurisdiction on the European Court of Justice to check that Community instruments respect fundamental tights and its functions are constitutional, civil, administrative and arbitration.”[footnoteRef:25] The primary role of the European Court of Justice is to exercise its exclusive powers “to ensure that in the interpretation and application of the Treaty, the law is observed and to decide on the validity of instruments enacted by all other institutions.”[footnoteRef:26] [24: Martin Howe (2016). “EU law – the ECJ and the primacy over national laws. Lawyers for Britain. [online] available: http://www.lawyersforbritain.org/eulaw-ecj-primacy.shtml, p. 2.] [25: Gheorghe Dinu and Diana Dinu (2012, January 1). “The Procedure before European Court of Justice.” Contemporary Readings in Law and Social Justice, vol. 4, no. 1, p. 205.] [26: Dinu and DInu, p. 205.]

Comprised of judges from each member state as well as 11 advocates general, the European Court of Justice “interprets EU law to make sure it is applied in the same way in all EU countries, and settles legal disputes between national governments and EU institutions.” [footnoteRef:27] In addition, individuals, businesses or organizations can use the European Court of Justice in certain cases to litigate against EU institutions if they believe that their rights have been violated.[footnoteRef:28] In addition, Article 40 of the European Court of Justice’s statute includes the following provision: [27: “Overview” (2017). Court of Justice of the European Union. [online] available: https://europa.eu/european-union/about-eu/institutions-bodies/court-justice_en, p. 2.] [28: “Overview,” p. 3.]

Member States and institutions of the Communities may intervene in cases before the Court. The same right shall be open to any other person establishing an interest in the result of any case submitted to the Court, save in cases between Member States, between institutions of the Communities or between Member States and institutions of the Communities. Without prejudice to the second paragraph, the States, other than the Member States, which are parties to the Agreement on the European Economic Area, and also the EFTA Surveillance Authority referred to in that Agreement, may intervene in cases before the Court where one of the fields of application of that Agreement is concerned.
The most common types of legal cases decided by the European Court of Justice are set forth in Table 1 below.




Table 1
Most common types of cases decided by the European Court of Justice
Case type
Description

Interpreting the law (preliminary rulings)
National courts of EU countries are required to ensure EU law is properly applied, but courts in different countries might interpret it differently. If a national court is in doubt about the interpretation or validity of an EU law, it can ask the Court for clarification. The same mechanism can be used to determine whether a national law or practice is compatible with EU law.

Enforcing the law (infringement proceedings)
These types of cases are taken against a national government for failing to comply with EU law. Such cases can be initiated by the European Commission or another EU country. If the country is found to be at fault, it must put things right at once, or risk a second case being brought, which may result in a fine.

Annulling EU legal acts (actions for annulment)
If an EU act is believed to violate EU treaties or fundamental rights, the Court can be asked to annul it – by an EU government, the Council of the EU, the European Commission or (in some cases) the European Parliament. Private individuals can also ask the Court to annul an EU act that directly concerns them.

Ensuring the EU takes action (actions for failure to act)
The Parliament, Council and Commission must make certain decisions under certain circumstances. If they do not, EU governments, other EU institutions or (under certain conditions) individuals or companies can complain to the Court.

Sanctioning EU institutions (actions for damages)
Any person or company who has had their interests harmed as a result of the action or inaction of the EU or its staff can take action against them through the Court.



Source: Adapted from Court of Justice of the European Union Overview, 2017
The EU is also subject to international law in its capacity as an international organization with respect to third state and other international organization relations. In this regard, Van Vooren and Wessel report that, “The EU is bound by the international agreements to which it is a party as well as to the customary parts of international law. As more recent international law shows, it is capable of taking the differences between states and international organizations into account.”[footnoteRef:29] Some salient examples of this capability include the 2011 Articles on the Responsibility of International Organizations and the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations.[footnoteRef:30] [29: Van Vooren and Wessel, p. 30.] [30: Van Vooren and Wessel, p. 30.]

It is clear that the EU has become inextricably involved in external relations worldwide, and coordinated efforts by member states are needed to effect meaningful change or achieve the EU’s objectives. For instance, according to a Communication from the Commission (2006):
Increasingly the EU’s internal policies – for example the environment, energy, competition policy, agriculture and fisheries, transport, the fight against terrorism and illegal migration, dealing with global pandemics – impact on international relationships and play a vital part in the EU’s external influence. Conversely, many of Europe’s internal policy goals depend on the effective use of external policies.[footnoteRef:31] [31: Communication from the Commission, Europe in the World – Some Practical Proposals for Greater Coherence, Effectiveness and Visibility, Brussels (2006), p. 2]

Like corporations in the United States, the EU has a legal personality and status that provide the authority for the organization to conduct internal negotiations between member states as well external relations with third countries. It is in this context that the EU has been classified as an international actor.[footnoteRef:32] As noted above, though, the EU is not founded on a single constitutive document but rather a collection of treaties and agreements as illustrated in Figure 1 below. [32: Van Vooren and Wessel, p. 32.]


Figure 1. Treaty architecture of EU external relations
Source: Van Vooren and Wessel, p. 37
As shown in Figure 1 above, the EU’s legal personality is set forth in Article 47 of the TEU which states: “Article 47 of the Treaty on European Union (TEU) explicitly recognizes the legal personality of the European Union, making it an independent entity in its own right.” The EU’s legal personality means the organization can:
· Conclude and negotiate international agreements in accordance with its external commitments;
· Become a member of international organizations; and,
· Join international conventions, such as the European Convention on Human Rights, stipulated in Article 6(2) of the TEU.
It is also important to note that although the EU enjoys a separate legal personality from its constituent member states, Article 1 of the Treaty on the European Union stipulates that the organization can only take actions in those cases where treaties assign that specific authority. In this regard, Van Vooren and Wessel report that, “While the EU has a fully fledged legal personality to act and contract in the world, it is legally permitted to act only where the Treaties give the EU powers to do so. It is thus a key defining feature of EU external relations that the Union shares external objectives with its Member States, but that it has limited legal capacity to pursue these objectives: the principle of conferral.” [footnoteRef:33] [33: Van Vooren and Wessel, p. 37.]

There is also the so-called “loyalty obligation” on the part of member states in the EU set forth in Article 4(3) of the Treaty on the European Union that obligates them to act in a coordinated fashion towards achieving the EU’s mutual objectives. In addition, the principle of institutional balance among seven institutions (i.e., the European Parliament, the European Council, the Council of Ministers, the European Commission, the Court of Justice of the European Union (CJEU), the European Central Bank and the Court of Auditors) established in Article 13(1) of the Treaty on the European Union, each of which has its own specific responsibilities in the EU’s decision-making processes.[footnoteRef:34] The relationship between these obligations and principles are illustrated in Figure 2 below. [34: Van Vooren and Wessel, p. 37.]




Figure 2. Conferral, institutional balance, loyalty and objectives
Source: Van Vooren and Wessel, p. 38
Conclusion
Although the 21st century has been labeled the “Century of Asia” with China leading the way, the research showed that the European Union has transformed from a group of just six European countries in its early day to become an economic juggernaut with 28 member states that cover much of the European continent today. The research also showed that as the organization highest court, the European Court of Justice is responsible for resolving internal disputes between member states as well as external issues that involve the member states. The EU’s unique status in the world means that it enjoys a separate legal personality from its member states and is authorized to engage in external relations, including negotiations and trade agreements but it is only authorized to act in those cases where various treaties assign this authority. The growth in the EU’s membership and economic clout have also translated into a wide array of initiatives and programs involving third nations and other international organizations, and it is reasonable to conclude that the organization will easily survive Britain’s Brexit and continue to expand its influence on the world stage.



References
Amadeo, Kimberly (2017, July 18). “The world’s largest economies.” The Balance. [online] available: https://www.thebalance.com/world-s-largest-economy-3306044
“A Treaty Establishing a Constitution for Europe” (2004). European Union. [online] available: https://europa.eu/european-union/sites/europaeu/files/docs/body/treaty_establishing _a_constitution _for_europe_en.pdf.
Communication from the Commission, Europe in the World – Some Practical Proposals for Greater Coherence, Effectiveness and Visibility, Brussels (2006).
Dinu, Gheorghe and Dinu, Diana (2012, January 1). “The Procedure before European Court of Justice.” Contemporary Readings in Law and Social Justice, vol. 4, no. 1, pp. 205-209.
Eeckhout, Piet (2011). EU External Relations Law. Oxford: Oxford European Union Law Library.
“Foreign Affairs Council” (2017). European Union. [online] available: http://www.consilium. europa.eu/en/council-eu/configurations/fac/.
“Foreign and Security Policy.” (2017). European Union. [online] available: https://europa.eu/european-union/topics/foreign-security-policy_en.
Nadirsyah Hosen (2017). “EU external relations: Law and policy.” Monash University. [online] available: https://www.monash.edu/pubs/2017handbooks/units/LAW4683.html.
Howe, Martin (2016). “EU law – the ECJ and the primacy over national laws. Lawyers for Britain. [online] available: http://www.lawyersforbritain.org/eulaw-ecj-primacy.shtml.
“Overview” (2017). Court of Justice of the European Union. [online] available: https://europa.eu/european-union/about-eu/institutions-bodies/court-justice_en.
Van Vooren, Bart and Wessel, Ramses A. (2014). EU External Relations Law: Text, Cases and Materials. Cambridge: Cambridge University Press.
Varga, Csilla (2016, January 1). “European Union and the Conflicts of the International System: European Diplomacy in a Globalized World.” IUP Journal of International Relations, vol. 10, no. 1, pp. 7-14.