Research Handbook on the EU’s Common Foreign and Security Policy 1785364073, 9781785364075

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RESEARCH HANDBOOK ON THE EU’S COMMON FOREIGN AND SECURITY POLICY

RESEARCH HANDBOOKS IN EUROPEAN LAW This important series presents a comprehensive analysis of the latest thinking, research and practice across the field of European Law. Organised by theme, the series provides detailed coverage of major topics whilst also creating a focus on emerging areas deserving special attention. Each volume is edited by leading experts and includes specially commissioned chapters from distinguished academics as well as perspectives from practice, providing a rigorous and structured analysis of the area in question. With an international outlook, focus on current issues, and a substantive analysis of the law, these Research Handbooks are intended to contribute to current debate as well as providing authoritative and informative coverage. Forming a definitive reference work, each Research Handbook will be essential reading for both scholars in European law as well as for practitioners and policymakers who wish to engage with the latest thinking and ongoing debates in the field. Titles in this series include: Research Handbook on EU Agriculture Law Edited by Joseph A. McMahon and Michael Cardwell Research Handbook on EU Criminal Law Edited by Valsamis Mitsilegas, Maria Bergström and Theodore Konstadinides Research Handbook on EU Public Procurement Law Edited by Christopher Bovis Research Handbook on EU Consumer and Contract Law Edited by Christian Twigg-Flesner Research Handbook on EU Institutional Law Edited by Adam Łazowski and Steven Blockmans Research Handbook on EU Labour Law Edited by Alan Bogg, Cathryn Costello and A.C.L. Davies Research Handbook on the Law of the EU’s Internal Market Edited by Panos Koutrakos and Jukka Snell Research Handbook on EU Administrative Law Edited by Carol Harlow, Päivi Leino-Sandberg and Giacinto della Cananea Research Handbook on EU Health Law and Policy Edited by Tamara K. Hervey, Calum Alasdair Young and Louise E. Bishop Research Handbook on EU Law and Human Rights Edited by Sionaidh Douglas-Scott and Nicholas Hatzis Research Handbook on EU Tort Law Edited by Paula Giliker Research Handbook on EU Energy Law and Policy Edited by Rafael Leal-Arcas and Jan Wouters Research Handbook on Legal Pluralism and EU Law Edited by Gareth Davies and Matej Avbelj Research Handbook on EU Sports Law and Policy Edited by Jack Anderson, Richard Parrish and Borja García-García Research Handbook on the EU’s Common Foreign and Security Policy Edited by Steven Blockmans and Panos Koutrakos

Research Handbook on the EU’s Common Foreign and Security Policy

Edited by

Steven Blockmans Professor of EU External Relations Law and Governance, University of Amsterdam, the Netherlands and Head of EU Foreign Policy, CEPS, Belgium

Panos Koutrakos Professor of European Union Law and Jean Monnet Professor of EU Law, City, University of London, UK

RESEARCH HANDBOOKS IN EUROPEAN LAW

Cheltenham, UK + Northampton, MA, USA

© Steven Blockmans and Panos Koutrakos 2018 © David Aaron Smith image on cover ‘Martian Attack of 1885’ All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA

A catalogue record for this book is available from the British Library Library of Congress Control Number: 2018946013 This book is available electronically in the Law subject collection DOI 10.4337/9781785364082

ISBN 978 1 78536 407 5 (cased) ISBN 978 1 78536 408 2 (eBook)

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Typeset by Columns Design XML Ltd, Reading

To the memory of Professor Simon Duke, our friend and colleague.

Contents

List of contributors Acknowledgements

ix xi

Introduction Steven Blockmans and Panos Koutrakos

1

PART A

THE LAW OF CFSP/CSDP

1. The position of CFSP/CSDP in the EU’s constitutional architecture Marise Cremona 2. The institutional framework, legal instruments and decision-making procedures Stephan Marquardt 3. Representing the EU in the area of CFSP: legal and political dynamics Hylke Dijkstra and Peter Van Elsuwege 4. ‘The Good, the Bad and the Ugly’: three levels of judicial control over the CFSP Christophe Hillion and Ramses A. Wessel PART B

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65

THE PRACTICE OF CSDP

5. Civilian CSDP missions: ‘the good, the bad and the ugly’ Ana E. Juncos 6. Military CSDP operations: strategy, financing, effectiveness Daniel Fiott 7. Responsibility and liability for CSDP operations Joni Heliskoski 8. Capabilities and CSDP: resourcing political will or paper armies Simon Duke 9. Non-proliferation of weapons of mass destruction Eileen Denza PART C

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89 111 132 154 182

THE NEXUS BETWEEN CFSP/CSDP AND OTHER EXTERNAL POLICIES

10. The law and practice of EU sanctions Christina Eckes 11. The nexus between the CCP and the CFSP: achieving foreign policy goals through trade restrictions and market access Andrea Ott and Guillaume Van der Loo vii

206

230

viii Research handbook on the EU’s common foreign and security policy 12. EU development cooperation and the CFSP: mutual encroachment? Morten Broberg 13. The CFSP–humanitarian aid nexus Mireia Estrada Cañamares 14. The nexus between CFSP/CSDP and the Area of Freedom, Security and Justice Panos Koutrakos 15. European Neighbourhood Policy: CFSP in disguise Steven Blockmans 16. The nexus between Common Foreign and Security Policy and energy policy Theodore Konstadinides and Despoina Mantzari 17. The European Union as a cybersecurity actor Jed Odermatt 18. EU external health security policy and law Anniek de Ruijter PART D

254 276

296 312

331 354 374

REFLECTION ON PERSPECTIVES

19. The European Union as post-national realist power Achilles Skordas 20. Too much, too little, too late? Reflections on law and ethics in the EU’s foreign policy Jan Klabbers 21. The European Union’s foreign policies: an external examination of the capabilities–expectations gap Urfan Khaliq

394

445

459

Conclusions Steven Blockmans and Panos Koutrakos

496

Index

517

Contributors

Steven Blockmans is Professor of EU External Relations Law and Governance at the University of Amsterdam and Head of EU Foreign Policy at CEPS, Brussels. Morten Broberg is Professor of Law at the University of Copenhagen. Marise Cremona is Professor Emeritus at the European University Institute, Florence. Anniek de Ruijter is Assistant Professor of European Law at the Amsterdam Centre for European Law and Governance (ACELG). Eileen Denza was Visiting Professor at University College London, and was Legal Counsellor, Foreign and Commonwealth Office and Counsel to the EC Committee of the House of Lords. Hylke Dijkstra is Assistant Professor in the Department of Political Science, Maastricht University. The late Simon Duke was Professor at the European Institute of Public Administration, Senior Research Fellow at Maastricht University and Visiting Professor at the Mediterranean Academy of Diplomatic Studies, University of Malta. Christina Eckes is Professor of European Law at the University of Amsterdam and Director of the Amsterdam Centre for European Law and Governance (ACELG). Mireia Estrada Cañamares is an Associate at Cuatrecasas, Madrid. Daniel Fiott is Security and Defence Editor at the EU Institute for Security Studies and a Visiting Lecturer at the Brussels School of International Studies, University of Kent. Joni Heliskoski is Director of EU Litigation at the Finnish Ministry for Foreign Affairs. Christophe Hillion is Professor of European Law at the Universities of Oslo and Leiden, and Researcher at the Norwegian Institute of International Affairs (NUPI) and at the Swedish Institute for European Policy Studies (SIEPS). Ana E. Juncos is Reader in European Politics at University of Bristol. Urfan Khaliq is Professor of Public International and European Laws at Cardiff University. ix

x Research handbook on the EU’s common foreign and security policy Jan Klabbers is Academy Professor (Martti Ahtisaari Chair) at the University of Helsinki and Visiting Research Professor at Erasmus School of Law, Rotterdam. Theodore Konstadinides is Professor of Law at the University of Essex. Panos Koutrakos is Professor of European Union Law and Jean Monnet Chair in European Union Law at City, University of London. Despoina Mantzari is Lecturer in Law at University College London. Stephan Marquardt is a Legal Adviser at the European External Action Service. Jed Odermatt is Lecturer in Law at City, University of London. Andrea Ott is Professor of EU External Relations Law and Jean Monnet Chair in EU law at Maastricht University. Achilles Skordas is Professor of International Law at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg. Guillaume Van der Loo is a postdoctoral researcher at Ghent University and a researcher at CEPS, Brussels. Peter Van Elsuwege is Professor of European Union Law at Ghent University and Co-Director of the Ghent European Law Institute (GELI). Ramses A. Wessel is Professor of International and European Law & Governance at the University of Twente.

Acknowledgements

This book is dedicated to the memory of Professor Simon Duke. Simon was one of the pioneers and titans of the CFSP/CSDP scholarship whose work was a point of reference for scholars and practitioners in the field. We were delighted to have him contribute to this Research Handbook. More importantly, Simon was a kind and generous friend. We shall miss him very much. The Editors of this Research Handbook organised a meeting for the contributing authors that was held at City, University of London in April 2016. We are grateful for the funding provided by the Erasmus+ programme of the European Commission (Jean Monnet Chair in EU Law). Many thanks to Douglas Grant and Jackie West for their editorial assistance.

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Introduction Steven Blockmans and Panos Koutrakos

1. THE POLICY AND LEGAL CANVAS It has been nearly a decade since the entry into force of the Lisbon Treaty and the ensuing reorganisation of the legal rules and procedures governing the European Union’s external action. During this period, the Union has carried out its Common Foreign and Security Policy (CFSP) and the Common Security and Defence Policy (CSDP) at a steady pace while revamping its institutional framework. This has been a tumultuous period for the Union in general and its external action in particular. On the back of the eastern enlargement of the Union, the economic, financial and political crisis has challenged the most fundamental assumptions about the European integration process, namely the prosperity of the EU, the solidarity between creditors and debtors, and the viability of the institutional structures of the Eurozone. Furthermore, the decision of the United Kingdom to leave the Union following the referendum of 23 June 2016 has raised fundamental questions about the future of the EU and the cohesion and direction of the integration process. Against this evolving canvass in foro interno, a number of factors in foro externo have raised more acute questions about the design of the CFSP/CSDP. The first is regional: the Arab uprisings, the violent implosion of Libya and Syria, Russia’s annexation of Crimea and destabilisation of Donbas challenge the role of the EU as a security provider and foreign policy actor, and its effectiveness in the Union’s neighbourhood. The second factor is the increasingly broad scope of foreign policy: the prominence of cyber security as a foreign policy imperative and the consternation from the implications of the Ebola crisis have added further to the broad construction of the CFSP/CSDP. Pushed also by the other factors laid out here, this led to a reassessment of the Union’s strategic mainframe (i.e. the 2016 EU Global Strategy on Foreign and Security Policy).1 The third factor is the refugee crisis, which has caught headlines since 2014 and which has placed external border control back at the centre of the political and security agenda of Member States. The implications of this crisis straddle various aspects of the CFSP/CSDP, including the Union’s relations with Turkey, cooperation with NATO, and the effectiveness of the EU’s own operations in the Mediterranean. The fourth factor is terrorism, which continues to provide a thread that brings together different strands of the Union’s policies, including justice and home affairs, as borne out by the phenomenon of foreign fighters, the Paris attacks and the first-ever invocation of Article 42(7) Treaty on European Union (TEU). The fifth factor is the deepening and widening of the EU’s presence as an international economic actor 1 ‘Shared Vision, Common Action: A Stronger Europe’, June 2016, available at https:// eeas.europa.eu/archives/docs/top_stories/pdf/eugs_review_web.pdf.

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2 Research handbook on the EU’s common foreign and security policy in an unstable global trading system. The conclusion of Deep and Comprehensive Free Trade Agreements with Ukraine, Georgia and Moldova, the trade and investment negotiations with Canada, China and other actors, and the response to protectionist tendencies by the United States have underlined the origins and core on which the Union’s foreign policy actorness continues to draw, namely trade and development. The sixth factor, the potential impact of which is gradually emerging, is the prospect of Brexit. Together with the other five dynamics, the need to put in place arrangements for continued cooperation between the EU and the UK on foreign, security and defence matters will shape the future of the CFSP/CSDP. Over the last nine years, the Union has been tweaking the rules, structures and procedures governing the conduct of its CFSP/CSDP. At the substantive level, the amalgamation of the objectives of external action aimed to not only introduce coherence in what the Union would do in the world, but also to reduce the scope for competence disputes. At the institutional level, the adjustment process has been particularly noticeable. The High Representative and the European External Action Service have been settling into place while the Commission and the General Secretariat of the Council have been trying to accommodate to the new modus operandi in ways to offset any loss or sharing of personnel and expertise. The European Council, on the other hand, has increasingly taken charge of crisis management in the realm of foreign and security policy. The European Parliament too has emerged as a confident, ambitious and active player, while new inter-institutional arrangements have been introduced in order to manage the interactions between the relevant actors. In this evolving context, the Court of Justice of the European Union has gradually become more prominent, even if the scope of its role and the implications of its case-law are still not clear. While there is no doubt as to its jurisdiction to patrol the border line between the CFSP/CSDP and the other strands of the Union’s external action, the question has been raised as to whether the integrated nature of the Union’s foreign policy requires that the Court exercise its powers on substantive issues with a CFSP policy dimension too.

2. OBJECTIVES OF THE RESEARCH HANDBOOK Having sketched out the policy and legal canvass against which this book examines the CFSP/CSDP, we would also like to set out the common objectives and threads of our chapters. These are as follows: + to establish and analyse the intrinsic links (institutional, procedural, substantive) between the EU’s legal rules and procedures and the deeply politicised context within which these are applied in the evolving external action of the Union. + to identify legal challenges to the implementation of an integrated approach to EU external action and to gauge their implications for both the legal and policy frameworks of the CFSP. + to examine the extent to which the legal framework and practice in the CFSP is governed by flexibility and contributes to the efficient and effective conduct of the Union’s external action. + to identify new trends emerging from the practice of the CFSP.

Introduction 3 In order to achieve these objectives in a manner that captures the multifarious nature and complexity of the policy, this book has brought together a range of legal scholars, from both EU and international law backgrounds, and international relations experts.

PART A THE LAW OF CFSP/CSDP

1. The position of CFSP/CSDP in the EU’s constitutional architecture Marise Cremona

1. THE INTEGRATION OF THE CFSP/CSDP INTO THE EU CONSTITUTIONAL FRAMEWORK Let us begin with the structure of the Treaties. The provisions on external action in the current TEU and the Treaty on the Functioning of the European Union (TFEU), which revised and replaced the EC Treaty, are now in three locations: a group of general provisions in the TEU which are applicable to all external action; substantive and procedural provisions on the CFSP and CSDP in the TEU; and provisions on all other external policy fields and some general procedural provisions in the TFEU. The CFSP/CSDP is thus, with one exception,1 the only substantive external policy field based in the TEU. This gives a sense of continuity with the position as it had been since the Maastricht Treaty, in which the CFSP was placed in the TEU as what was often referred to as the ‘second pillar’.2 However, this apparent continuity masks a significant change in the place of the CFSP within the EU’s constitutional structure, a change resulting from the Lisbon Treaty and which we are now starting to see take a more concrete shape. In 2008, in the first Kadi case, the Court of Justice referred to ‘the coexistence of the Union and the Community as integrated but separate legal orders, and the constitutional architecture of the pillars’.3 With the merger of the Union and Community into the European Union, which ‘replaced and succeeded’ the European Community,4 the constitutional architecture of the Treaties has been substantially altered. Instead of two Treaties (TEU and EC Treaty), each the foundation for a separate legal order, we have a single Union with a single legal personality, founded on two Treaties (TEU and TFEU) which are closely bound together. The TEU and TFEU are of equal legal value and in their texts are almost always referred to in combination as ‘the Treaties’. As already mentioned, the provisions on external action span the two Treaties and although the main provisions on the CFSP are found in the TEU, some procedural provisions – in particular the procedural rules for entering into external agreements – are found in the TFEU. More importantly, for the first time the Union is given a single external mandate in 1

The exception is Article 8 TEU, which invites the EU to establish a ‘special relationship’ with neighbouring countries. 2 The first pillar was the EC Treaty and the third pillar the provisions in the TEU on Justice and Home Affairs. 3 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation EU:C:2008:461, para 202. 4 Article 1 TEU.

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6 Research handbook on the EU’s common foreign and security policy Article 3(5) TEU encompassing all the EU’s ‘relations with the wider world’. The Union is to uphold its values and interests and protect its citizens by using all the different elements and instruments of its external action. The Union is bound to respect its values, including the rule of law and human rights, in all its external action, including the CFSP/CSDP.5 Not only do the general provisions governing the Union’s external principles, objectives and strategy (in particular Articles 21 and 22 TEU) apply equally to the CFSP and CSDP,6 so too do the general provisions contained in the TFEU, such as environmental protection,7 transparency,8 and the protection of personal data.9 Within this unified system, the CFSP/CSDP is a distinct Union competence and policy field. Its integration into the overall constitutional architecture has raised questions as to the nature of the competence granted to the Union, the specific rules applicable to the CFSP, its relationship with other policy fields, and the scope of the CFSP.10 It is with these questions that this chapter is concerned. 1.1 The Nature of CFSP Competence The categories of Union competence are set out in Articles 2–6 TFEU. Article 2 defines three types of competence (exclusive, shared, and ‘supporting, coordinating and supplementing’ competences) and two policy-specific competences which by implication do not fall within the three general types of competence. The first of the latter is the competence to provide arrangements for the coordination of the Member States’ economic and employment policies. The second is the CFSP: Article 2(4) TFEU provides that the Union shall have competence ‘to define and implement a common foreign and security policy, including the progressive framing of a common defence policy’. It is clear, therefore, that the CFSP is intended as a policy of the Union, distinct from (though in harmony with) the foreign policies of its Member States. It is not simply a coordination of Member State policy, nor is it confined to ‘supporting’ or ‘supplementing’ Member State policy; rather, the Member States are to support the Union’s policy.11 The Union itself is envisaged as a ‘cohesive force in international relations’12 with its own strategic interests.13 At the same time, the CFSP is not designed to replace or pre-empt Member State foreign or defence policy. It is not described as a shared competence and although the Treaties declare that competences designated as neither exclusive (Article 3 TFEU) nor supporting, coordinating and supplementary (Article 6 TFEU) are to be shared,14 it 5

C-263/14 European Parliament v Council EU:C:2016:435, para 47; C-72/15 PJSC Rosneft Oil Company EU:C:2017:236, para 72. 6 Article 23 TEU. 7 Article 11 TFEU. 8 Article 15 TFEU. 9 Article 16 TFEU. 10 See, e.g., RA Wessel, ‘Lex Imperfecta: Law and Integration in European Foreign and Security Policy’ (2016) European Papers 439. 11 Article 24(3) TEU. 12 Article 24(3) TEU. 13 Article 26(1) TEU. 14 Article 4(1) TFEU.

Position of CFSP/CSDP in the EU’s constitutional architecture 7 seems clear from the specific allocation of CFSP competence in Article 2(4) that this residual allocation does not apply. This is supported by the assurance that the CSDP ‘shall not prejudice the specific character of the security and defence policy of certain Member States’ and shall respect the obligations of Member States within NATO,15 as well as by the (non-binding) Declarations 13 and 14, which ‘underline’ that the CFSP will not affect the responsibilities and powers of the Member States in respect of the formulation and conduct of foreign policy. If the CFSP is not a shared competence subject to pre-emption, we should nonetheless consider whether it is possible for exclusive competence to arise on the basis of Article 3(2) TFEU.16 There is nothing in the Treaty structure to exclude its application a priori and in my view, there is no basis on which to do so. However, it is difficult to see how the conditions for exclusivity set out in Article 3(2) could arise in practice in the case of the CFSP: legislative acts are excluded, and a CFSP action could hardly be a necessary precondition for the exercise of an internal competence. Still, although unusual, it is possible to envisage that common rules could be affected within the meaning of Article 3(2),17 for example in the field of data protection.18 The Treaty provisions on competence in both the TEU and TFEU therefore identify the CFSP/CSDP as a Union policy designed to further the Union’s strategic interests and to operate alongside the continuing activity of the Member States, a policy which is singled out from the start as having a specific character which does not fit neatly into existing categories of Union competence. 1.2 ‘Specific Rules and Procedures’ The specificity of the CFSP, indicated by the individualized reference in Article 2(4) TFEU, is manifest in a number of specific institutional and decision-making rules, as well as in its relationship to other policies. The implementation of the CFSP, according to Article 40 TEU, is not to affect the procedures and institutional powers established for the exercise of TFEU-based competences; nor is the implementation of those policies to affect the procedures and the institutional balance of power within the

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Article 42(2) and (7) TEU. According to Article 3(2) TFEU, ‘The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope’. 17 For a recent application of this condition, although outside the scope of the CFSP, see Opinion 3/15 on the conclusion of the Marrakesh Treaty EU:C:2017:114. 18 See text at note 30 for data protection as it applies to the CFSP. Were the Council, acting on the basis of Article 39 TEU, to adopt a decision ‘laying down the rules relating to the protection of individuals with regard to the processing of personal data by the Member States when carrying out activities which fall within the scope of [the CFSP]’ then it is possible to envisage that the conclusion by a Member State of an international agreement with a third country which covered the processing of personal data in the context of CFSP-related activities (such as counter-terrorism) and its transfer to that third country, would ‘affect’ those common rules. 16

8 Research handbook on the EU’s common foreign and security policy CFSP/CSDP.19 No other policy field is subject to a similar rule. We should note first that this ‘non-affect’ clause is even-handed – applying to the interaction in both directions between the CFSP and other policy fields – and second that although it might appear designed to separate the CFSP from other policies, its focus in fact is not on policy content or the nature of the CFSP competence, but rather on procedure and institutional balance. Since the CFSP has a different institutional balance and instrumental toolkit, Article 40 is designed to ensure that each policy field respects its own boundaries and operates within its proper sphere. It therefore gives an explicit articulation to the general principle of choice of appropriate legal basis, which – as the Court has said – has a constitutional significance.20 In the next section we will look more closely at what this might mean. The CFSP/CSDP is subject to ‘specific rules and procedures’.21 These are summarized in Article 24(1) TEU and include the predominant roles of the European Council and Council; the European External Action Service, a ‘functionally autonomous body’ but not an institution, with a mandate to assist the High Representative;22 the importance of the Member States alongside the High Representative in ‘putting into effect’ the CFSP; limitations on the type of act that can be adopted; and the restricted jurisdiction of the Court of Justice.23 They are significant but it is important to emphasize that there is no CFSP ‘carve out’: Article 24(1) TEU does not mean that the CFSP/CSDP is completely exempted from the general rules. Rather it means that the general rules and principles will apply by default, subject to exceptions and specific provisions. We can illustrate this point by looking at two of the principles that are identified in the TFEU as ‘provisions having general application’: transparency and data protection. The principle of transparency found in Article 15(1) TFEU applies to the CFSP; there is no general exclusion but we do find certain exemptions and limits to its application. Thus, since the CFSP excludes the adoption of legislative acts, the requirement found in Article 15(2) TFEU that the Council will meet in public when deliberating and voting on a legislative act, will not be relevant to the CFSP.24 Further, Regulation 1049/2001 governs public access to European Parliament, Council and

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Article 40 TEU. ‘The choice of the appropriate legal basis of a European Union act has constitutional significance, since to proceed on an incorrect legal basis is liable to invalidate such an act, particularly where the appropriate legal basis lays down a procedure for adopting acts that is different from that which has in fact been followed …’ European Parliament v Council (n 5), para 42. 21 Article 24(1) TEU. 22 Article 13(1) and Article 27(3) TEU; Council Decision 2010/427/EU establishing the organisation and functioning of the European External Action Service [2010] OJ L201/30, Article 1. The EEAS is staffed by members of the Council General Secretariat, the Commission, and the diplomatic services of the Member States. 23 On the institutional structure, decision making and role of the Court of Justice, see further Chapters 2 and 4 in this volume. 24 Article 31(1) TEU. 20

Position of CFSP/CSDP in the EU’s constitutional architecture 9 Commission documents and there is no general exclusion for CFSP documents.25 Access is to be refused where disclosure would undermine the protection of the public interest as regards (inter alia) public security, defence and military matters, and international relations; while these grounds may of course apply to some CFSP documents, they are not exclusively directed at the CFSP.26 The rules on access to documents are made applicable to the EEAS by means of the decision establishing the EEAS,27 implemented by a decision of the High Representative.28 A right of protection of personal data is affirmed in Article 16(1) TFEU and this is applicable to the CFSP.29 Article 16(2) then establishes the legal basis for adopting rules on data protection, and these rules are to operate ‘without prejudice’ to the specific rules for the CFSP/CSDP laid down according to the terms of Article 39 TEU. Article 39 TEU does not exempt the CFSP from data protection; rather, it provides for a separate decision-making procedure to operate ‘in accordance with’ Article 16 TFEU and ‘by way of derogation from’ Article 16(2) where data is processed by Member States when acting within the scope of the CFSP. The principle of data protection is maintained but where Member States are concerned it is to be operationalized by way of separate decision-making procedures.30 As far as the Union institutions are concerned, no separate legal basis is created for CFSP-related data processing. Although the current Regulation, adopted before the entry into force of the Lisbon Treaty, applies only within the scope of Community law and therefore not to the CFSP, the decision establishing the EEAS provides that the EEAS will apply the Regulation.31 The 25 Regulation 1049/2001/EC of the European Parliament and of the Council [2001] OJ L145/43. The Preamble para 7 makes it clear that the right of access also applies to documents related to the CFSP. 26 Ibid, Article 4(1). See also Article 9 on the treatment of sensitive documents. See generally P Leino, ‘The Principle of Transparency in EU External Relations Law – Does Diplomatic Secrecy Stand a Chance of Surviving the Age of Twitter?’ in M Cremona (ed.), Structural Principles in EU External Relations Law (Hart Publishing 2018). 27 Article 11 of Council Decision 2010/427/EU establishing the organisation and functioning of the European External Action Service [2010] OJ L201/30. 28 Decision 2011/C 243/08 of the High Representative [2011] OJ C243/16, implements access to documents for the EEAS. The Decision provides that the right of access to EEAS documents will operate ‘according to the principles, conditions and limits’ laid down in Regulation 1049/2001. 29 See also Article 8, Charter of Fundamental Rights. 30 In conformity with this approach, and in contrast to that adopted in relation to access to documents, the General Data Protection Regulation ‘does not apply to the processing of personal data by the Member States when carrying out activities in relation to the common foreign and security policy of the Union’: Regulation 2016/679/EU [2016] OJ L119/1, Preamble para 16 and Article 2(2)(b). No measure has yet been adopted under Article 39 TEU. 31 Regulation 45/2001/EC of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data [2001] OJ L8/1, Preamble para 15 and Article 3(1). Council Decision 2010/42/EU of 26 July 2010 establishing the organisation and functioning of the European External Action Service [2010] OJ L201/30, Article 11(3). Implementing rules were adopted by the High Representative in 2011: Decision 2012/C 308/07 of the High Representative of the Union for Foreign Affairs and Security Policy of 8 December 2011 on the rules regarding data protection [2012] OJ C308/8. See further

10 Research handbook on the EU’s common foreign and security policy proposed replacement for the 2001 Regulation would in any event apply to all activities falling within the scope of Union law.32 As these examples illustrate, the ‘specific rules and procedures’ applicable to the CFSP are concerned with variations in decision making and more broadly with the functions and roles of the different institutions, the ‘specific division of tasks among the institutions of the Union in that field’, as the Court of Justice has put it.33 Thus, within the CFSP the Council may adopt a limited range of legal acts: decisions, but not directives or regulations. The Council’s decisions in the field of the CFSP play a variety of roles; they may relate to operational action,34 define the Union’s position in relation to a third country or issue,35 or conclude an international agreement.36 These decisions are legal acts subject to the procedural requirements set out in the Treaty,37 including the obligation to state the reasons on which they are based.38 As they are not legislative acts they are not adopted according to the ordinary or special legislative procedure and the role of the European Parliament is limited.39 The most significant of these specific rules concerns the role of the Court of Justice. Its jurisdiction over ‘the provisions relating to’ the CFSP and acts adopted on the basis of those provisions is excluded, subject to two exceptions: first, the jurisdiction to monitor compliance with Article 40 TEU and second, jurisdiction to review the legality of decisions providing for restrictive measures against natural or legal persons adopted under CFSP powers.40 The already significant case law on the interpretation of this exclusion of jurisdiction and its exceptions is the focus of Chapter 4 and will not be discussed in detail here.41 We do need, however, to summarize the overall approach of the Court of Justice to the question of its jurisdiction over the CFSP as it demonstrates its view of the place of the CFSP in the EU legal order. First, the Court has stressed that the exclusion of jurisdiction is a derogation which should be interpreted strictly. The ‘rule of general jurisdiction’42 from which Article S Blockmans and C Hillion (eds), EEAS 2.0: A Legal Commentary on Council Decision 2010/427/EU Establishing the Organisation and Functioning of the European External Action Service (SIEPS 2013) 119–121. 32 Proposal for a Regulation of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC COM (2017) 08 final. 33 Rosneft (n 5), para 92. 34 Article 28 TEU. 35 Article 29 TEU. 36 Article 37 TEU. 37 Articles 31 TEU and 218 TFEU. 38 Article 296 TFEU; e.g. Rosneft (n 5), paras 118–125. 39 Legislative acts are excluded by virtue of Article 31 TEU. The use of the so-called ‘flexibility clause’ is also excluded: Article 352(4) TFEU. For further discussion of CFSP instruments, see Chapter 2 in this volume. 40 Article 275 TFEU. 41 See also C Hillion, ‘A Powerless Court? The European Court of Justice and the EU Common Foreign and Security Policy’ in M Cremona and A Thies (eds), The European Court of Justice and External Relations Law – Constitutional Challenges (Hart Publishing 2014). 42 C-658/11 European Parliament v Council EU:C:2014:2025, para 70.

Position of CFSP/CSDP in the EU’s constitutional architecture 11 275 TFEU derogates is contained in Article 19 TEU, which requires the Court to ‘ensure that in the interpretation and application of the Treaties the law is observed’. Thus, general provisions or legislation which apply to, or operate in the context of, CFSP acts are not included among the ‘provisions relating to’ the CFSP which are excluded from the Court’s jurisdiction.43 Second, in addition to its reliance on Article 19 TEU, in particular where an individual challenge to the validity of CFSP acts is concerned, the Court has based its strict interpretation of the derogation on the fundamental principles of the rule of law and effective judicial protection. The rule of law is found among the Union’s values in Article 2 TEU and its application to the CFSP is made clear by Articles 21(1) and 23 TEU; the principle of effective judicial protection is contained in Article 47 of the Charter of Fundamental Rights. As the Court pointed out in a recent judgment, ‘the very existence of effective judicial review designed to ensure compliance with provisions of EU law is of the essence of the rule of law’44 and ‘[w]hile, admittedly, Article 47 of the Charter cannot confer jurisdiction on the Court, where the Treaties exclude it, the principle of effective judicial protection nonetheless implies that the exclusion of the Court’s jurisdiction in the field of the CFSP should be interpreted strictly’.45 This emphasis on the Court’s general jurisdiction and the use of general principles to guide the interpretation of the exclusionary rule provides us with a clear demonstration of what it means to say that the CFSP is an integral part of the general scheme of the Treaties and the Union’s legal order. The procedure for the conclusion of international agreements provides a good example of the application of general and specific procedural rules to the CFSP, and their interrelation. Article 218 TFEU provides a general set of rules for treaty making.46 The general framework also applies to the CFSP insofar as no specific rule is provided; thus, for example, the general rule that the Parliament should be kept informed throughout the treaty-making procedure also applies to CFSP agreements, despite its exclusion from the formal decision-making process.47 On the other hand, specific rules are included for initiating the opening of negotiations where the agreement ‘relates exclusively or principally’ to the CFSP, and for the conclusion of agreements which ‘relate exclusively’ to the CFSP. Negotiations are initiated by a recommendation of the High Representative (rather than the Commission) to the Council, which authorizes the opening of negotiations. Agreements are concluded by the Council acting unanimously and, unlike any other policy field, there is no requirement for the Parliament to consent 43

For example, Article 218(10) TFEU, applicable to CFSP agreements: European Parliament v Council (n 42); see text at note 47 below. See also C439/13 P Elitaliana SpA v Eulex Kosovo EU:C:2015:753, with respect to the operation of the Union’s financial regulations in the context of the CFSP. 44 Rosneft (n 5), para 73. 45 Ibid, para 74. 46 For a detailed analysis, see A Dashwood, ‘EU Acts and Member State Acts in the Negotiation, Conclusion and Implementation of International Agreements’ in M Cremona and C Kilpatrick (eds), EU Legal Acts – Challenges and Transformations (OUP 2018); M Cremona, ‘Who Can Make Treaties? The European Union’ in Duncan Hollis (ed.), The Oxford Guide to Treaties (OUP 2012). 47 European Parliament v Council (n 42), paras 81–86.

12 Research handbook on the EU’s common foreign and security policy or be consulted. Agreements ‘relate exclusively’ to the CFSP for the purposes of the choice of procedure where the CFSP provides the sole legal basis: thus, the procedural legal basis follows the substantive legal basis.48 How, then, is the substantive choice of legal basis made? 1.3 Choice of Legal Basis Before the Lisbon Treaty, the former Article 47 TEU which governed the relationship between the European Community and the CFSP pillar was interpreted to require that if a measure could be adopted under EC Treaty powers, then those powers, and not the CFSP, should be used.49 Under the current Treaties, the Court’s approach is very different and reflects the logic of the single legal order. Article 40 TEU has not been crafted into a CFSP-specific legal basis test. On the contrary, the Court uses its normal legal basis reasoning based on the aim and content of the measure in question, and Article 40 TEU simply makes it clear that the Court does have jurisdiction to determine CFSP legal basis questions. The Court insists that the choice of legal basis should follow the aim and content analysis of the measure rather than be determined by the nature of the CFSP’s specific procedures: ‘it is not procedures that define the legal basis of a measure but the legal basis of a measure that determines the procedures to be followed in adopting that measure’.50 Thus it rejected an argument proposed by the European Parliament that the restricted role for the Parliament in the adoption of CFSP measures should be a reason for favouring a non-CFSP legal basis, especially where individual rights are concerned, simply asserting that this outcome was the consequence of the choice made by the framers of the Lisbon Treaty.51 Similarly, where there appeared to be no institutional disagreement concerning the substantive legal basis of a measure the Court accepted this and did not take it upon itself to question that judgment.52 Most strikingly, where substantive legal basis is contested, the Court has not only applied its standard aim and content test, but has also adopted a ‘predominant purpose’ approach to identifying the aim of an international agreement, which favours a single legal basis where possible. As a result, an international agreement will be based on a CFSP legal basis (Article 37 TEU) where its predominant purpose falls within the scope of the CFSP even though some of its provisions relate to other policy fields.53 Given the breadth of the CFSP,54 this approach to legal basis has important consequences: it means that once a CFSP legal basis has been chosen, it will be hard to challenge. As a rough indication, at the time of writing 75 EU agreements in force in the field of the CFSP are listed in the EU’s database of international agreements.55 48

Ibid, paras 58–60. C-91/05 Commission v Council EU:C:2008:288. 50 C-130/10 European Parliament v Council EU:C:2012:472, para 80. 51 Ibid, para 82. 52 European Parliament v Council (n 42), paras 44–45. The contestation of institutional prerogatives in this case concerned the procedural legal basis. 53 European Parliament v Council (n 5). 54 See below. 55 For examples of the types of agreement concluded under CFSP powers, see text at note 96 below. 49

Position of CFSP/CSDP in the EU’s constitutional architecture 13 The specificities of CFSP decision-making might be expected to produce difficulties in combining a CFSP and non-CFSP legal basis. In practice this is more likely to be the case in the adoption of internal acts, especially where the non-CFSP legal basis requires the ordinary legislative procedure, since the Court seems to regard that procedure as incompatible with CFSP decision-making requiring a unanimous vote in the Council acting alone.56 In the case of international agreements, concluded in both cases by Council decision, the differences (for example the role of the Parliament) do not appear such as to render joint legal bases incompatible. A number of examples of such joint legal bases now exist,57 and the Court, while not expressing a direct view, has proceeded on the basis that there is no barrier in principle.58 This approach to legal basis is evidence of the assimilation of the CFSP into the Union legal order; the choice between the CFSP and other policies is treated in the same way as any other legal basis question. There are specific rules governing its operation which derogate from the norm – such as the limits to the Court’s jurisdiction – and these, as befits derogations, are interpreted strictly. But – and this is the crucial point – the CFSP itself is not a derogation, to be constrained within strict limits. This brings us to the second part of this chapter: a consideration of the proper scope and objectives of the CFSP. Put in terms of choice of legal basis: what are the defining features of the aim and content of a measure which determine that it should be adopted under CFSP powers, as opposed to other external competences? 2. The Objectives and Proper Scope of the CFSP/CSDP Article 24(1) TEU sets out a broad perspective for the Union’s CFSP/CSDP: ‘The Union’s competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union’s security, including the progressive framing of a common defence policy that might lead to a common defence.’ There is no indication here of how we might identify the scope of ‘foreign 56

European Parliament v Council (n 50), para 47. See, for example, Council Decision 2012/308/CFSP on the accession of the European Union to the Treaty of Amity and Cooperation in Southeast Asia [2012] OJ L154/1; Council Decision 2017/434/EU on the signing, on behalf of the Union, and provisional application of the Cooperation Agreement on Partnership and Development between the European Union and its Member States, of the one part, and the Islamic Republic of Afghanistan, of the other part [2017] OJ L67/1; Council Decision 2016/2118/EU on the signing, on behalf of the Union, and provisional application of the Strategic Partnership Agreement between the European Union and its Member States, of the one part, and Canada, of the other part [2016] OJ L329/43; Council Decision 2016/2079/EU on the signing, on behalf of the European Union, and provisional application of the Partnership Agreement on Relations and Cooperation between the European Union and its Member States, of the one part, and New Zealand, of the other part [2016] OJ L321/1. 58 European Parliament v Council (n 5), in which the Court applied the predominant purpose test without suggesting that the possibility of a joint legal basis should be excluded in principle. See also C-658/11 European Parliament v Council EU:C:2014:41, Opinion of AG Bot, para 39, in which the AG envisages the possibility of a joint legal basis, while ultimately finding it unnecessary; and to the same effect C-263/14 European Parliament v Council EU:C:2015:729, Opinion of AG Kokott, paras 52–53. 57

14 Research handbook on the EU’s common foreign and security policy policy’ or ‘the Union’s security’ and how they might be distinguished from other external policies, express or implied. That such an identification and distinction is necessary follows from the need to choose an appropriate legal basis for each measure and from the existence of Article 40 TEU, which emphasizes the constitutionality of this choice.59 2.1 Complementarity An important first step, which also signalled the degree to which the current legal architecture differs from the pre-Lisbon framework, is the clear position taken by the Court rejecting any suggestion that the CFSP should be seen as a general or residual competence, to be used (only) when other competences do not apply. Before the Lisbon Treaty, as has already been mentioned, Article 47 TEU was interpreted as establishing a ‘Community preference’; where a measure fell within the scope of a Community competence, that competence should be used to the exclusion of the CFSP.60 In the first case after the Lisbon Treaty in which the relationship between the CFSP and other competences fell to be considered, albeit indirectly, the legal basis under challenge was Article 215 TFEU, which provides for the adoption of restrictive measures against third countries or individuals following the adoption of a CFSP decision. The case concerned whether the restrictive measures in question were correctly adopted under this combined procedure, or whether the newly introduced Article 75 TFEU, which provides for asset-freezing measures for the purposes of combating terrorism, should have been used instead. In the view of the Advocate General, it was not ‘appropriate’ to view the relationship between Articles 75 and 215 TFEU as being that of lex specialis and lex generalis.61 The Court agreed, holding that the relationship was not that between specific and general competences, but rather one of complementarity.62 Complementarity and the absence of hierarchy or preference is also consistent with the approach of the Court to Article 40 TEU and its use of the standard legal basis tests, mentioned above, including its acceptance that non-predominant, non-CFSP purposes may be subsumed within a CFSP agreement, and that there is no barrier in principle to the possibility of joint CFSP and non-CFSP legal bases.63 While the procedural exceptions are being interpreted strictly, there is no evidence that the Court is trying to 59

As expressed by AG Kokott in C-263/14 European Parliament v Council EU:C:2015:729, para 4, ‘the problem at issue here has considerable political and even constitutional implications because it is necessary to define more sharply the limits of the common foreign and security policy and to delimit it from other European Union policies’. 60 See note 49. 61 C-130/10 European Parliament v Council EU:C:2012:50, Opinion of AG Bot, para 69. The case concerned the choice between Article 75 TFEU (a competence in the field of the Area of Freedom, Security and Justice) and Article 215 TFEU (an external competence to adopt restrictive measures), the latter having a direct link with the CFSP via the prerequisite of a CFSP decision. Acts adopted on the basis of Article 215 are not themselves CFSP acts, but are designed to give effect to a CFSP decision, the latter being a prior condition for the use of Article 215. 62 European Parliament v Council (n 50), para 66. 63 European Parliament v Council (n 5).

Position of CFSP/CSDP in the EU’s constitutional architecture 15 minimize the scope of the CFSP; rather, its judgments suggest that the CFSP occupies a policy space with its own characteristics and legitimacy within the overall EU system. How then, against this background, should the boundaries of that policy space be defined? We can frame our attempt to answer that question in the terms in which the Court of Justice examines the issue of legal basis: on the one hand the aims and objectives of the CFSP, and on the other the content and policy instruments available.64 2.2 Aims and Objectives of the CFSP Prior to the Lisbon Treaty the CFSP possessed its own set of Treaty-defined objectives; as part of the integration of the CFSP into the general framework of the Treaties by the Lisbon Treaty, these objectives were incorporated into the set of general external objectives included in Article 21 TEU and applicable to all external action. The establishment of general external objectives is part of the Lisbon Treaty’s effort to encourage coherence in EU external action,65 and although some external policy fields have specific prioritised objectives,66 the CFSP does not. Advocate General Bot has argued that the first three of the objectives listed in Article 21(2) TEU are ‘among those traditionally assigned’ to the CFSP, and indeed had originally appeared among the CFSP’s objectives in Article 11(1) of the pre-Lisbon Treaty.67 While this is true, there is nothing in the text to set apart any of the objectives listed in Article 21(2) as being particularly concerned with the CFSP, and indeed Article 23 TEU provides that the EU’s CFSP actions shall be guided by each of these objectives without distinction. It is hard, therefore, to see how these Treaty-defined objectives could be used to help determine the scope of the CFSP in relation to other external policies. The Court of Justice has indeed refrained from taking up the Advocate General’s invitation to declare specific objectives as peculiarly linked to the CFSP. It has been able to avoid doing so due to the context of the specific cases coming before it. In these cases the determination has involved, alongside the CFSP, internally based implied external powers and in each case the Court has preferred the explicit external competence over an implied power derived from an internal competence.68 64 ‘[T]he choice of the legal basis of a European Union act, including one adopted in order to conclude an international agreement such as that at issue in this case, must rest on objective factors amenable to judicial review, which include the aim and content of that measure.’ European Parliament v Council (n 5), para 43. 65 Article 21(3) TEU. 66 For example, the eradication of poverty as the ‘primary objective’ of the EU’s development cooperation policy: Article 208(1) TFEU. 67 European Parliament v Council (n 61), Opinion of AG Bot, para 63. The first three objectives in Article 21(2) TEU are (a) to safeguard the values, fundamental interests, security, independence and integrity of the Union; (b) to consolidate and support democracy, the rule of law, human rights and the principles of international law; and (c) to preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders. 68 See in particular cases European Parliament v Council (n 50) and European Parliament v Council (n 5).

16 Research handbook on the EU’s common foreign and security policy In the first of these cases,69 the Court’s argument followed three steps. First, the CFSP-related power (Article 215 TFEU) is explicitly external in nature since it refers to relations with third countries, whereas the objectives of the implied power (Article 75 TFEU) are linked to the establishment of the Area of Freedom, Security and Justice and are thus internal in nature. Second, the measure in question is essentially external since it responds to a threat of international scope (terrorism) and is intended to give effect to a UN Security Council Resolution. Third, although combating terrorism is referred to expressly in Article 75, this can also be an objective of an external measure such as Article 215 since strengthening international peace and security is an explicit objective of the Union’s external action and terrorism is a threat to peace and international security.70 Thus the Court prefers a flexible use of express external powers over the extension of powers which are primarily internal to cover essentially external measures. In the second case, which involved an agreement with Tanzania on the transfer and trial of suspected pirates in the context of an EU naval mission off the coast of Somalia (Operation Atalanta),71 Advocate General Kokott took up an approach previously advocated by Advocate General Bot.72 This was to distinguish between international security, which – they argued – is the proper province of the CFSP, and internal security, as the proper concern of the Area of Freedom, Security and Justice (AFSJ).73 The distinction is at first sight attractive but on reflection it is clear that although it is certainly true that the AFSJ is concerned with the security of the Union, threats to international security will directly or indirectly impact the security of the Union, as exemplified by the phenomenon of ‘foreign fighters’. The Court did not, in any event, espouse this distinction between internal and international security, but preferred instead to link the objectives of the agreement at issue with those of the CSDP mission which it was designed to facilitate; the CSDP character of the agreement was thus made clear. The technique adopted by the Court is not to look in the Treaty for specific CFSP objectives but rather to identify the objectives of the measure and to see whether they can be aligned to the Treaties’ external objectives. Two points may be made here. The first is that this technique works as long as the alternative candidate legal bases are not also part of the Union’s external action: it might be more problematic, for example, were the issue to concern the CFSP versus development cooperation.74 At the time of writing such a case has not been litigated. Second, we can see here the beginnings of an approach which is more evident in the Tanzania Agreement case,75 and which may prove fruitful in the future. This is to address the issue of whether the objectives of a 69

European Parliament v Council (n 50). Ibid, para 61. Note that the Court simply points out that the preservation of international peace and security is an external objective; unlike AG Bot, the Court does not link this objective directly to the CFSP: see in comparison the Opinion of AG Bot (n 67). 71 European Parliament v Council (n 5). 72 In the earlier case, European Parliament v Council (n 42), the choice of legal basis was apparently not contested by the Parliament and the Court accepted the institutional choice of a CFSP legal basis without demur. 73 European Parliament v Council (n 59), Opinion of AG Kokott, paras 61–69. 74 Cf. Commission v Council (n 49). See further Chapter 14. 75 European Parliament v Council (n 5). 70

Position of CFSP/CSDP in the EU’s constitutional architecture 17 measure fall within the scope of the CFSP in two stages. First is the obvious step of ensuring that the objectives of the measure itself coincide with the EU’s general external objectives. Second is the examination of the legal and policy context of the measure in order to identify whether there is a link between the measure and the CFSP, taking into account its place within the EU’s overall policy as well as the international context. Let us examine this point a little more closely. The EU policy context may be derived from other legal acts as well as policy documents.76 The relationship between Article 215 TFEU and the CFSP decision that precedes it allows the Article 215 measure to form part of a broader policy response, identified in the act itself as one of its objectives.77 The Tanzania Agreement case is particularly clear on this point: the agreement was designed to facilitate (and was envisaged in the CFSP act which formed the basis for) the EU’s CSDP Operation Atalanta, and thus it had an organic link to the CFSP. As expressed by the Court: That agreement, concluded pursuant to Article 12 of Joint Action 2008/851, is intimately linked to Operation Atalanta, and consequently, were there to be no such operation, that agreement would be devoid of purpose. … [a]n examination of the aim of the EU-Tanzania Agreement confirms that the procedure … established by the Agreement constitutes an instrument whereby the European Union pursues the objectives of Operation Atalanta, namely to preserve international peace and security, in particular by making it possible to ensure that the perpetrators of acts of piracy do not go unpunished.78

The objectives of the agreement were tied to the objectives of the CSDP mission, and thus to the CFSP/CSDP; the CSDP mission was designed to further one of the EU’s general external objectives: the mission’s CFSP/CSDP basis (while not contested) can be established via the nature of the instrument – a point we will turn to in the next section. In this case, the link was to a CFSP instrument (a Joint Action79) launching a specific operational initiative. In other cases, the link may be to a decision establishing a strategy or policy framework. In addition to CFSP decisions determining operational action (under Article 28 TEU) and defining specific Union positions (under Article 29 TEU), Article 26 TEU envisages that the European Council will adopt decisions identifying the Union’s strategic interests and defining general guidelines for the CFSP, and that the Council will adopt decisions which frame and define the CFSP. These policy-setting decisions adopted on the basis of Article 26 TEU may both indicate specific CFSP objectives and serve as an indication that future implementing decisions would also be adopted as CFSP instruments.80 EU strategy documents may also help to identify the EU’s CFSP objectives on a particular issue, which can then be linked to the 76

For an example, outside the CFSP, of the Court referring to a policy document to establish the link between a Union act and its legal basis, see C-377/12 Commission v Council EU:C:2014:1903, para 42. 77 A point that was alluded to by AG Bot in European Parliament v Council (n 61), para 68. 78 European Parliament v Council (n 5), paras 51 and 54. 79 Joint Actions were a pre-Lisbon CFSP instrument; they are now adopted as decisions under Article 28 TEU. 80 An example of a decision adopted on the basis of Article 26 TEU is Council Decision 2015/2309/CFSP on the promotion of effective arms export controls [2015] OJ L326/56.

18 Research handbook on the EU’s common foreign and security policy objectives of a specific measure to justify using CFSP powers. To take just one example, the EU’s Strategy against Proliferation of Weapons of Mass Destruction,81 while non-binding and therefore not itself providing a legal basis, establishes a set of concrete objectives which have been implemented via a variety of measures; the identification of such an objective within an instrument would clearly indicate that a measure is CFSP related.82 However, care is needed here due to the Union-wide strategic function that such documents may possess. The Union’s Global Strategy, for example, although primarily CFSP in orientation, is designed to ensure coherence in foreign policy overall and contains many references to other external policies such as trade and development cooperation.83 A reference to the Global Strategy would not therefore necessarily suggest that a measure should be identified with the CFSP. As far as the international context is concerned, in both the cases we have discussed here the EU was acting in support of and in accordance with a UN Security Council Resolution. Certainly, the EU is also committed to compliance with the United Nations Charter when acting outside the CFSP and such a link could not be conclusive;84 however, given the security focus shared by the EU’s CFSP/CSDP and the UN Security Council and the explicit reference to the latter in Article 34(2) TEU, such a Security Council context would indicate that the objectives of the measure have a CFSP orientation. In summary, the general external objectives established in the Treaties, precisely because they are general, do not offer much help in assessing whether a measure should be based on CFSP powers. That does not mean that the objective of a measure is irrelevant. The objective of a measure, read in the light of the overall policy context, both the EU context (derived from other legal acts and strategic policy documents) and the international context, will be relevant in determining whether a CFSP legal basis is necessary and/or sufficient. 2.3 Policy Content and Policy Instruments We have seen that, while the aims of a particular instrument may be helpful in assessing whether a CFSP legal basis is appropriate, the CFSP basis thus established will be founded on the EU institutions’ own expression of CFSP objectives in other legal acts or policy documents. The identification of objectives, other than the very broad parameters of Article 21 TEU, can thus give us little guidance in establishing the proper scope of the CFSP from the perspective of the Treaties. In practice the second limb of the classic legal basis test, the content of the measure, is likely to be more helpful in determining the scope of CFSP powers, alongside the type of instrument used. As we have already seen, the type of instrument available is relatively limited: the 81 EU Strategy against proliferation of Weapons of Mass Destruction, adopted by the European Council 12–13 December 2003, Council Document 15708/03. 82 See, for example, Council Decision 2016/51/CFSP in support of the Biological and Toxin Weapons Convention (BTWC) in the framework of the EU Strategy against Proliferation of Weapons of Mass Destruction [2016] OJ L12/50. 83 ‘Shared Vision, Common Action: A Stronger Europe: A Global Strategy for the European Union’s Foreign and Security Policy’ (European External Action Service 2016). 84 Articles 3(5) and 21(1) TEU.

Position of CFSP/CSDP in the EU’s constitutional architecture 19 Treaties provide for the Council and European Council to adopt decisions, and for the conclusion (by Council decision) of international agreements. There is no possibility of adopting legislative instruments. These limits will in themselves constrain the Union’s action under the CFSP, although it should be said that the ‘decision’ may encompass a wide variety of types of action. As far as the substantive content of the CFSP is concerned, on the one hand the Treaties provide some rather general powers: the taking of unilateral positions,85 operational action,86 and the conclusion of international agreements.87 It is difficult to see how the use of these instruments may be substantively constrained under the Treaties other than by the broad principles and objectives applicable to external action in general. Any CFSP-specific constraints result from institutional policy framing, such as the Global Strategy on Foreign and Security Policy,88 rather than the Treaties. On the other hand, we also find some more specific powers: the adoption of data protection rules applicable to the Member States when acting within the scope of the CFSP,89 and the so-called ‘Petersberg tasks’ – tasks deploying civilian and military means including joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace making and post-conflict stabilization.90 Civilian and military missions may be deployed outside,91 or even within,92 the Union. These provisions give an idea of the types of action in which the Union may engage and are explored elsewhere in this volume.93 In practice, and despite the absence of a formal legal lex generalis/specialis rule,94 CFSP instruments are used for a variety of measure and types of action which, unless they fall within the ‘Petersberg tasks’, relate to general foreign policy rather than sectoral issues. These include disarmament and non-proliferation, counter-terrorism, and restrictive measures against third countries and individuals including visa bans, arms embargoes and asset freezing. International agreements include the foreign policy cooperation and political dialogue provisions in broader international agreements,95 as well as agreements which support CSDP missions such as status of forces and status of mission agreements,96 agreements on the participation of third countries in EU 85

Article 29 TEU. Article 28 TEU. 87 Article 37 TEU. 88 ‘Shared Vision, Common Action’ (n 83). 89 Article 39 TEU. 90 Articles 42(1) and 43 TEU. 91 Article 42(1) TEU. 92 Article 222 TFEU. 93 See for example Chapters 5 and 6. 94 See text at note 61 above. 95 For examples, see note 57. 96 For example, Agreement between the European Union and the Islamic Republic of Afghanistan on the Status of the European Union Police Mission in Afghanistan, EUPOL AFGHANISTAN [2010] OJ L294/2; Agreement between the European Union and the Republic of Mali on the status in the Republic of Mali of the European Union military mission to contribute to the training of the Malian Armed Forces (EUTM Mali) [2013] OJ L106/2. 86

20 Research handbook on the EU’s common foreign and security policy missions,97 agreements on the exchange of confidential information,98 and agreements on the transfer and trial of persons suspected of piracy.99 One further influence and practical constraint on the scope and strategic direction of the CFSP/CSDP should be mentioned: the important role given to the Member States. This role includes both policy definition and capabilities. Article 24(2) TEU provides for the definition and implementation of the CFSP ‘within the framework of the principles and objectives of [the Union’s] external action’, but also involving the Member States’ mutual political solidarity, identification of questions of general interest and convergence of Member States’ actions. The importance of the European Council in defining overall strategic objectives is relevant here too; policy framing and priority setting will be strongly influenced by the Member States. And the implementation of policy, especially in the form of CSDP missions, is dependent on Member States’ capabilities: ‘[t]he performance of these tasks shall be undertaken using capabilities provided by the Member States.’100 The Member States undertake to make civilian and military capabilities available to the Union and to increase their capacity to do so,101 but in practice this is an important constraint on EU action.102

3. CONCLUSIONS This chapter has sought to place the CFSP/CSDP within the overall constitutional architecture of the European Union. It makes three main arguments. The first is the assimilation of the CFSP/CSDP into the general Treaty framework and the overall constitutional structure of the Union, as evidenced by the application to the CFSP/CSDP of the general Treaty principles and objectives. The second is that the specific rules and procedures applied to the CFSP relate to decision-making procedures and the role of the institutions. They are significant but do not take the CFSP/CSDP out of the single legal order of the European Union; as exceptions, they are to be interpreted strictly and they apply only within the strict confines of the CFSP/CSDP. The third is that although the CFSP/CSDP is subject to exceptional procedural and institutional rules, the CFSP/CSDP as a policy field is not treated as an exception. There are no signs that the Court is attempting to limit its scope. It possesses its own 97 For example, Participation Agreement between the European Union and the Swiss Confederation on the participation of the Swiss Confederation in the European Union CSDP mission in Mali (EUCAP Sahel Mali) [2016] OJ L105/3; Agreement between the European Union and Australia establishing a framework for the participation of Australia in European Union crisis management operations [2015] OJ L149/3. 98 For example, Agreement between Georgia and the European Union on security procedures for exchanging and protecting classified information [2016] OJ L300/3. 99 For example, Agreement between the European Union and the United Republic of Tanzania on the conditions of transfer of suspected pirates and associated seized property from the European Union-led Naval Force to the United Republic of Tanzania [2014] OJ L108/3. 100 Article 42(1) TEU. 101 Article 42(3) TEU. 102 See further Chapter 8 in this volume.

Position of CFSP/CSDP in the EU’s constitutional architecture 21 policy space and there is no longer a legally mandated preference against recourse to the CFSP/CSDP to achieve Union objectives. Defining the scope of this policy space is not, however, straightforward and as a result a legal challenge to the choice of a CFSP legal basis, once made, is not easy. CFSP objectives as defined by the Treaties are coterminous with the general external objectives of Union external action, and the definition of specific CFSP objectives is thus a matter for the political institutions, in particular the European Council, the EEAS and the Member States. The objectives of a specific measure may be used in their context to identify the appropriate use of a CFSP legal basis but cannot provide real limits to the CFSP as a policy field. These limits are to be found in the instruments at the EU’s disposal, as well as Member State capabilities. It is thus a policy with great potential scope and power, but is heavily dependent on the engagement of the Member States and the forging of political consensus. To these conclusions we may add a final reflection. The somewhat inchoate nature of the CFSP as a policy field, despite its undoubted centrality to EU external action, is in part the result of the fact that the Treaties – even more clearly than before the Lisbon Treaty – give the CFSP two different functions. It is simultaneously a policy field in its own right with its own specific actions, such as arms control, counter-terrorism, restrictive measures and civilian and military missions – actions which need to be coherent with other elements of EU external action – and the means by which the EU defines its overall foreign policy strategies, bringing (in theory) the different sectoral policies such as trade, development, environment and energy under a coherent umbrella. The overall strategic function was made possible by the revision of Article 40 TEU (the former Article 47 TEU), recast in terms of institutional balance and procedural specificity rather than CFSP ‘encroachment’.103 This dual role for the CFSP is encapsulated in the office of High Representative for Foreign Affairs and Security Policy (chair of the Foreign Affairs Council, a Vice-President of the Commission and chair of the Commissioners’ Group on External Action) and the External Action Service, and has most recently found expression in the Global Strategy for the EU’s foreign and security policy, which takes an overall foreign policy perspective while making frequent reference to sectoral fields of action.104 It poses considerable challenges, not least resulting from different institutional cultures and policy orientations.105 The expectation that the CFSP would offer leadership and policy direction despite relatively weaker institutional structures was one of the imbalances in the Lisbon Treaty architecture, and its ability to do so, while improving, is still in question.

103 104 105

See Commission v Council (n 49). ‘Shared Vision, Common Action’ (n 83). See further the chapters in Part III of this volume.

2. The institutional framework, legal instruments and decision-making procedures Stephan Marquardt

1. INSTITUTIONAL ARRANGEMENTS IN CFSP AND CHANGES INTRODUCED BY THE TREATY OF LISBON Since the creation of the CFSP by the Treaty on European Union in 1993, the CFSP has already undergone a number of significant changes through the Treaties of Amsterdam and Nice. Among the significant developments were the creation of the new function of ‘Secretary-General of the Council/High Representative of the Union for the Common Foreign and Security Policy’ (SG/HR), mandated to assist the Presidency of the Council in its tasks, and the development of new CSDP structures, in particular a permanent Political and Security Committee (PSC) with the possibility for the Council to delegate to it decision-making powers for the conduct of EU crisis management operations. These changes reflected arrangements that had previously been agreed to by the European Council (EUCO) and decisions taken by the Council. In addition, a procedure for the conclusion by the EU of international agreements in the domain of the CFSP was introduced.1 The essential modifications introduced by the Treaty of Lisbon (ToL) in the field of external relations and foreign policy, however, stem from the Treaty establishing a Constitution for Europe (TCE), which represented the most ambitious reform project for the EU until now.2 1.1 Institutional Actors The ToL brought a number of very fundamental changes to the institutional framework of the CFSP, in particular the creation of the function of High Representative of the Union for Foreign Affairs and Security Policy and of the European External Action Service. It also strengthened the role of the EUCO by endowing it with a permanent President, conferring on it a decision-making power and elevating it to the rank of an EU institution.

1

This development could be seen as evidence of the EU’s international legal personality; see S Marquardt, ‘The Conclusion of International Agreements under Article 24 of the Treaty on European Union’ in V Kronenberger (ed.), The European Union and the International Legal Order: Discord or Harmony? (TMC Asser Press 2001). 2 For a comprehensive description of its drafting history and detailed commentary of its provisions, see G Amato, H Bribosia and B De Witte (eds), Genesis and Destiny of the European Constitution (Bruylant 2007).

22

Institutional framework, legal instruments and decision-making procedures 23 1.1.1 The European Council For the first time the EUCO is ranked among the institutions of the EU (Article 13(1) TEU). Its powers are set out in detail in Article 15 TEU. The new feature is a permanent President, elected (by qualified majority) for a period of two-and-a half years (Article 15(5) TEU). Of note in relation to the CFSP is the role of the President of the EUCO to ensure the external representation of the Union ‘in this capacity and at his level’ in this domain, however ‘without prejudice to the powers of the High Representative’. The role of the EUCO in the CFSP is further described in Article 26(1) TEU: as before, it is responsible for defining the ‘strategic interests’ and general guidelines of the Union’s CFSP (subparagraph 1).3 The EUCO normally meets every three months but its President may also convene extraordinary meetings if required by the international situation (subparagraph 2), a provision that did not exist before. This possibility has been used in practice quite frequently, notably in the context of the situation in Ukraine and the migration crisis.4 As before the ToL, the EUCO thus maintains a dominant role, while the Council is responsible for the implementation of the political decisions taken at that level (Article 26(2) TEU). What is new is that the EUCO is now endowed with an express decision-making power (Articles 15(4) and 26(1), 1st subparagraph, last sentence TEU).5 This potentially reinforces its role, although it has not availed itself of this possibility until now (except for the adoption of its rules of procedure).6 1.1.2 The Council of the European Union Notwithstanding the role of the EUCO, the Council remains the central decisionmaking body in the CFSP. In accordance with Article 26(2) TEU, it takes the necessary decisions to define and implement the CFSP.7 The Council further has the mandate, together with the High Representative, to ensure the unity, coherence and efficiency of the Union’s action in the CFSP (Article 26(2) TEU). One important innovation introduced by the ToL directly affects the Council and its working methods in the CFSP, namely the responsibility of the HR to chair the Council in its formation of Ministers for Foreign Affairs (FAC) (Article 18(3) TEU).8 As a consequence, the Council decided that the main advisory body in CFSP matters, the 3

As illustrated by the various ‘EU strategies’ adopted by the EUCO (e.g. on Weapons of Mass Destruction, Small Arms and Light Weapons, Counter-Terrorism); the EUCO also ‘welcomed’ the EU ‘Global Strategy’ presented by the HR in 2016 (cf. EUCO conclusions of 28 June 2016, doc. EUCO 26/16, paragraph 20). 4 Since 2010, ten informal or extraordinary meetings of the EUCO have been convened (and two meetings with Turkey). 5 Including, where provided in the Treaties, the power to decide on treaty amendments. The EUCO cannot, however, adopt legislative acts (Article 15(1), last sentence TEU). 6 Decision of 1 December 2009, OJ 2009 L 315/51. 7 In accordance with Article 24(1), 1st subparagraph TEU, the adoption of legislative acts is excluded in the CFSP. 8 The FAC also regularly meets in the composition of defence ministers; this is, however, not an official formation of the Council (cf. the list of Council formations in Annex I of the Council’s Rules of Procedure (Council Decision 2009/937/EU of 1 December 2009, OJ 2009 L 325/35, as amended)).

24 Research handbook on the EU’s common foreign and security policy PSC, as well as most of the Council Working Parties dealing with CFSP matters, would be chaired by representatives of the EEAS appointed by the HR and no longer by representatives of the rotating Presidency of the Council.9 In practice, this allows the EEAS to play a substantive role in ensuring follow-up to initiatives and proposals of the HR at the stage of deliberations in the Council. Particularly in the domain of the CSDP, the EEAS chairmanship of the PSC has created a standing link between the EEAS and the Council, allowing a rapid implementation of CFSP policies, in particular as regards CSDP missions. In his/her capacity as chair of the FAC, the HR may convene extraordinary meetings of the Council ‘in cases requiring a rapid decision’ (Article 30(2) TEU), on his/her own initiative or at the request of a Member State. The HR has used this possibility only on very few occasions.10 The fact that the PSC is now endowed with a permanent chair has reinforced its role as the linchpin of the CFSP; its role is particularly relevant for the CSDP, where it exercises a delegated decision-making power, in accordance with Article 38(3) TEU. 1.1.3 The High Representative The HR has been conferred with an impressive array of institutional functions, powers and responsibilities, considering that the post is occupied by a single person, even if the HR benefits from the support provided by the EEAS. The main functions of the HR are threefold: + As HR, s/he exercises a number of specific responsibilities in the area of the CFSP and CSDP (described further below); this is arguably his/her most important and complex function, as it breaks down into a series of specific responsibilities, some of which are linked while others are distinct from each other. + The second main function is that of chairing (‘presiding over’) the Foreign Affairs Council (Article 18(3) TEU). + The third main function is that of being one of the Vice-Presidents (VP) of the Commission, in charge of external relations outside the CFSP (Article 18(4) TEU). This does not in the current practice cover the specific external portfolios of trade, development cooperation and humanitarian affairs (although this does not follow from the Treaty); however, the HR as VP of the Commission is responsible for coordinating all policy areas concerning external relations or having an external dimension. One specific emanation of this responsibility is the creation of the Commissioner’s Group on External Action (CGEA, see Section 2.2), chaired by the HR, which brings together the core group of Commissioners dealing with the above portfolios, and other Commissioners responsible for EU policies with an external dimension on an ad hoc basis.

9 10

Decision of 1 December 2009, OJ 2009 L 322/28 (Annex II). cf. the extraordinary meeting on the situation in Ukraine (29 January 2015, doc. 5755/15).

Institutional framework, legal instruments and decision-making procedures 25 The specific responsibilities of the HR in the CFSP are as follows: + to ‘conduct’ the CFSP (including the CSDP), i.e. to ‘contribute to its development through proposals’ and to implement the decisions of the Council (Articles 18(2), 27(1) TEU). + to exercise a right of initiative vis-à-vis the Council, including the submission of proposals for legal acts in the CFSP (Article 30(1) TEU); this right is shared with the Member States.11 In specific cases the Treaties foresee joint HR/Commission proposals.12 + in accordance with Article 27(2) TEU, to exercise the external representation of the Union in the area of the CFSP;13 this includes the conduct of the ‘political dialogue’ with third partners, as well as expressing the Union’s position at international organizations and conferences.14 The latter role of the HR is among the major innovations of the ToL as it abolished the role previously exercised by the Presidency of the Council. In agreeing to this fundamental change, the Member States took an essential step towards ensuring more coherent and effective action of the Union on the international scene, one of the stated objectives of the reform process launched with the work on the constitutional treaty,15 which survived in the ToL. 1.1.4 The EEAS: central administration and EU delegations The idea of an autonomous service to support the HR emerged during the process leading to the constitutional treaty.16 Previously, the SG/HR set up by the Treaty of Amsterdam could rely on the services of the General Secretariat of the Council, as well as on the small so-called ‘policy unit’ composed of national seconded diplomats, and thus only had limited resources. While the necessity of creating the EEAS was acknowledged, its institutional position remained controversial until the adoption of the Council decision establishing the EEAS. Eventually the compromise between diverging positions of the Commission and the Member States was to place the EEAS in between 11

One significant change to be noted here is that the Commission no longer has a right of initiative in the CFSP, as was the case pre-Lisbon, and is no longer ‘fully associated’ in the work carried out in this domain. Besides Article 30(1), the right of initiative of the HR is laid down in specific legal bases in the CFSP chapter: Article 33 (appointment of EU special representatives), Article 41(3), 3rd subparagraph (setting up of a CFSP start-up fund) and Article 42(4) (decisions relating to the CSDP, including those establishing a crisis management operation). 12 E.g. Article 215(1) TFEU (proposals for sanctions regulations) and Article 222(3) TFEU (implementing arrangements for the solidarity clause). 13 The Commission, for its part, is responsible for the EU’s external representation in all other domains of its external action (Article 17(1) TEU). 14 In the area of the CFSP, this responsibility of the HR is shared with the President of the European Council, who fulfils this role at the level of Heads of State or Governments (Article 16(7) TEU). For example, the annual EU statement at the General Assembly of the United Nations is delivered by the President of the European Council. 15 See G Grevi in Amato, Bribosia and De Witte (n 2) 801; JC Piris, The Treaty of Lisbon, A Legal and Political Analysis (CUP 2010) 245. 16 Grevi (n 15) 796–800.

26 Research handbook on the EU’s common foreign and security policy the Council and the Commission and to confer on it administrative and budgetary autonomy.17 The EEAS was created by a Council decision adopted on 26 July 2010 on the basis of Article 27(3) TEU18 (‘EEAS Decision’) and officially started functioning on 1 January 2011. This provision also sets out the basic mandate of the EEAS to support the HR in the fulfilment of her mandate and the initial ‘tripartite’ composition of its staff, made up at the beginning from former Council and Commission officials, as well as diplomats from the Member States. The EEAS Decision defines it as ‘a functionally autonomous body of the European Union, separate from the General Secretariat of the Council and from the Commission’ and endowed with ‘the legal capacity necessary to perform its tasks and attain its objectives’ (Article 1.2 of the EEAS Decision). Arguably, this is a rather ambiguous definition: if the EEAS is ‘autonomous’, why also specify that it is ‘separate’ from the General Secretariat of the Council and the Commission? It also seems odd to put the General Secretariat of the Commission on the same plane as the Commission in this context. Furthermore, the autonomy of the EEAS appears to be limited by the qualifier ‘functionally’. While the legal nature and institutional position of the EEAS thus seem somewhat unclear,19 this has not created any obstacles in practice: the EEAS, on account of its legal capacity and budgetary autonomy, functions like a quasi-institution (it notably appears as defendant in staff cases before the Court of Justice of the European Union (CJEU)),20 even though it maintains administrative links with the Commission and its services.21 The main tasks of the EEAS are to support the HR in fulfilling his/her mandates in the framework of the CFSP (Article 2(1) paragraph 1, 1st indent of the EEAS Decision), to support the HR in her capacity as President of the FAC (2nd indent), and to support the HR in his/her capacity as VP of the Commission (3rd indent). It is further provided that the EEAS also assists the President of the EUCO, the President of the European Commission and the Commission in the exercise of their functions in the area of external relations (Article 2.2 of the EEAS Decision). Besides these core tasks, the EEAS Decision provides that one important role of the EEAS is to contribute to the programming of external assistance instruments (Article 9 of the EEAS Decision). 17

On the preparatory work on the EEAS see Piris (n 15) 249–252. Council Decision 2010/427/EU establishing the organisation and functioning of the European External Action Service OJ 2010 L 201/30. 19 On the legal status and capacity of the EEAS, see B van Vooren, ‘A Legal-institutional Perspective on the European External Action Service’ (2011) 48(2) CML Rev 475; see also S Blockmans and C Hillion (eds), EEAS 2.0 – A Legal Commentary on Council Decision 2010/427/EU Establishing the Organisation and Functioning of the European External Action Service (SIEPS 2013) 13–19. 20 It may be noted that the EEAS is considered as an institution for the purposes of the EU Staff Regulations as well as the EU Financial Regulation. 21 The EEAS maintains a number of ‘Service Level Agreements’ with the Commission, pursuant to which the latter provides a number of administrative services to the EEAS (the conclusion of such agreements is expressly foreseen by Article 3(3) of the EEAS Decision). 18

Institutional framework, legal instruments and decision-making procedures 27 The EEAS is placed under the authority of the HR and has a central administration at Headquarters, organized in thematic and geographical departments, departments for administration and budget, and horizontal issues such as inter-institutional relations and legal affairs. The Union delegations in third countries and at international organizations, another significant novelty introduced by the ToL (Article 221 TFEU), are in charge of representing the EU in third states and at international organizations, on all matters falling within EU competence, i.e. not only in CFSP matters. Most of the existing 140 delegations were previously Commission delegations. They now form an integral part of the EEAS, are under the direct authority of the HR (Article 5 of the EEAS Decision) and thus constitute an essential diplomatic tool of the HR to implement EU external policies on the ground as well as to coordinate the action of the EU Member States, in line with Articles 3422 and 35 TEU. In the light of its broad range of tasks, which in principle cover all of the HR’s three main responsibilities, the EEAS is thereby in a unique position to ‘bridge the gap’ between the CFSP and other EU external instruments and support the HR in her efforts to ensure coordination between the instruments at the disposal of the EU.23 The participation of the EEAS in the programming of external relations instruments is particularly relevant in this regard. It should also be noted in this respect that the EEAS actively participates in the preparation and conduct of the regular meetings of the CGEA. As regards the political decision-making process, the EEAS is also in a unique position to shape the latter at the Council, through its chairmanship of Council preparatory bodies. It may furthermore be noted that the Commission departments responsible for the CFSP financing, the implementation of the Instrument contributing to Peace and Stability (IcSP), as well as for the drafting of sanctions regulations are collocated with the EEAS (Service for Foreign Policy Instruments), thus allowing a close cooperation and coordination of various initiatives and proposals on behalf of the HR. 1.1.5 The European Commission With the ToL the Commission has lost its institutional role in the CFSP: it is no longer ‘fully associated’ in its work (ex-Article 27 TEU), and no longer has a right of initiative (ex-Article 22 TEU). This loss is to some extent ‘compensated’ by the role of the HR as VP of the Commission, which translates in practice into a close association of the competent Commission services with the EEAS in the context of the preparation of HR initiatives and proposals in the CFSP. The practice has furthermore shown that the Commission increasingly relies on its financial responsibilities to maintain an influence over the CFSP (see Section 2.2).

22 The HR has the specific mandate to ‘organise the coordination’ of Member States at international organizations (Article 34.1, 1st subparagraph, last sentence); this means in practice that EU delegations at international organizations are in charge of organizing regular coordination meetings of Member States. 23 On the coordinating role of the EEAS see M Gatti, European External Action Service: Promoting Coherence Through Autonomy and Coordination (Brill Nijhoff 2016).

28 Research handbook on the EU’s common foreign and security policy 1.1.6 The European Parliament From a legal point of view, the role of the European Parliament (EP) in the CFSP has not significantly changed from before the ToL. Pursuant to Article 36 TEU, the HR has the obligation to regularly inform the EP on the most important aspects of the CFSP, and to duly take into consideration the views expressed by the EP. One novelty is that EU special representatives may also be called on to provide information to the EP. Politically, however, the EP plays a relatively large role in exercising scrutiny over the CFSP, notably on account of the fact that it wields the budgetary power (together with the Council) over the CFSP budget, but also because it exercises political supervision over the Commission, with the possibility of a vote of no-confidence (Article 17(8) TEU). The EP must also approve the composition of the Commission as a college and Article 17(7) TEU makes particular reference to the HR (in her capacity as VP of the Commission). This political supervisory role of the EP is laid down in some detail in the HR’s declaration on political accountability, made following the adoption of the Council decision establishing the EEAS.24 On the financial side, the inter-institutional arrangement on budgetary discipline sets out practical modalities allowing the EP to supervise the implementation of the CFSP budget.25 In practice, the HR regularly participates in the EP’s plenary sessions, and senior EEAS officials regularly appear before the EP’s Foreign Affairs (AFET) and Security and Defence (SEDE) Committees and other Committees as required to brief its members on specific CFSP developments. In some cases, the EP has also requested the HR to provide information on specific issues.26 Moreover, in accordance with Article 36(2) TEU, the EP may address questions and recommendations to the Council and the HR, and holds a semi-annual debate on the development of the CFSP. The EP’s role in exercising ‘democratic scrutiny’ over the CFSP has recently been affirmed by the CJEU in relation to the obligation of the Council to inform the EP on the negotiation and conclusion of agreements in the CFSP, pursuant to Article 218(10) TFEU.27 1.1.7 EU Special Representatives The possibility for the Council to appoint a ‘special representative’ (EUSR) with a specific political mandate was first introduced by the Treaty of Amsterdam in 1999 and was maintained in the ToL (Article 33 TEU). This is one of the cases where the Council can act by qualified majority (Article 31(2), 4th indent TEU). There are currently 7 EUSRs with a geographical mandate (Bosnia and Herzegovina, Kosovo, Horn of Africa, Sahel, South Caucasus and Georgia, Central Asia, Middle East Peace Process) and one with a thematic mandate (human rights). 24

OJ 2010 C 210/1. OJ 2013 C 373/1. 26 See, for example, the so-called Jacqué Report of 31 March 2015, issued following a request form the EP to the HR to examine various allegations in relation to the EULEX Kosovo mission. 27 Case C-263/14, Tanzania Pirate Transfer Agreement ECLI:EU:C:2016/435, paras 80, 84. 25

Institutional framework, legal instruments and decision-making procedures 29 EUSRs generally have the mandate to implement and coordinate EU policies in relation to the country or region concerned and to provide the Council and PSC with regular reports on their implementation. In situations where an EU CSDP mission is present, the EUSR is also mandated to ensure a coordinated approach. EUSRs can generally be considered as ‘extended arms’ of the HR as they act as representatives of the EU, albeit only in relation to a specific country or region (or for the implementation of a horizontal policy such as human rights).28 Even though EUSRs report to the Council, they are placed under the direct authority of the HR (Article 33, 2nd sentence TEU). As such, they also constitute a foreign policy tool at the disposal of the HR. 1.2 Instruments and Procedures Under the ToL As noted in the previous chapter, the CFSP, despite its integration into the EU’s external action, still remains subject to the limits of Article 40 TEU and uses specific procedures and instruments, as described below. 1.2.1 Legal instruments The two main CFSP (legal) instruments are identified in Article 25 TEU, described in terms unchanged in substance since the Treaty of Maastricht, namely ‘positions’ (formerly the common positions) and ‘operational actions’ (formerly ‘joint actions’).29 One instrument surprisingly not mentioned in Article 25 TEU is the international agreements that may be concluded under Article 37 TEU, using the procedure set out in Article 218 TFEU. The ToL has unified the form of the legal act to be used: all legal acts in the CFSP are now in the form of ‘decisions’,30 which are legal acts within the meaning of Article 288 TFEU, meaning that they are subject to the formal requirements set out in Article 296(2) TFEU. 1.2.2 Voting rule and procedures The general procedure for the adoption of legal acts in the CFSP is laid down in Article 31 TEU. The general voting rule is unanimity (paragraph 1), however the possibility of

28 This may explain why the HR has the exclusive right to propose the appointment of an EUSR to the Council. 29 Article 25 also refers to the ‘general guidelines’, i.e. those determined by the EUCO pursuant to Article 26, the ‘strengthening of the systematic cooperation between Member States in the conduct of policy’, and (as a new element) ‘arrangements for the implementation of the decisions referred to in points (i) and (ii)’ (i.e. decisions on positions and actions). It is not entirely clear what this means in practice and what form such ‘arrangements’ would take. The wording is rather that of a general objective, concrete expressions of which are to be found in other provisions of the CFSP chapter (Articles 32, 34, 35, 46). 30 Pre-Lisbon, the legal acts were denominated ‘common positions’ and ‘joint actions’; in some cases, the Council also resorted to ‘decisions’ (based on ex-Article 13.3).

30 Research handbook on the EU’s common foreign and security policy abstention (and of the so-called constructive abstention) introduced by the Treaty of Amsterdam remains. This possibility in principle also applies to the CSDP.31 The second paragraph of Article 31 TEU sets out the cases where an adoption of legal acts by qualified majority voting (QMV) is possible. Two of the cases (decisions implementing positions or actions and decisions appointing EUSRs) existed pre-Lisbon (3rd and 4th indents). The first indent is seemingly new but existed before in substance: ex-Article 23(2), 1st indent TEU provided that legal acts implementing a so-called common strategy adopted by the EUCO could be adopted by QMV.32 The common strategies no longer exist. However, the EUCO has now been endowed with an express power to adopt decisions on the EU’s strategic interests, i.e. legal acts (Article 26(1), 2nd sentence TEU). Such decisions (which would be comparable to the former common strategies) could then be implemented by Council decisions adopted by QMV. This possibility has not been used until now. One new possibility of QMV has been added, with a rather convoluted wording: the Council may also act by qualified majority on a proposal from the HR when the latter has been requested by the EUCO to submit such a proposal; this request, in turn, can be made by the EUCO on its own initiative, or upon that of the HR. This is in principle based on the same logic as the first indent, i.e. that decisions of the Council may be adopted by qualified majority once the EUCO has taken a basic policy orientation to be implemented by further decisions. Another new element is the possibility for the EUCO to decide on further cases where qualified majority could be applied (paragraph 3). In practice, however, there has not been any case of actual voting by qualified majority in the Council since the Treaty of Amsterdam introduced this possibility. However, the Council regularly adopts implementing decisions in the CFSP, notably in the domain of sanctions, and the recitals of such decisions refer to Articles 29 and 31(2) TEU as legal basis, thereby indicating that they fall under one of the cases where the Treaty in principle allows for adoption by QMV.33 The same practice is followed for decisions appointing EUSRs under Article 33 TEU.34 The rule that qualified majority decisions are not possible in the domain of the CSDP has been maintained (paragraph 4), as well as the simple majority rule for procedural decisions (paragraph 5). Regarding the decision-making procedure, as indicated above (see Section 1.1.3), the HR enjoys a right of initiative in the CFSP and the Council normally acts on the basis of proposals from the HR, even where the specific legal 31

As confirmed by the practice of the Council, where Cyprus used the possibility of constructive abstention on the occasion of the adoption of the Joint Action establishing the EULEX Kosovo crisis management mission. 32 This was done in one case: cf. Joint Action 1999/878/CFSP of 17 December 1999 establishing a European Union Cooperation Programme for Non-proliferation and Disarmament in the Russian Federation OJ 1999 L 331/11, adopted in implementation of the EU Common Strategy on Russia. 33 See, for instance, Council implementing decision (CFSP) 2017/975 of 8 June 2017 implementing Decision (CFSP) 2016/849 concerning restrictive measures against the Democratic People’s Republic of Korea, OJ 2017 L 146/145. 34 E.g. Council Decision (CFSP) 2015/2274 of 7 December 2015 appointing the European Union Special Representative for the Sahel OJ 2015 L 322/44.

Institutional framework, legal instruments and decision-making procedures 31 basis does not expressly foresee a proposal from the HR (e.g. for decisions imposing sanctions on the basis of Article 29 TEU). In one case to date, the Council has acted upon a proposal formally submitted by several Member States, when adopting the decision establishing a permanent structured cooperation (PESCO) in December 2017.35 This is consistent with the wording of the legal basis (Article 46(2) TEU), even if it does not expressly provide for a proposal from Member States: as it is foreseen that the Council must consult the HR before the adoption of the decision, it would seem odd that the proposal itself would emanate from the HR. The fact that Member States submitted the proposal is also consistent with their right of initiative under Article 30(1) TEU. The proposals to be submitted by the HR to the Council in the domain of the CFSP are prepared by the relevant services within the EEAS, including legal scrutiny by the EEAS Legal Department, and subject to internal approval by the HR herself or a member of her cabinet on her behalf, before the formal transmission by the SecretaryGeneral of the EEAS to his/her counterpart in the Council. 1.3 The Common Security and Defence Policy The provisions on the CSDP (Title V, chapter 2, section 2) constitute an entirely new section in the TEU as amended by the ToL. They are in substance based on the corresponding provisions in the TCE. The CSDP continues to form an integral part of the CFSP, but has itself a number of distinct features as compared to the ‘traditional’ CFSP. The ToL had also substantially reinforced the provisions on a common defence, and expressly integrated the European Defence Agency (EDA) into the CSDP institutional structures. 1.3.1 Institutional structures of the CSDP While the Council remains the sole decision-making institution also in the CSDP the latter domain nonetheless has a number of institutional specificities. Within the Council, there are two dedicated advisory bodies, one for military operations (the EU Military Committee), one for civilian missions (the Committee on the Civilian Aspects of Crisis Management); a dedicated Working Party dealing with cross-cutting issues, the Political and Military Group (PMG); one horizontal advisory body, the PSC, to which the Council generally delegates decision-making powers for the ‘political control and strategic direction’ of crisis management operations/missions, in accordance with Article 38(3) TEU. Furthermore, the General Secretariat of the Council still administers the so-called Athena mechanism, set up for the financing of the common costs of EU military operations.36 Within the EEAS, there are dedicated administrative structures that were transferred from the Council Secretariat, one for the military side (the EU military staff – EUMS) 35 Council Decision (CFSP) 2017/2315 of 11 December 2017, OJ 2017 L 331/57 (‘PESCO Decision’). 36 Council Decision (CFSP) 2015/528 of 27 March 2015 establishing a mechanism to administer the financing of the common costs of European Union operations having military or defence implications (Athena) and repealing Decision 2011/871/CFSP OJ 2015 L 84/39.

32 Research handbook on the EU’s common foreign and security policy and one for civilian missions (the Civilian Planning and Conduct Capability – CPCC, in charge of mission support), as well as the Crisis Management and Planning Directorate (CMPD), in charge of overall strategic and horizontal issues in relation to CSDP missions, both civilian and military. Of note in this context is the recent creation by the Council of a specific entity within the EUMS for the operational conduct of non-executive military missions, the Military Planning and Conduct Capability (MPCC).37 Prior to the ToL the Council had set up four EU agencies/entities within the framework of the CSDP, which have all been ‘re-established’ by Council decisions taken after the entry into force of the ToL: the EDA,38 the European Union Satellite Centre,39 the European Union Institute for Security Studies (EUISS),40 and the European Security and Defence College (ESDC).41 In relation to these agencies, the HR continues to exercise the responsibilities previously held by the SG/HR.42 These agencies constitute yet another set of important additional tools at the disposal of the HR to implement and support the CFSP and CSDP. The EDA, in particular, initially set up through a joint action on the basis of ex-Article 14 TEU, inter alia has the mandate to contribute to the development of Member States’ military capabilities, notably for the purpose of EU crisis operations with military means (Article 42(3), 2nd subparagraph TEU), as well as in the framework of PESCO. The general mandate of the EDA is now set out in Article 45 TEU, introduced by the ToL. The research activities conducted by the EUISS, which works in close cooperation with the EEAS’ strategic planning division, provide contributions to the development of long-term EU political strategies. It has notably provided input for the EU Global Strategy issued by the HR in 2016. The EU Satellite Centre has been instrumental in providing analysis of satellite imagery for the purpose of EU crisis management operations. The ESDC provides regular training courses for the personnel from Member States and EU institutions that may be seconded to EU crisis management operations. 1.3.2 Means of implementation of the CSDP 1.3.2.1 CSDP missions The CSDP covers two main areas: (i) the establishment by the EU of crisis management operations or missions, using civilian and military assets put at the disposal of the EU by the Member States (Article 42(1) TEU); (ii) the ‘progressive framing’ of a common Union defence policy including a possible ‘common defence’ (Article 42(2) TEU). The EU has mostly been active in the first 37 Council Decision (EU) 2017/971 of 8 June 2017 determining the planning and conduct arrangements for EU non-executive military CSDP missions, OJ 2017 L 146/133. 38 Decision 2011/411/CFSP of 12 July 2011, OJ 2011 L 183/16. 39 Decision 2014/401/CFSP of 26 June 2014, OJ 2014 L 188/73. 40 Decision 2014/75/CFSP of 10 February 2014, OJ 2014 L 41/13. 41 Decision 2013/189/CFSP of 22 April 2013, OJ 2013 L 112/22. 42 Recital 7 of the EEAS Decision provides: ‘The High Representative, or his/her representative, should exercise the responsibilities provided for by the respective acts founding the European Defence Agency, the European Union Satellite Centre, the European Institute for Security Studies, and the European Security and Defence College.’

Institutional framework, legal instruments and decision-making procedures 33 domain and has developed a solid practice in conducting crisis management operations with a wide range of mandates. Under the ToL, the scope of CSDP missions is defined with more detail and covers more tasks than before. They pursue the general objectives of ‘peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter’ (Article 42(1) TEU); more specifically, the tasks of such missions may include ‘joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, task of combat forces in crisis management, including peace-making and post-conflict stabilisation’ (Article 43(1) TEU). A new aspect is that such missions ‘may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories’. In the context of CSDP missions, it may be noted that pursuant to Article 42(5) TEU and Article 44 TEU, the Council may request a group of Member States to implement such a mission, in accordance with modalities to be agreed in consultation with the HR. This possibility has not been used to date. 1.3.2.2 Article 42(6) TEU and Article 46 TEU: PESCO The provisions on PESCO also take their origin in the draft constitutional treaty.43 While the Treaty of Nice had for the first time introduced the possibility of a reinforced cooperation in the CFSP, the domain of the CSDP was expressly excluded from its scope (ex-Article 27b TEU). The new PESCO provisions are thus a significant step forward in the CSDP. This recognizes the reality that in a Union of 28 Member States, not all of them have the same military capabilities and the will to engage them for the purpose of EU military operations.44 Article 46 TEU has to be read in conjunction with Protocol No 10 annexed to the ToL. While Article 46 TEU lays down the procedural aspects to establish PESCO, the criteria for participation and obligations to be fulfilled by the Member States wishing to take part in PESCO are set out in the Protocol. In essence, the latter defined the threshold for being eligible to participate in PESCO (Article 1 of Protocol No 10 – undertaking to develop defence capacities notably through participation in the EDA and have the capacity to supply rapid deployment battle groups) and imposes on Member States obligations to cooperate in the defence sector, in particular with a view to harmonization and interoperability (Article 2 of Protocol No 10). The EDA is mandated in Article 3 of Protocol No 10 to contribute to this process. As regards procedure, Article 46(1) TEU envisages that the Member States concerned must formally notify the Council as well as the HR of their intention to start PESCO. It may be noted that pursuant to paragraph 2, the Council adopts the formal decision on the establishment of PESCO, identifying the participating Member States,

43

See H Bribosia in Amato, Bribosia and De Witte (n 2) 840–846. Nonetheless, a total of 25 Member States decided to participate in the PESCO (cf. Article 2 of Council Decision 2017/2315 – above n 35). 44

34 Research handbook on the EU’s common foreign and security policy by qualified majority, which may seem surprising in a CSDP context.45 The Council acts after consultation with the HR. Following these procedural requirements, PESCO was launched in accordance with the mandate provided by the EUCO in December 2017.46 1.3.2.3 Enhanced cooperation in the CFSP Provisions on enhanced cooperation outside the CSDP have remained in place but have been moved from the CFSP chapter into the general provisions on enhanced cooperation in the TFEU (Article 329(2) TFEU). This can be seen as one illustration of the integration of the CFSP into the EU institutional framework. Article 329(2) TFEU merely sets out the procedure, and as for PESCO, the scope of the enhanced cooperation in the CFSP is not further defined.47 The only limitation is spelled out in Article 326(1) TFEU, which provides that any such cooperation must be in compliance with the Treaties and Union law. 1.4 The Choice of Legal Basis in the CFSP The legal bases allowing the Council to take decisions in the CFSP (including the CSDP) are the following: Article 28 TEU (operational actions), Article 29 TEU (positions), Article 33 TEU (EUSR), Article 37 TEU (international agreements), Articles 42(4) and 43(2) TEU (CSDP missions), Article 45 TEU (EDA) and Article 46 TEU (PESCO). The specific legal bases for the implementation of the CSDP did not exist before and the ToL thus allows a better delimitation between CFSP and CSDP actions. Nonetheless, their respective scope remains rather wide (as compared to legal bases in the TFEU), and the practice of the Council is not always consistent. For example, post-Lisbon the Council continued to base decisions providing EU support to actions carried out by third entities in the field of disarmament and non-proliferation on Article 26(2) TEU.48 Sometimes, however, the same type of decision was based on Article 28 TEU.49 In its more recent practice the Council now systematically bases such decisions on Article 28 TEU. This recent practice is legally correct as the purpose of Article 26 TEU is only to define the respective powers of the EUCO and the Council and Article 28 TEU remains the legal basis for all CFSP actions 45

This may be explained by the fact that by definition not all Member States participate in PESCO. The decisions subsequently taken by the Council to implement PESCO are, however, taken by unanimity (Article 46(6) TEU). 46 See Council Decision (CFSP) 2017/2315 of 11 December 2017 establishing permanent structured cooperation (PESCO) and determining the list of participating Member States, OJ 2017 L 331/57. 47 It is interesting to note (by contrast to the PESCO) that the decision to start a reinforced cooperation requires unanimity (Article 329(2), 2nd subparagraph TFEU). 48 E.g. Council Decision 2012/421/CFSP of 23 July 2012 on support for the Convention on Biological and Toxic Weapons, OJ 2012 L 196/61 (previously, such decisions were based on ex-Article 13.3). On EU action against the non-proliferation of weapons of mass destruction, see further Chapter 9 in this volume. 49 See Council Decision 2012/422/CFSP of 23 July 2012 on support for a nuclear-free Middle-East and Council Decision 2012/423/CFSP of 23 July 2012 on the non-proliferation of ballistic missiles, OJ 2012 L 196/64, 74.

Institutional framework, legal instruments and decision-making procedures 35 outside the CSDP. Even though Article 28 TEU refers to ‘operational action’ by the EU, it may be noted that Article 29 TEU (definition of ‘positions’ of the EU) is also used for measures which arguably have an operational character, i.e. measures imposing targeted sanctions on individuals and entities.50 Issues of delimitation have also arisen between Article 28 TEU (CFSP) and Articles 42(4) and 43(2) TEU (CSDP missions). The Council recently adopted a decision based on Article 28 on a ‘stabilisation action’ in Mali, involving the deployment of a team of advisers to assist the Malian authorities in strengthening their regional administration.51 As this action had certain features that made it comparable to a CSDP mission,52 there was some debate within the Council on whether Articles 42(4) and 43(2) TEU should not be used as lex specialis for this purpose. By contrast, the Council not long afterwards adopted a decision based on these latter legal bases in order to send a CSDP mission to Iraq with a very similar mandate.53 This may be seen as a reflection of the specificities of the CFSP, where the CJEU in principle has no jurisdiction (with the exception of restrictive measures targeting individuals and control of the limits set by Article 40 TEU). As a consequence, the CJEU has no control over the choice of legal basis by the Council, and the latter has a wider margin of discretion in this regard.54 1.5 The Financing of the CFSP The arrangements for the financing of the CFSP are laid down in Article 41 TEU. The basic principles have not changed since the Treaty of Amsterdam: the general rule is that all CFSP acts entailing expenditure (administrative and operating) are charged to the EU budget, with the exception of operating expenditure arising from operations having military or defence implications (i.e. EU military operations), and where the Council unanimously decides otherwise (Article 41(1) and 2 TEU). For EU military operations, their common costs are charged to the Member States through the so-called Athena mechanism, set up for this purpose by a Council decision (based on Articles 26(2) and 41(2) TEU).55 The ToL has added two new elements: the possibility for the Council to adopt decisions (a) establishing procedures for rapid access to the CFSP budget, in particular for preparatory measures (paragraph 3, subparagraph 1), and (b) the setting-up of a start-up fund (based on Member States’ contributions) for preparatory measures that are not funded from the EU budget (subparagraph 3) (the latter by qualified majority on 50 E.g. Council Decision (CFSP) 2016/849 of 27 May 2016 concerning restrictive measures against the Democratic People’s Republic of Korea and repealing Decision 2013/183/CFSP, OJ 2016 L 141/79. 51 Decision (CFSP) 2017/1425 of 4 August 2017, OJ 2017 L 204/90. 52 The EU also operates a civilian mission (EUCAP Sahel Mali, Council Decision 2014/219/CFSP of 15 April 2014, OJ 2014 L 113/21) and a military CSDP mission with an advisory and training mandate in Mali (EUTM Mali, Council Decision 2014/220/CFSP of 17 January 2013, OJ 2013 L 14/19). 53 Council Decision (CFSP) 2017/1869 of 16 October 2017, OJ 2017 L 266/12. 54 See also Chapter 4 in this volume on judicial control over the CFSP. 55 See note 36.

36 Research handbook on the EU’s common foreign and security policy proposal from the HR). It may be noted that if such a fund is set up, the High Representative would be empowered by the Council to make use of it (subparagraph 4). The Council has not availed itself of these possibilities to date.56 This may on the one hand reflect a lack of ambition on the part of the Member States, which could in principle request the HR to take an initiative in this regard. On the other hand, it may also be explained by a certain reluctance on the part of the Commission to agree to procedures for the financing of the CFSP outside the Financial Regulation. It is noteworthy in this context that the Commission has taken the initiative to propose the setting-up of a European Defence Fund to support the development of defence capabilities of the Member States.57 The activation of Article 42(3) TEU would seem coherent with and complementary to this Commission initiative, and in line with the implementation plan for the security and defence aspects of the EU’s Global Strategy.58

2. THE PRACTICE: A MORE EFFICIENT AND BETTER INTEGRATED CFSP? The first part of this chapter has provided an overview of the institutional actors, instruments and procedures of the CFSP/CSDP and the new institutional arrangements. Eight years after the entry into force of the ToL, three mains question arise: (a) whether they have made the EU’s CFSP more efficient and whether their full potential has been used; (b) whether they have succeeded in better integrating the CFSP in the ‘mainstream’ of the EU’s external action; and (c) what role the Member States continue to play in the CFSP. Providing an exhaustive answer to these questions would exceed the scope of this chapter and is also objectively difficult due to the nature of the CFSP as an ad hoc policy. Only a few examples will therefore be addressed. 2.1 The HR and the EEAS The creation of the function of HR and the EEAS as her support service constitute a historic step forward: in matters of foreign policy, the EU is now represented by one single person appointed for five years and not by a different foreign minister every six months. This clearly makes relations with third partners easier and allows for more continuity. The EEAS itself, being the first proper diplomatic service of the EU, also represents a major advancement, in particular since it supports the HR not only in her foreign policy mandate, but also as VP of the Commission and chair of the FAC. The 56

At present, preparatory measures in the CFSP may be financed on the basis of the Financial Regulation (Article 54(2)(c)). 57 Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Council and the Committee of the Regions on a European Defence Action Plan COM 2016 (950) final. 58 cf. the Implementation Plan on Security and Defence presented by the HR to the Council (Council doc. 14392/16, 14 November 2016, Annex, p. 6, point 11) and the Council Conclusions of 14 November 2016 on implementing the EU’s Global Strategy in the area of security and defence (doc. 14149/16, 14 November 2016, Annex) endorsing the implementation plan.

Institutional framework, legal instruments and decision-making procedures 37 fact that its personnel is partly composed of diplomats from the Member States provides it with relevant diplomatic experience; conversely, the national diplomats present in the EEAS benefit from the experience of long-serving EU officials and gain an understanding of the EU’s institutional functioning. This is mutually beneficial and potentially conducive to more coherence in the EU’s and Member States’ action on the international scene, in accordance with Article 24(2) and (3) TEU. In the same vein, the 140 delegations of the EU which form part of the EEAS and which are placed under the authority of the HR represent an essential tool for the EU’s external action and diplomacy. Whereas the former Commission delegations were essentially involved in the implementation of the EU’s cooperation and development programmes, the new EU delegations not only cover this latter aspect, but are proper diplomatic representations of the EU covering the entire spectrum of economic and political relations with third countries. As they also comprise Commission officials who may receive instructions from their services (albeit under the control of the Head of Delegation, who reports to the HR), they continue to serve for the implementation of EU development policies.59 EU delegations play an equally important role in representing the EU at international and multilateral organizations, in particular at the United Nations. The ToL places particular emphasis on the cooperation between the EU and the UN (cf. Article 21(1), 2nd subparagraph TEU and Article 220 TFEU). It is noteworthy in this regard that following the entry into force of the ToL, the EU succeeded in obtaining an enhanced observer status at the UN General Assembly, allowing the EU to participate in the debates with the same priority as representatives of other groups, notwithstanding its observer status.60 This also allows the EU (for the first time) to intervene in the annual General Debate of the UN General Assembly (UNGA), where EU statements have been delivered by the President of the EUCO since 2012. Furthermore, the ToL has clearly enhanced the range of instruments available for EU action in the CSDP, and the EUCO has requested the competent institutional actors to initiate the necessary actions in implementation of the security and defence aspects of the EU’s Global Strategy.61 The creation of the MPCC is one of the visible results. Another significant development is PESCO, established by the Council in December 201762 in accordance with the mandate from the EUCO.63 As indicated by the HR at the informal meeting of defence ministers on 6–7 September 2017 in Tallinn, PESCO should in substance be ‘output-oriented’ and focus on specific projects submitted by the 59

The Financial Regulation (FR) has been amended to allow a Head of Department to exercise the functions of Authorising Officer by Sub-Delegation to implement Commission development assistance fund (cf. Article 56(2) FR). 60 On the drafting history of this resolution see P Serrano de Haro, ‘Participation of the European Union in the Work of the United Nations: General Assembly Resolution 65/276’, CLEER Working Paper 2014/4. 61 cf. EUCO conclusions of 15 December 2016, doc. EUCO 34/16, para 11. 62 See above n 35. 63 See EUCO conclusions of 22/23 June 2017 (doc. EUCO 8/17, para 8) and of 19 October 2017 (doc. EUCO 14/17, para 13) and Council Decision (CFSP) 2017/2315 of 11 December 2017 establishing permanent structured cooperation (PESCO) and determining the list of participating Member States, OJ 2017 L 331/57.

38 Research handbook on the EU’s common foreign and security policy participating Member States. The PESCO Decision itself does not identify specific projects, but only contains a list of general ‘binding common commitments’ of the participating Member States in line with the PESCO Protocol (No. 10) (Annex to the Decision). Article 4(2)(e) of the PESCO Decision provides that the list of specific projects will be established on the basis of further decisions or recommendations of the Council.64 A number of concrete implementation measures have already been taken: the Council adopted a decision establishing the list of projects as well as a recommendation setting out a roadmap for the implementation of PESCO in March 2018,65 and a decision regarding PESCO governance rules in June 2018.66 An evaluation of the concrete impact of EU CSDP missions and operations would go beyond the scope of this chapter as many EU missions or operations are still ongoing and also cover a number of different mandates.67 However, the fact alone that the EU has given itself the capability to establish such missions or operations that cover a wide range of tasks (civilian missions covering advice, training and capacity building for the police, so-called ‘rule of law’ missions, non-executive military missions providing advice and capacity building for the military, border assistance and monitoring missions, as well as military operations with executive powers, both on land and at sea (operations EUNAVFOR Atalanta and EUNAVFOR MED/Sophia))68 demonstrates that the new instruments and procedures that were gradually put in place following the Treaty of Maastricht allow the EU to be a global actor in foreign policy and security matters, in fulfilment of the EU’s objective to contribute to the maintenance of international peace and security (Article 21(2)(c) TEU). One concrete illustration of the impact of EU missions and operations is that they have fostered EU–UN cooperation in this domain: the UN has in recent years on several occasions requested the EU to provide support through its own crisis management operations and missions and acknowledged EU contributions to international efforts in the maintenance of international peace and security.69 The EU civilian mission in Kosovo (EULEX Kosovo),70 the largest civilian mission until now, is another illustration of CSDP instruments used for the purpose of capacity building in the field of the rule of law, another stated objective of EU external action (Article 21(2)(b) TEU). 64

Pursuant to Article 5 of the PESCO Decision, the HR may also make recommendations regarding the identification and evaluation of individual projects, based on contributions by the EEAS and the EDA. 65 Council Decision (CFSP) 2018/340 of 6 March 2018, OJ 2018 L 65/24; Council Recommendation of 6 March 2018 (2018/C 88/01), OJ 2018 C 88/1. 66 Council Decision (CFSP) 2018/909 of 25 June 2018, OJ 2018 L 161/37. 67 For a detailed overview of EU civilian CSDP missions, see Chapter 5 in this volume. 68 On EU military operations see further Chapter 6 in this volume. 69 E.g. in the framework of the fight against piracy off the coast of Somalia, where the EU is conducting operation EUNAVFOR Atalanta (cf. UN Security Council Resolution 2125 (2013) of 18 November 2013, preambular paragraphs 14 and 17). The EU and the UN are currently finalizing an agreement on mutual cooperation in crisis management operations, which would be the first of its kind. 70 Council Joint Action 2008/124/CFSP of 4 February 2008, OJ 2008 L 42/92 (as amended).

Institutional framework, legal instruments and decision-making procedures 39 The EU, through its new institutional actors, first and foremost through the HR, has also increasingly been able to play a role as facilitator in sensitive political processes in the framework of the UN. Two prominent examples are the dialogue between Serbia and Kosovo concerning a normalization of relations following the declaration of independence by Kosovo, and the negotiations between the five permanent members of the UN Security Council (UNSC) and Germany and Iran, which culminated in the agreement reached in Vienna in July 2015 on the Joint Comprehensive Plan of Action (JCPOA), subsequently endorsed by UNSC Resolution 2231 (2015).71 As regards the instruments and procedures of the CFSP, the ToL has not introduced major innovations. QMV, a possibility that existed before, has not been used to date. It is noteworthy in this context that the Commission recently took the initiative to suggest to the European Council to use this possibility more often.72 The Member States thus appear to continue to treat the CFSP as an intergovernmental process subject to consensus, despite its integration in the realm of the EU’s external action. 2.2 The HR as VP of the Commission One very significant role of the HR is that of being one of the VPs of the Commission, in charge of the external relations of the EU outside the CFSP and for the coordination of all EU policies in the field of external relations (Article 18(4) TEU). This is the function previously exercised by the Commissioner for external relations. The current HR, Federica Mogherini, has reactivated the Commissioner’s group on external action (CGEA), which is chaired by her and normally meets once per month. This group brings together the Commissioners with external portfolios (trade, development cooperation, humanitarian affairs), as well as other Commissioners on an ad hoc basis when external dimensions of internal policies are at stake (e.g. when the group discussed EU action to take with regard to the migration crisis). The CGEA is a concrete manifestation of the so-called ‘double-hat’ of the HR and, even though it has no formal decision-making power, has developed into a useful mechanism on the side of the Commission to ensure a coordinated use of the EU’s external relations instruments.73 Regarding the question of whether the CFSP is better integrated and coordinated with the ‘traditional’ external relations instruments, the picture is a rather mixed one. On the one hand, the ‘double-hat’ of the HR as VP of the Commission has had a number of positive effects. The CGEA referred to above is one of them. The negotiation of international agreements is another one: for comprehensive international 71 For an analysis of the JCPOA and the EU’s role in facilitating the agreement, see S Blockmans and A Viaud, ‘EU Diplomacy and the Iran Nuclear Deal: Staying Power?’, CEPS Policy Insights No 2017-28; see also Chapter 9 in this volume. 72 Communication from the Commission to the European Council, the European Parliament and the Council of 12 September 2018 (COM (2018) 674 final) (‘A stronger global actor: a more efficient decision-making for EU Common Foreign and Security Policy’). The question may be raised in this regard whether this initiative of the Commission is in line with Article 30(1) TEU and the prerogatives of the HR in the CFSP. 73 See further S Blockmans and S Russack, ‘The Commissioner’s Group on External Action – Key Political Facilitator’, CEPS Special Report No 125/2015.

40 Research handbook on the EU’s common foreign and security policy agreements to be concluded with third partners, i.e. agreements covering a substantial CFSP part as well as the ‘classic’ domains of external relations (trade, cooperation, development), the EEAS normally acts as chief negotiator for the EU.74 This follows from the fact that the HR is mandated by the Council to negotiate the CFSP part, the Commission for the remainder of the subject-matters, and acts on behalf of the Commission in her capacity as VP. This is a situation where the double-hat works well in practice and where the EEAS exercises its role as supporting the HR in both these capacities. The HR and the Commission have also regularly made use of their joint right of initiative as generally provided in Article 22(2) TEU: a number of joint HR/Commission ‘communications’ to the Council and the EP have been made since the ToL’s entry into force, covering both CFSP and other aspects of EU external competences. Such joint communications are elaborated and drafted in close cooperation between the EEAS and the competent Commission services.75 In the area of sanctions, where the EU has a long-standing policy of implementing UN sanctions but is also imposing so-called ‘autonomous’ sanctions,76 the new arrangements are also conducive to more efficient decision making. In this domain, the Treaties establish a direct link between the institutional prerogatives of the HR and the Commission, in that Article 215 TFEU provides for joint HR/Commission proposals for the regulations implementing the CFSP decisions adopted by the Council on proposal from the HR. As mentioned above, the competent Commission services are co-located with the EEAS and work hand in hand with the EEAS’ sanctions policy division, ensuring a coordinated approach vis-à-vis the Council. On the other hand, the post-Lisbon institutional practice has shown a certain emergence of turf wars about respective institutional powers. On the side of the Commission, there is a growing tendency to emphasize its financial responsibilities in the CFSP to the detriment of the right of initiative of the HR. This may be explained by the loss of institutional power of the Commission in the CFSP (the Commission no longer being formally ‘fully associated’ in the CFSP). However, this loss should in principle be ‘compensated’ by the fact that the HR is also a member of the Commission; in practice, the latter’s services are closely associated with the preparation of HR initiatives or proposals in the CFSP, and the Commission service directly involved in the CFSP on account of the Commission’s budgetary responsibilities is placed under the authority of the HR in her capacity as VP, and is collocated with the EEAS. 74 To this effect, working arrangements were agreed between the EEAS and the Commission in 2012. The EEAS currently leads negotiations for Association Agreements, Partnership and Cooperation Agreements or similar comprehensive agreements inter alia with Azerbaijan, Chile, Japan, Mercosur, Mexico; negotiations have recently been closed with Armenia and Australia. 75 See, e.g., Joint Communication from the HR and the Commission to the European Parliament and the Council on the EU’s Comprehensive Approach to external conflicts and crises JOIN (2013) 30 final; Joint Communication from the HR and the Commission to the European Parliament and the Council on cybersecurity of the EU, doc. JOIN (2017) 450 final. 76 See the EU Guidelines on implementation and evaluation of restrictive measures (sanctions) in the framework of the EU Common Foreign and Security Policy .

Institutional framework, legal instruments and decision-making procedures 41 The so-called ‘CBSD file’ (capacity building for security and development) illustrates some of these institutional difficulties. While the recent amendment of the IcSP77 would under certain exceptional circumstances cover EU support measures for the benefit of military forces in third countries, it is clear that such measures would not cover the entire range of support needed and that parallel complementary measures would be necessary on the CFSP side. However, the competent Commission services have actively resisted any possible initiative of the HR in this regard (despite requests from the EUCO to the HR),78 on the basis of a rather restrictive interpretation of the limitations imposed by Article 41(2) TEU as regards the use of the CFSP budget for military activities, and on account of the responsibilities of the Commission for the implementation of the EU budget (Article 317 TFEU). The implementation of the so-called ‘integrated approach’79 in the EU’s response to international crises has thus not yet fully materialized. This is still largely due to the fact that CFSP decisionmaking procedures remain in the hands of the Council and PSC and thus the Member States, whereas the Commission has a rather wide measure of discretion in deciding on the priorities in the implementation of EU assistance and cooperation instruments. As a result, on the ground, it may sometimes be difficult to perceive a coherent approach between different EU actors and instruments, even within the CFSP. Hence, while it can be observed that the HR definitely has used her role as VP to the benefit of more coordination between different non-CFSP EU instruments, her role in ensuring more coherence between CFSP instruments, in particular CSDP missions, and other external assistance instruments, has been less clear. 2.3 The Member States in the CFSP One particularity of the CFSP is that its scope is potentially very wide as it may cover ‘all areas of foreign policy and all questions relating to the Union’s security’ (Article 24(1) 1st subparagraph TEU). This can be explained by the nature of foreign policy, which is governed by often unpredictable international developments (cf. Article 28(1) TEU: ‘Where the international situation requires operational action by the Union’). The CFSP is further defined – for the first time – as a ‘competence’ of the EU (Article 24(1) TEU and Article 2(4) TFEU); this confirms that it is a policy that ‘belongs’ to the EU and is separate from the national foreign policies of the Member States. The CFSP (despite the term ‘common’) is thus not a mere intergovernmental process between the

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Regulation (EU) 2017/2306 of the European Parliament and of the Council of 12 December 2017 amending Regulation (EU) No 230/2014 establishing an instrument contributing to stability and peace COM, OJ L 335, 15.12.2017, p. 6. 78 EUCO conclusions of 15 December 2016 (doc. EUCO 34/16), paragraph 11. 79 This concept was introduced by the EU’s Global Strategy on Foreign and Security Policy (cf. part 3.3: ‘An integrated approach to conflicts and crises’). In substance, this concept is largely identical to the previous concept of the ‘comprehensive approach’ of the EU in relation to external conflicts and crises (cf. Council Conclusions of 12 May 2014, welcoming the Joint HR/Commission communication setting out the approach, doc. 9542/14, 17–21).

42 Research handbook on the EU’s common foreign and security policy Member States, as is sometimes still held in academic literature even after the ToL.80 This is confirmed by the obligation of loyal cooperation on the part of the Member States, which must ‘support the Union’s external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity’ (Article 24(3) 1st paragraph TEU). This raises the question of the relation between the CFSP and the Member States’ national foreign policies. Clearly, due to the specific nature of the CFSP, the principle of pre-emption cannot apply, i.e. the Member States do not lose their sovereign power to implement their national foreign policies when the EU defines its CFSP. The CFSP is not a case of shared competence. Rather, the respective competences of the EU and Member States in matters of foreign policy can be qualified as parallel competences, the actions of the Member States only being constrained by their duty of loyalty.81 However, this assessment remains rather theoretical. In practice, the CFSP still operates as if it were an intergovernmental process controlled by the Member States. As seen above, the reality until now is that the possibility of QMV in the CFSP has never been used. Furthermore, in line with the prerogatives of the EC, the major strategic decisions in the CFSP are taken at the level of the Heads of State and government by the EUCO, which acts by consensus unless otherwise provided in the Treaties (Article 15(4) TEU). This was illustrated, for instance, in the case of the sanctions imposed against Russia and Ukraine in 2016 in relation to the situation in Ukraine and the Russian annexation of Crimea, where the EC instructed the HR (EEAS) and the Commission several times to submit proposals for legal acts to the Council.82 However, this is not entirely new as the ToL has not changed the role of the EUCO in the CFSP. As stated at the beginning, major developments in the CFSP, and in particular the CSDP, find their origin in strategic decisions taken by the EUCO, and were subsequently reflected in treaty amendments. Thus, despite the existence of the EU’s CFSP, Member States will continue to take foreign policy initiatives on their own, sometimes in coordination with a few partners, even though they could submit initiatives directly to the Council in order for the EU to take action. This is certainly due to the fact that defining an EU policy on a particular matter requires a decision by unanimity (or even consensus at the level of the EC). This is not contrary to the letter and spirit of the TEU: many important developments in the CFSP/CSDP took place upon prior concerted initiatives of a small group of Member States.83 The recent Franco-German initiative on PESCO is one prominent illustration of this process and the role Member States play in the development of the CFSP. This is also in line with the right of any Member State to submit an initiative to the Council (Article 30(1) TEU). In some cases, some Member States have also operated entirely outside the EU framework, e.g. in relation to the situation in Ukraine and the 80 E.g. P Eeckhout, EU External Relations Law (OUP 2011) 166–168; D Thym, ‘The Intergovernmental Constitution of the EU’s Foreign, Security and Defence Executive’ (2011) 7(3) European Constitutional Law Review 466. 81 S Marquardt and J-C Gaedtke, ‘Vor Art. 23–46 EUV’, in H von der Groeben, J Schwarze and A Hatje (eds), Europäische Unionsrecht (Nomos 2015) para 10. 82 See, e.g., EC conclusions of 16 July 2014 (doc. EUCO 147/14), para 6. 83 For instance, a major impetus for the development of the CSDP emanated from a bilateral meeting between France and the UK in 1998 in St Malo.

Institutional framework, legal instruments and decision-making procedures 43 implementation of the Minsk agreement, where two EU Member States (Germany and France) had regular meetings with the Russian Federation and Ukraine in the so-called Normandy format. However, as long as such actions do not contradict or negatively affect EU measures taken in relation to the same issue, they may in the end prove to be complementary. In the end, the EU does not have any ‘exclusivity’ in dealing with regional or global foreign policy and security issues. Finally, there have also been instances of ‘disloyal’ behaviour by Member States, for example in relation to EU statements to be delivered at international organizations where, despite EU positions agreed in Brussels, some Member States on the ground broke ranks and prevented the EU from expressing a unified position (as was the case following the entry into force of the ToL in New York and more recently in the Human Rights Council in Geneva).84 In such instances, in the absence of any competence of the CJEU to examine possible violations of the Member States’ obligations of loyalty, it remains for the HR to address such difficulties in an informal manner.85

3. CONCLUSION The ToL clearly reflects a high level of ambition as regards the development of the CFSP and CSDP. It has created the HR and the EEAS, and this major innovation has clearly increased the presence and visibility of the EU on the international scene. The HR has a wide range of tools at her disposal to make the EU’s CFSP effective. However, it may be questioned whether it is possible for one single person, despite the support of the EEAS, to exercise the multiple responsibilities linked to this function in a satisfactory manner.86 The CFSP and CSDP still remain subject to separate procedures and to the limits imposed by Article 40 TEU. Ensuring consistency between the CFSP and other external policies of the EU, as mandated by Article 21.3 TEU, therefore remains a challenge. Furthermore, a number of tools and procedures destined to make the CFSP more efficient, such as QMV, already existed before but have never been used. Resorting to the whole range of instruments and procedures provided by the ToL remains in the hands, and is ultimately subject to the political will, of the Member States. Some recent developments, such as those in relation to PESCO, however, appear to indicate that a new impetus will be given to the EU’s CFSP, in particular the CSDP, even if the unanimity rule continues to apply in this latter domain.

84 While the concerns raised in New York by one Member State related to the horizontal issues of delimitation of competences between the EU and its Member States in matters of foreign policy and their external representation, the more recent instances of disunity in Geneva were linked to diverging positions on the substance of the matter, notably regarding Palestine. 85 The issue of the lack of unity among Member States in international fora was raised by the HR at the so-called Gymnich meeting (regular informal gatherings of foreign ministers) on 7–8 September 2017. 86 Some early commentators were outright sceptical in this regard: see S Blockmans and M-L Laatsit, ‘The European External Action Service: Enhancing Coherence in EU External Action?’ in J Cardwell (ed.), EU External Relations Law and Policy in the Post-Lisbon Era (TMC Asser Press 2012) 140: ‘mission impossible’.

3. Representing the EU in the area of CFSP: legal and political dynamics Hylke Dijkstra and Peter Van Elsuwege

1. INTRODUCTION When Serbia and Kosovo started a dialogue to improve bilateral cooperation in March 2011, the EU’s High Representative for Foreign Affairs and Security Policy together with the officials in the European External Action Service (EEAS) were tasked with facilitating the process.1 When the crisis in Ukraine escalated in February 2014, following the earlier Maidan protests, the foreign ministers of France, Germany and Poland flew jointly to Kiev to mediate between the government and the opposition on behalf of the EU.2 When the Joint Comprehensive Plan of Action concerning the nuclear programme of Iran was reached in July 2015, the signatories included Iran, the permanent members of the UN Security Council, Germany and the EU.3 The EU is therefore represented on the international stage by different actors and different actor constellations. This applies not only to highly visible ad hoc attempts at conflict resolution, but also to permanent forms of diplomacy. EU representation, for example, varies across international organizations.4 Within international organizations, it can vary even across the different committees.5 Similarly, the upgrading of the approximately 140 EU delegations after the Treaty of Lisbon (2009) has taken place unevenly. The result is that these EU delegations perform very different functions depending on their location. The EU delegation in Baku is not the same as the one in 1 J Bergmann and A Niemann, ‘Mediating International Conflicts: The European Union as an Effective Peacemaker?’ (2015) 53 Journal of Common Market Studies 957. 2 Federal Foreign Office of Germany, ‘Crisis diplomacy in Ukraine’ (21 February 2014) accessed 4 January 2016. 3 Joint Comprehensive Plan of Action (14 July 2015) accessed 2 March 2017; see also Chapter 9 in this volume. 4 E.g. K Verlin Laatikainen and KE Smith (eds), The European Union at the United Nations: Intersecting Multilateralisms (Palgrave Macmillan 2006); KE Jørgensen (ed.), The European Union and International Organizations (Routledge 2009); KE Jørgensen, S Oberthür and J Shahin (eds), ‘The Performance of the EU in International Institutions’ (2011) 33 Journal of European Integration 599; KE Jørgensen and K Verlin Laatikainen (eds), Routledge Handbook on the European Union and International Institutions: Performance, Policy, Power (Routledge 2013). 5 E.g. within the UN General Assembly, see K Verlin Laatikainen, ‘The EU Delegation in New York: A Debut of High Political Drama’ in D Spence and J Batora (eds), The European External Action Service: European Diplomacy Post-Westphalia (Palgrave Macmillan 2015) tables 10.1 and 10.2.

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Representing the EU in the area of CFSP 45 Beijing.6 EU external representation thus varies significantly and it is not immediately clear why. This chapter attempts to understand how the EU representation in the field of Common Foreign and Security Policy (CFSP) is organized and applied in practice. This question is hardly new. The issue of EU external representation has been at the heart of policy discussions about European foreign policy cooperation since at least the 1970s. And the academic literature discusses inter-institutional politics and the consequences for EU external representation.7 This chapter makes three contributions. First, it seeks to provide a comprehensive overview of EU external representation in the field of CFSP, whereas other publications focus on other areas or specific cases. Second, it approaches the question from a distinctly legal-political perspective, where others have stayed within disciplinary boundaries. Third, it focuses on the Treaty of Lisbon and the post-Lisbon era, whereas most of the scholarship is concerned with the pre-Lisbon institutional set-up of external representation. This chapter starts by discussing EU external representation from a conceptual perspective. It outlines various legal and political dynamics behind the research question who represents the EU. It continues by analysing three instances of external representation: first, multilateral representation of the EU in international organizations and fora; second, bilateral representation of the EU in other countries; third, ad hoc representation and mediation attempts by the EU in international and regional conflicts. The conclusion sheds further light on the interaction between law and politics in understanding EU external representation.

6 R Balfour and K Raik, Equipping the European Union for the 21st Century: National Diplomacies, the European External Action Service and the Making of EU Foreign Policy (Finnish Institute of International Affairs 2013); F Austermann, European Union Delegations in EU Foreign Policy: A Diplomatic Service of Different Speeds (Palgrave Macmillan 2015); Spence and Batora (n 5). 7 E.g. D Allen, ‘“Who Speaks for Europe?”: The Search for an Effective and Coherent External Policy’ in J Peterson and H Sjursen (eds), A Common Foreign Policy for Europe? Competing visions of the CFSP (Routledge 1998); S Meunier and K Nicolaidis, ‘Who Speaks for Europe? The Delegation of Trade Authority in the EU’ (1999) 37 Journal of Common Market Studies 477; I Govaere, J Capiau and A Vermeersch, ‘In-Between Seats: The Participation of the European Union in International Organisations’ [2004] European Foreign Affairs Review 155; H Dijkstra, ‘EU External Representation in Conflict Resolution: When Does the Presidency or the High Representative Speak for Europe?’ (2011) 15 European Integration online Papers (EIoP) accessed 24 February 2017; R Bengtsson and D Allen, ‘Exploring a Triangular Drama: The High Representative, the Council Presidency and the Commission’ in G Mueller-Brandeck-Bocquet and C Rueger (eds), The High Representative for the EU Foreign and Security Policy: Review and Prospects (Nomos 2011); E da Conceição-Heldt and S Meunier, ‘Speaking With a Single Voice: Internal Cohesiveness and External Effectiveness of the EU in Global Governance’ (2014) 21 Journal of European Public Policy 961; C Kaddous (ed.), The European Union in International Organisations and Global Governance (Hart Publishing 2015).

46 Research handbook on the EU’s common foreign and security policy

2. EU EXTERNAL REPRESENTATION IN LAW AND POLITICS EU external representation can be studied through the disciplinary lenses of law and politics. The EU Treaties contain various legal provisions determining which actor represents the EU on which issue. Similarly, from a political perspective, one can examine the leadership of actors in EU external representation, their effectiveness and instances of bureaucratic politics. Rather than analysing legal rules and political dynamics separately, however, we study how they interact. The legal provisions in the Treaties are the result of political choices and many legal rules are codifications of previous norms and practices. Furthermore, political actors tend to use legal provisions to their advantage. This conceptual section starts with some historical background before outlining key legal aspects of the Treaty of Lisbon. It continues by pointing out how political science theories complement legal insights. 2.1 Development of EU External Representation Prior to the Lisbon Treaty The first instances of external representation pre-date the establishment of the European Economic Community (EEC) with the Treaty of Rome in 1958. Jean Monnet, as President of the High Authority of the European Coal and Steel Community (ECSC), was keenly aware of the importance of transatlantic relations and opened an ECSC information office in Washington, DC in 1954.8 Over the next 50 years, the European Commission continued this practice and opened delegations around the world. Diplomatic relations were initially established with important trading partners and countries receiving development assistance. This reflected the EEC’s competence in external commercial policy as well as the Commission’s role in development cooperation following the Lomé agreements of the 1970s. By the time that the Treaty of Lisbon entered into force in 2009, the Commission had more than 130 delegations in non-member countries and international organizations.9 In parallel to the external representation of the EEC, there was a need to represent European Political Cooperation (EPC) established in 1970. The administration of EPC had been delegated to the six-monthly rotating Presidency. It was put in charge of external representation with the London Report of 1981.10 This arrangement was formally confirmed with the Single European Act (SEA).11 With the Treaty of Maastricht of 1993, EPC transformed into the CFSP as a separate ‘pillar’ of the EU. 8

European Commission, Taking Europe to the World: 50 Years of the European Commission’s External Service (Office for Official Publications of the European Communities 2004). 9 M Bruter, ‘Diplomacy Without a State: The External Delegations of the European Commission’ (1999) 6 Journal of European Public Policy 183; D Spence, ‘The European Commission’s External Service’ (2004) 19 Public Policy and Administration 61; European Commission (n 8); C Carta, The European Union Diplomatic Service: Ideas, Preferences and Identities (Routledge 2012); E Drieskens, ‘What’s in a Name? Challenges to the Creation of EU Delegations’ (2012) 7 The Hague Journal of Diplomacy 51; Austermann (n 6). 10 S Nuttall, European Political Cooperation (Clarendon Press 1992); S Nuttall, European Foreign Policy (OUP 2000); ME Smith, Europe’s Foreign and Security Policy: The Institutionalization of Cooperation (CUP 2004). 11 Single European Act [1987] OJ L169, Art. 30.

Representing the EU in the area of CFSP 47 Concomitantly, a purely intergovernmental system of cooperation became part of a legal system established by Treaty law.12 This was also visible with respect to external representation. Article J.5 of the Maastricht Treaty on European Union (TEU) not only articulated the role of the rotating Presidency and the supportive role of the incoming and preceding Presidencies under the so-called ‘Troika’ formula, but also explicitly provided that ‘the Commission shall be fully associated in these tasks’.13 Every subsequent amendment of the Treaties strengthened the incorporation of the CFSP in the EU legal order, while retaining its specific legal rules and institutional mechanisms. The Treaty of Amsterdam of 1999 significantly developed the specific CFSP toolbox through the introduction of new instruments such as Common Strategies, Common Positions and Common Actions. Moreover, the revised Article 11 TEU clarified that the CFSP was no longer to be defined and implemented by ‘the Union and its member states’ but by the Union alone.14 This also implied significant amendments to the external representation of the CFSP. Even though the Council Presidency retained its formal representative function in this area, it was to be assisted by the SecretaryGeneral of the Council, who exercised the new function of ‘High Representative for the Common Foreign and Security Policy’.15 It is no secret that the first High Representative, Javier Solana (1999–2009), often overshadowed the foreign ministers of the Presidency.16 He was assisted by a Policy Unit as well as the officials of the Council Secretariat. The Council could also appoint Special Representatives with a mandate in relation to particular policy issues.17 Last but not least, the EU acquired the capacity to conclude international agreements in the field of CFSP, leading to a (largely academic) debate about the existence of the Union’s international legal personality besides that of the European Community, which was explicitly foreseen in the EC Treaty.18 This discussion had already lost much of its practical relevance after the Treaty of Nice clarified that international agreements in the area of CFSP ‘shall be binding on the institutions of the Union’. The abolition of the pillar structure and the express grant of a single legal personality to the Union with 12

See: R Gosalbo Bono, ‘Some Reflections on the CFSP Legal Order’ (2016) 43 CML Rev

341. 13 PJ Kuijper, J Wouters, F Hoffmeister, G De Baere and T Ramopoulos, The Law of EU External Relations: Cases, Materials and Commentary on the EU as an International Legal Actor (OUP 2013) 25. 14 As argued by Bono, ‘the deletion of the reference to Member States meant that the Treaty of Amsterdam discarded this intergovernmental trait of the CFSP introduced by the Maastricht Treaty’ (n 12) 348. 15 Art. 18(3) TEU (Amsterdam version); H Dijkstra, ‘The Council Secretariat’s Role in the Common Foreign and Security Policy’ (2008) 13 European Foreign Affairs Review 149. 16 Dijkstra (n 7). 17 Art. 18(5) TEU (Amsterdam version). 18 With regard to this academic discussion, see e.g. U Everling, ‘Reflections on the Structure of the European Union’ (1992) 29 CML Rev 1053; A von Bogdandy, ‘The Legal Case for Unity: The European Union as a Single Organization with a Single Legal System’ (1999) CML Rev 887; RA Wessel, ‘Revisiting the International Legal Status of the EU’ (2000) 5 European Foreign Affairs Review 507; R Leal-Arcas, ‘EU Legal Personality in Foreign Policy?’ (2006) 24 Boston University International Law Journal 165.

48 Research handbook on the EU’s common foreign and security policy the Treaty of Lisbon finally put an end to all possible speculations.19 It is now crystal clear that the CFSP is an integral part of the autonomous EU legal order and not a separate framework of cooperation subject to general rules of international law. 2.2 The Treaty Framework of EU External Representation The Lisbon Treaty aimed to enhance the effectiveness and coherence of the Union’s external action.20 The dissolution of the pillar structure (Art. 1 TEU), the introduction of a single legal personality for the Union (Art. 47 TEU) and the grouping of all external action principles and objectives – including those of the CFSP – in a single Chapter21 and a specific Treaty provision (Art. 21 TEU) give the impression of a fully integrated legal framework.22 At the institutional level, the new functions of a permanent European Council President (Art. 15 TEU), a double-hatted High Representative and Vice-President of the European Commission responsible for the consistency of external activities (Art. 18 TEU), assisted by the newly established EEAS (Art. 27 TEU) and Union delegations abroad (Art. 221 TFEU), confirm this picture. However, upon closer inspection, it is clear that ‘the proclaimed unity of EU external action only extends to its general principles and objectives’ whereas the EU’s competence in the field of CFSP remains clearly distinct from other categories of competence set out in the TFEU.23 Also in the post-Lisbon era, the CFSP remains ‘subject to specific rules and procedures’ (Art. 24 TEU) implying a predominant role for the institutions which are assimilated with the executive power (European Council and Council) and a limited possibility of judicial review.24 The distinctiveness of the CFSP is made explicit in the so-called mutual non-affect clause of Article 40 TEU. According to this provision, the implementation of the CFSP shall not affect the application of the procedures and the powers of the institutions laid down by the TFEU and vice versa. However, in the absence of clear criteria to define the scope of CFSP in relation to other fields of the Union’s external action, there is significant potential for inter-institutional conflicts.25 The ‘integration-delimitation’ paradox is also reflected with respect to the EU’s external representation. On the one hand, the role of the High Representative and the EEAS is to bridge the gap between CFSP and the other policy areas in an attempt to 19

Arts 1 and 47 TEU (Lisbon version). See e.g. the Commission’s statement on the occasion of the signature of the Lisbon Treaty, claiming that this new legal framework ‘will enhance efficiency and give the Union a single voice in external relations’ (IP/07/1922, 13 December 2007). For a critical analysis, see P Koutrakos, ‘Primary Law and Policy in EU External Relations: Moving Away From the Big Picture’ (2008) 33 EL Rev 666. 21 Chapter 1 of Title V of the TEU. 22 See also Chapter 1 in this volume. 23 Koutrakos (n 20) 669. 24 C Hillion, ‘A Powerless Court? The European Court of Justice and the Common Foreign and Security Policy’ in M Cremona and A Thies (eds), The European Court of Justice and External Relations Law: Constitutional Challenges (Hart Publishing 2014) 47. 25 P Van Elsuwege, ‘The Potential for Inter-Institutional Conflicts Before the Court of Justice: Impact of the Lisbon Treaty’ in Cremona and Thies (n 24) 123. 20

Representing the EU in the area of CFSP 49 improve the coherence of the EU’s external action. On the other hand, the limits of this integrated approach become obvious in the continued distinction of external representation tasks. The President of the European Council and the High Representative represent the Union for CFSP issues at their respective political levels whereas the Commission ensures external representation for the other policy areas.26 A similar institutional division between CFSP and non-CFSP external action is discernible with regard to the procedure for the negotiation and conclusion of international agreements and the adoption of Union positions in bodies set up by such agreements.27 Depending on the subject of the agreement (or position), the Commission or the High Representative can take the initiative. Reflecting the internal decisionmaking procedures, the role of the European Parliament in the procedure for concluding international agreements in the field of CFSP is limited to a right of information.28 In other words, the rules regarding the EU’s external representation are concomitant with the internal division of powers and the constitutional principles on which the EU legal order is based. This implies, on the one hand, respect for the principles of conferral and institutional balance, implying that the Union and its institutions can only act within the limits of the competences conferred upon them in the Treaties,29 and, on the other hand, respect for the interconnected principles of sincere cooperation and consistency (or coherence), which mitigate (at least partially) the complexities following from the division of competences.30 2.3 The Law and Politics of EU External Representation in Practice As the previous section shows, an analysis of the Treaty rules is not sufficient to understand the practice of the EU’s external representation. It is equally important to outline some of the political dynamics at stake. The first consideration is that of institutional choice. With the Lisbon Treaty, the Member States have established an advanced institutional framework, through which they can pursue common foreign and security policy on the international scene. The CFSP is, however, not the only framework. Most of the Member States still maintain unilateral diplomatic channels. In this respect, it is noteworthy that Declaration 13 to the Treaty of Lisbon underlines that the provisions on the CFSP ‘do not affect the responsibilities of the Member States … for the formulation and conduct of their foreign policy nor of their national representation in third countries and international 26

Art. 15(6) TEU (President of the European Council); Art. 17 TEU (Commission) and Art. 27(2) TEU (High Representative). 27 Art. 218 TFEU. 28 See: Case C-658/11 European Parliament v Council (Pirate Transfer Agreement with Mauritius) EU:C:2014:2025 and comments in P Van Elsuwege, ‘Securing the Institutional Balance in the Procedure for Concluding International Agreements’ (2015) 52 CML Rev 1379. See also Case C-263/14 European Parliament v Council (Pirate Transfer Agreement with Tanzania) EU:C:2016:435. 29 Art. 5(2) TEU and Art. 13(2) TEU. 30 For comments, see: P Van Elsuwege and H Merket, ‘The Role of the Court of Justice in Ensuring the Unity of the EU’s External Representation’ in S Blockmans and RA Wessel (eds), Principles and Practices of EU External Representation (CLEER Working Papers 2012/5) 37.

50 Research handbook on the EU’s common foreign and security policy organisations’. Declaration 14 further specifies that the CFSP ‘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 service, relations with third countries and participation in international organisations’. The existence of an explicit EU competence in the area of CFSP (Art. 2(4) TFEU) therefore does not prevent the Member States from deploying their national foreign policy instruments. The Member States are furthermore also bound by their commitments to other international organizations. The UN is a key example and the special responsibilities of France and the United Kingdom in the Security Council are broadly recognized. On issues of security and defence, NATO is furthermore the primary locus of choice for most Member States.31 While the Member States may be happy to support the High Representative and EEAS in general, not all Member States may be happy to support them on all issues. The politics behind institutional choice are interesting as they contrast a functional (which institutional framework can best address the problem?) and political logic (which institutional framework would best serve the interests of a Member State?) with the EU obligations of loyal cooperation.32 The Court of Justice has clarified the implications of the loyalty principle, as expressed in Article 4(3) TEU, with respect to the EU’s non-CFSP external action. In essence, the duty of loyal cooperation implies that Member States may not undermine ‘a concerted Union strategy’ while expressing their national position in international fora.33 Significantly, such a strategy does not require the adoption of a legally binding document. As soon as a matter is discussed within the EU institutions, and even before the formal EU decision-making process enters into force, Member States are subject to special duties of action (i.e. actively supporting the EU’s position) and abstention (i.e. refraining from the adoption of positions or actions undermining the EU’s position or internal decision-making process). Significantly, the Member States’ obligations are of general application, irrespective of whether the EU’s competence is of an exclusive or shared nature.34 The question, of course, is to what extent these obligations in relation to the EU’s non-CFSP external action apply equally to EU representation in the field of CFSP. Reflecting the special status of the CFSP, a specific duty of cooperation is maintained in Article 24(3) TEU. This seems at first sight a redundant repetition taking into account the horizontal nature of the EU’s principles and objectives and the mandatory language used in defining the Member States’ obligations of loyalty in the field of CFSP. Pursuant to Article 24(3), the Member States ‘shall support’ the Union’s external and security policy, they ‘shall comply’ with the Union’s action in this area and ‘shall refrain’ from any action that is contrary to the Union’s interests or is likely to impair the effectiveness of its international action as a cohesive external actor. 31 ‘Shared Vision, Common Action: A Stronger Europe. A Global Strategy for the European Union’s Foreign And Security Policy’ (European External Action Service 2016) 20 accessed 24 February 2017. 32 J Jupille, W Mattli and D Snidal, Institutional Choice and Global Commerce (CUP 2013); JC Morse and RO Keohane, ‘Contested Multilateralism’ [2014] The Review of International Organizations 385. 33 Case C-246/07 Commission v Sweden ECLI:EU:C:2010:203, para 103. 34 ibid, para 71.

Representing the EU in the area of CFSP 51 Moreover, the text leaves little scope for exceptions as suggested by the expressions ‘actively’ and ‘unreservedly’.35 Article 28(2) TEU further specifies that CFSP decisions ‘commit the Member States in the positions they adopt and in the conduct of their activity’. Consequently, it appears that the importance of the distinction between the general principle of loyal or sincere cooperation under Article 4(3) TEU and its CFSP-specific variant under Article 24(3) TEU should not be overestimated. A noticeable difference, of course, is that the Council and the High Representative – rather than the Commission – shall ensure compliance with the loyalty principle in the field of CFSP. Whereas Article 24 TEU thus precludes the Commission from bringing a Member State before the Court of Justice for breaching its duties under the CFSP, Member State actions jeopardizing the attainment of the Union’s external action objectives nevertheless fall within the Court’s jurisdiction in the light of Article 4(3) TEU.36 The second consideration is the control of the High Representative and the EEAS. It is well known in political science and international relations that the delegation of tasks likely results in an agency problem.37 In layman’s terms: the High Representative and the EEAS have ideas of their own and may want to pursue those against the interests of some of the Member States. The Member States are therefore likely to keep the High Representative and the EEAS weak, under-staffed and subject to a whole range of oversight and accountability mechanisms.38 Furthermore, they are likely to bypass the High Representative and the EEAS if they anticipate that both EU actors will not effectively deliver on areas they consider important. A report of the UK House of Lords European Committee was quite explicit in this respect, when it stated that ‘[t]he EEAS should not … seek to project its own foreign policy. The Common Foreign and Security Policy should remain under the control of the Member States.’39 To better understand this so-called agency problem, it is necessary to identify first what the High Representative and the EEAS want to achieve. It is useful to distinguish between institutional interests and policy interests. In terms of institutional interests, there have been significant struggles between High Representatives and other EU actors. Javier Solana, Catherine Ashton and Federica Mogherini have all had their 35

C Hillion and RA Wessel, ‘Restraining External Competences of the Member States under CFSP’ in M Cremona and B De Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (Hart Publishing 2008) 91. 36 C Hillion, ‘Cohérence et action extérieure de l’Union’ in E Neframi (ed.), Objectifs et compétences de l’Union européenne (Bruylant 2012); see also Hillion (n 24). 37 R Kiewiet and M McCubbins, The Logic of Delegation: Congressional Parties and the Appropriations Process (Chicago University Press 1991); M Pollack, The Engines of European Integration: Agency, Delegation, and Agenda Setting in the EU (OUP 2003); D Hawkins, D Lake, D Nielson and M Tierney (eds), Delegation and Agency in International Organizations (CUP 2006); CA Bradley and JG Kelley, ‘The Concept of International Delegation’ (2008) 71 Law and Contemporary Problems 1. 38 H Dijkstra, Policy-Making in EU Security and Defence Policy: An Institutional Perspective (Palgrave Macmillan 2013); H Dijkstra, International Organizations and Military Affairs (Routledge 2016). 39 European Union Committee, The EU’s External Action Service (HL 2012–13, 147) accessed 24 February 2017.

52 Research handbook on the EU’s common foreign and security policy challenges with the Member States, the rotating Presidency and the European Commission.40 In terms of policy interest, the EU Treaties are an important guide.41 Furthermore, the High Representative and the EEAS have tried to pursue policies in which they have strengths. It is therefore no surprise that they have prioritized non-traditional threats, conflict prevention and the comprehensive approach, stressing the EU’s unique crisis toolkit.42 This has not always pleased the Member States. They notably complained about the disinterest of Ashton in defence, including her skipping a ministerial meeting in 2010.43 The High Representative and the EEAS can only pursue interests different from those of the Member States if they have sufficient resources. Informational advantages are critically important in this respect.44 The Member States accept EU-level representation precisely because they cannot carry out all representative functions themselves. As a result of direct EU representation, Member States lose the ability to control all the interactions that the EU representative has with foreign counterparts. After all, they may not be privy to those interactions. Furthermore, few Member States rival the diplomatic network of the EEAS. This gives the EEAS insight about many third countries. The EEAS has also significant in-house expertise and serves as the point of contact for many third parties. These advantages allow the High Representative and the EEAS to pursue their interests. Member States are keenly aware of this agency problem. They have installed a range of control mechanisms. It is common practice to distinguish between ex ante and ex post control mechanisms. The former determine the scope and procedure of a delegated task, while the latter are about the monitoring and sanctioning of the High Representative and the EEAS.45 EU statements, for example, need to be cleared with the Member States. The EEAS and its delegations are packed with national diplomats. Changes to the budget, personnel policy or organization of the EEAS furthermore need to be cleared with the Member States. Control and oversight are not necessarily explicit. The High Representative and the EEAS typically anticipate that the Member States may be unhappy with their actions and thus refrain from such actions in the first place. They are responsive to the wishes of the membership.

40

H Dijkstra, ‘Commission Versus Council Secretariat: An Analysis of Bureaucratic Rivalry in European Foreign Policy’ (2009) 14 European Foreign Affairs Review 431; Mueller-BrandeckBocquet and Rueger (n 7); N Helwig and C Rueger, ‘In Search of a Role for the High Representative: The Legacy of Catherine Ashton’ (2014) 49 International Spectator 1. 41 Arts 3(2), 21 TEU. 42 European Council, A Security Europe in a Better World: European Security Strategy (12 December 2003) accessed 17 February 2017; S Vanhoonacker and K Pomorska, ‘The European External Action Service and agenda-setting in European foreign policy’ (2013) 20 Journal of European Public Policy 1316. 43 V Pop, ‘Ashton’s absence from defence gathering raises eyebrows’ (EUObserver, 25 February 2010) accessed 22 February 2017. 44 Pollack (n 37); Hawkins and others (n 37). 45 T Delreux and J Adriaensen, ‘Introduction’ in T Delreux and J Adriaensen (eds), The Principal-Agent Model and the European Union (Palgrave 2017).

Representing the EU in the area of CFSP 53 The final consideration is one of bureaucratic politics. This goes a step further than the question of control. Member States may well be in agreement that it is better to be represented by the High Representative and the EEAS in a particular area of the CFSP. Yet this logic may run into trouble when considering the parochial interests within the Member States. In particular, the emergence of the High Representative and the EEAS challenges the foreign ministers and the national diplomatic services, respectively. We know that institutions are sticky:46 they tend to survive even if there is no explicit purpose for them. This can also be said regarding certain tasks of national diplomatic services. Typically among the most prestigious bits of government, they have proven almost immune to EU foreign policy cooperation and the creation of the EEAS. Few if any of the national diplomatic services have downsized as a result of Lisbon.47 If anything, they have tried to remain visible and relevant. Instances of bureaucratic politics result directly from the parallel existence of the EEAS and the national diplomatic services and a lack of clarity about the division of labour.48 The combination of the complex legal framework and political reality implies that the question of who is representing the EU is not always as straightforward as a cursory reading of the Treaties might suggest. The remainder of this chapter analyses different scenarios in order to better understand the mechanisms behind the process of EU representation in practice. It focuses subsequently on multilateral, bilateral and ad hoc EU external representation.

3. EU EXTERNAL REPRESENTATION IN MULTILATERAL FORA The EU’s representation in multilateral fora – understood to include both formal international organizations and international regimes – can take different forms, oscillating between full membership and observer status.49 This is the result of various legal and political factors, both inside and outside the EU. First of all, the EU’s capacity to act on the international stage is a matter of competence. It is therefore no coincidence that full membership is mostly granted in international organizations dealing with issues falling within the scope of the EU’s exclusive competence or within areas where extensive internal harmonization has taken place.50 However, there is no direct correlation between strong internal competences and strong participatory rights

46 P Pierson, Politics in Time: History, Institutions and Social Analysis (Princeton University Press 2004). 47 Balfour and Raik (n 6); Rosa Balfour and Kristi Raik (eds), The European External Action Service and National Diplomacies (European Policy Centre 2013). 48 R Adler-Nissen, ‘Symbolic Power in European Diplomacy: The Struggle Between National Foreign Services and the EU’s External Action Service’ (2014) 40 Review of International Studies 657; Dijkstra (n 7); Dijkstra (n 40). 49 Jørgensen, Oberthür and Shahin (n 4); Jørgensen and Laatikainen (n 4); Kaddous (n 7). 50 F Hoffmeister, ‘Outsider or Frontrunner? Recent Developments under International and European Law on the Status of the European Union in International Organisations and Treaty Bodies’ (2007) 44 CML Rev 54.

54 Research handbook on the EU’s common foreign and security policy in international organizations.51 This is due to the second variable, which is the statute of the international organization concerned. It determines whether or not the EU can participate and in which form.52 Whereas the EU may have the competence to be directly represented, the possibility to make use of this competence depends on the institutional framework of the respective bodies.53 The EU’s status in international organizations also largely depends upon the position of third countries since unanimity, or at least a qualified majority, is normally needed to accept a formal role for non-state actors. Other countries should thus be convinced that direct EU representation is not against their interests.54 Finally, EU Member States are not always keen to give up their position in multilateral fora in favour of a unified EU representation. Membership remains a clear expression of national sovereignty and is deemed important to safeguard unilateral influence on the international stage. Member States are traditionally reluctant to accept a stronger role for the EU if it comes at the expense of their own representation.55 They want to keep their unilateral institutional channels open, allowing them a variety of institutional choices. Arguably, this is even more relevant in the area of CFSP, which is a traditional stronghold of Member State sovereignty, in comparison to non-CFSP contexts where EU external representation more logically follows from the EU’s internal competences. Moreover, the most relevant international organizations dealing with CFSP matters, such as the UN, NATO or the Organization for Security and Cooperation in Europe (OSCE), are state centric. Individual Member States are members of these organizations on their own merits, not as part of some sort of broader EU external presence.56 As a result, attempts to upgrade the EU’s direct representation face legal and political difficulties. This is most clearly illustrated by the development of the EU’s representation in the UN.57 Prior to the Lisbon Treaty, the rotating Presidency represented the EU for matters concerning the CFSP whereas the Commission represented the European Community. The abolition of the pillar structure and the introduction of new rules for external representation under primary EU law (cf. supra) triggered a revision of this arrangement. In particular, the replacement of rotating Presidency representatives with 51

J Wouters and A-L Chané, ‘Brussels Meets Westphalia: The European Union and the United Nations’ in P Eeckhout and M Lopez-Escudero (eds), The European Union’s External Action in Times of Crisis (Hart Publishing 2016) 304. 52 Kaddous (n 7). 53 Wouters and Chané (n 51) 304. 54 J Sack, ‘The European Community’s Membership of International Organisations’ (1995) 32 CML Rev 1234. 55 ibid, 1232–1233. 56 Nevertheless, some formal and informal intra-EU coordination may take place. See, for instance, S Blavoukos and D Bourantonis, ‘The EU’s Performance in the United Nations Security Council’ (2011) 33 Journal of European Integration 731; N Græger and KM Haugevik, ‘The EU’s Performance With and Within NATO: Assessing Objectives, Outcomes and Organisational Practices’ (2011) 33 Journal of European Integration 743. 57 Laatikainen (n 5); E Drieskens, L Van Dievel and Y Reykers, ‘The EU’s Search for Effective Participation at the UN General Assembly and UN Security Council’ in E Drieskens and LG Van Schaik (eds), The EU and Effective Multilateralism: Internal and External Reform Practices (Routledge 2014).

Representing the EU in the area of CFSP 55 EU institutional actors had important repercussions. Whereas the Presidency representatives could benefit from their state’s UN member status to express the EU’s position, this was not automatically guaranteed for the EU’s institutional representatives. In line with the EU’s observer status, the latter would only be allowed to intervene at the end of the debates and would face serious limitations regarding the circulation of official documents and proposals. To avoid such detrimental consequences, a diplomatic initiative resulted in the adoption of UNGA Resolution 65/276 aligning the rules for the participation of the EU in the work of the UN with the provisions of the Lisbon Treaty.58 The new resolution allowed European Council President Van Rompuy to intervene for the first time in the General Debate of the UN General Assembly in September 2011. This was considered ‘a major breakthrough in a forum where the promotion of national sovereignty continues to be a dominant factor’.59 Nevertheless, the process leading to the adoption of this new arrangement also revealed the limits and practical problems of the EU’s representation in multilateral fora. In particular, it proved very difficult to convince third countries of the need to upgrade the EU’s rights of representation. Countries from Africa and the Caribbean Community (Cariforum) feared that allowing greater participation by the EU might undermine the principle of equality among sovereign states and the intergovernmental character of the UN system. This opposition led to significant amendments in comparison to the initial draft of the resolution, watering down the EU’s ambitions.60 The EU remains somewhat ‘procedurally handicapped’ within the UN system.61 For example, as the EU cannot vote in the UNGA, it also cannot give an explanation of a vote on behalf of the members. Apart from the opposition from third countries, the implementation of Resolution 65/276 also encountered resistance from EU Member States. The United Kingdom, in particular, feared that the EU’s direct representation might lead to an erosion of national competences. Accordingly, the British government actively resisted a so-called ‘representation creep’.62 This resulted in controversy about the right of EU delegations to deliver statements in the name of the EU in the area of shared competences. The United Kingdom insisted that such statements could only be made ‘on behalf of the EU and its Member States’ and not simply ‘on behalf of the EU’. A compromise solution 58

PA Serrano de Haro, ‘Participation of the EU in the Work of the UN: General Assembly Resolution 65/276’ (CLEER Working Papers 2012/4) accessed 3 March 2017; J Wouters, J Odermatt and T Ramopoulos, ‘The Status of the European Union at the United Nations General Assembly’ in I Govaere, E Lannon, P Van Elsuwege and S Adam (eds), The European Union in the World: Essays in Honour of Marc Maresceau (Brill 2014) 211. 59 Serano de Haro (n 58); see also Laatikainen (n 5) on all sorts of transitional arrangements and bureaucratic challenges for EU officials to represent the Union. 60 See Jan Wouters, Anna-Louise Chané and Jed Odermatt, ‘Improving the EU’s Status in the UN and the UN System: An Objective Without a Strategy?’ in Kaddous (ed.) (n 7) 52. 61 Wouters, Odermatt and Ramopoulos (n 58) 212. 62 UK Foreign and Commonwealth Office, Review of the Balance of Competences between the United Kingdom and the European Union, July 2013, 41, accessed 3 March 2017.

56 Research handbook on the EU’s common foreign and security policy was found in October 2011 when the Council adopted a document setting out the ‘General Arrangements for EU statements in multilateral organisations’.63 This discussion is evidence of the importance of the alternative and parallel institutional channels that Member States want to keep in addition to EU representation. The Council document provides some general principles and practical guidelines. Most notably, it addresses the UK’s concerns in pointing out that the EU’s external representation does not affect the internal division of competences. The EU can only make a statement when it is competent and after a common position has been agreed in accordance with the relevant Treaty provisions.64 The EU representation is to be exercised from behind the EU nameplate unless prevented by the rules of procedure of the relevant organization. Member States may complement the EU statements as long as they respect the principle of sincere cooperation. When Member States agree, EU actors can thus express statements relating to issues of national competence. In such instances, the statement will be prefaced by ‘on behalf of the Member States’. In areas of shared competence, the prefix ‘on behalf of the EU and its Member States’ will be used and for statements referring exclusively to positions adopted in the EU framework, reference will be made to ‘on behalf of the European Union’. Significantly, the guidelines provide that the latter practice includes the CFSP.65 The discussion surrounding the delivery of statements in multilateral fora revealed the key distinction between internal coordination and external representation. Once an EU position is adopted, this position is to be represented by EU actors externally on the basis of the division of labour foreseen in the Treaties. With respect to CFSP matters, this implies that the President of the European Council, the High Representative or the EU delegation take the floor on behalf of the EU. The Member States are bound to coordinate their action and to uphold the EU’s positions whereas the High Representative shall organize this coordination.66 In practice, this implies that the EU delegations play a crucial role in ensuring ‘on the spot’ coordination. More than 1,000 annual coordination meetings take place in New York, Geneva and Vienna ensuring the coherence of the EU’s position in the UN and the OSCE.67 For international conferences taking place in a location where there is no EU delegation, the Member State holding the Presidency may, on an ad hoc basis, chair the ‘on the spot’ internal coordination meetings.68

63

Council of the EU, ‘EU Statements in multilateral organisations: General Arrangements’, doc. 15901/11, 24 October 2011. 64 ibid. 65 ibid. 66 Art. 34(1) TEU. 67 M Schmidt, ‘The Position of the European Union in the United Nations. A United Nations Perspective’ in Kaddous (ed.) (n 7) 35. D Spence, ‘From the Convention to Lisbon: External Competence and the Uneasy Transition for Geneva Delegations’ in Spence and Batora (eds) (n 5); L-E Lundin, ‘Effective Multilateralism After Lisbon: The Added Value of the EEAS and the EU Delegation in Vienna’ in Spence and Batora (eds) (n 5); Laatikainen (n 5). 68 European Commission, Internal Guidance Note for all Commission Services on External Representation, SEC (2012) 118, 10 February 2012.

Representing the EU in the area of CFSP 57 After some teething problems,69 it seems that the post-Lisbon arrangements are now more or less established. At the same time, the ambition to further improve the EU’s status in international organizations has become more modest. The 2012 Barroso-Aston paper, for instance, called for a piecemeal approach, focusing on a limited number of organizations.70 However, as can be derived from the CJEU’s judgment relating to the International Organisation of Vine and Wine (OIV), nothing prevents the Union from adopting a position to be defended on its behalf in a body set up by an international agreement to which it is not a party, even when not all Member States are a party. The only criterion is that the adopted position concerns an area of law which falls within the EU’s competence.71 Even in a context where EU external representation is not an evident option, the Member States are therefore bound to respect their EU law obligations. This also applies with respect to CFSP matters. Article 34(1) TEU provides that ‘[i]n international organisations and at international conferences where not all the member states participate, those which do take part shall uphold the Union’s positions’. Accordingly, the Member States which are members of the Security Council are under a duty to keep the other Member States and the High Representative fully informed and to defend the positions and the interests of the Union.72 When the EU has a defined position, the EU Member States which sit on the Security Council must request that the High Representative be invited to defend the EU’s position.73 This innovation of the Lisbon Treaty significantly increased the visibility of the EU and allowed the High Representative, and particularly the EU delegation, to intervene on various occasions.74

4. BILATERAL EU EXTERNAL REPRESENTATION While EU external representation in multilateral fora has brought some specific challenges, such as voting and speaking rights, getting the appropriate hearing at the bilateral level has hardly been easier for the EU. Once again, we see significant variation in EU bilateral representation across the globe, which is not easily explained by the EU competences.75 Indeed, to understand how external representation on the 69

PM Kaczynski, ‘Swimming in Murky Waters. Challenges in Developing the EU’s External Representation’, FIIA Briefing Paper 88, September 2011. 70 Communication to the Commission from the President in Agreement with Vice-President Ashton, Strategy for the progressive improvement of the EU status in international organisations and other fora in line with the objectives of the Lisbon Treaty, C(2012) 9420 final, 20 December 2012. 71 Case C-399/12 Germany v Council EU:C:2014:2258, paras 49–52. 72 D Marchesi, ‘The EU Common Foreign and Security Policy in the UN Security Council: Between Representation and Coordination’ (2010) 15 European Foreign Affairs Review 97; Blavoukos and Bourantonis (n 56); Drieskens, Van Dievel and Reykers (n 57). 73 Art. 34(2) TEU. 74 Laatikainen (n 5). 75 Some of the empirical examples in this section are also discussed in H Dijkstra, ‘Non-exclusive Delegation to the European External Action Service’ in Delreux and Adriaensen (eds) (n 45).

58 Research handbook on the EU’s common foreign and security policy bilateral level plays out requires us to account for the host country, both in terms of its importance for individual Member States as well as its attitude towards the EU. As noted earlier, the Commission has long had an extensive network of delegations in other countries. These were offices of the Commission, staffed by Commission officials, trying to implement European policies from trade to development and enlargement. As the permanent bases of the EU abroad, they also became focal points for issues such as press and public diplomacy. The hybrid nature of the Commission delegations, somewhere between technical offices and full-fledged embassies, obviously resulted in challenges with protocol and accreditation. For instance, the Commission staff member appointed as Head of Delegation could not be called an ‘ambassador’.76 Considering the sizeable EU development budgets, it is clear that some of the counterparts would prioritize the Commission Head of Delegation over many of the national ambassadors. The Lisbon Treaty was supposed to address some of these challenges. The purpose was to turn all the bilateral Commission delegations into upgraded EU delegations consisting of both Commission civil servants and seconded European diplomats. This transformation has taken a considerable time and has been uneven at best. That the EU has so many bilateral delegations across the world allows us to run medium or large analyses of external representation. Austermann has done just that.77 She shows how Commission delegations have been upgraded to EU delegations at ‘different speeds’. One of her findings – that EU diplomacy is least centralized in major economic partners – is perhaps surprising from the perspective of the EU’s exclusive competence in this area,78 but it is completely unsurprising when considering the significant interests of the individual Member States in places like Washington or Beijing. Particularly when host countries matter, the Member States are unlikely to let the EEAS and its delegations get in their way. The significance of the host country for the individual Member States is also underlined by Balfour and Raik, who note that EU delegations have ‘been relatively easy to establish in less important and peripheral locations where member states have fewer political interests at play … The easiest cases are locations where one’s own country has no representation.’79 Indeed they find that Washington, Beijing, New Delhi, Moscow, Cairo and Tokyo are places where Member States want to avoid their bilateral channels being compromised.80 Dijkstra argues that these are instances of what he calls ‘non-exclusive delegation’ where Member States have delegated to the EU delegations a role in bilateral representation, but this role is hardly exclusive and is (re)negotiated on a daily basis (not dissimilar to EU representation in multilateral fora).81 It is impossible to describe the local dynamics in all the countries where the EU maintains bilateral relations but scholars have analysed the nitty-gritty details of setting 76

Bruter (n 9); Ramses Wessel, ‘Can the EU Replace its Member States in International Affairs? An International Law Perspective’ in Govaere and others (n 58). 77 Austermann (n 6). 78 C Damro, ‘Market Power Europe’ (2012) Journal of European Public Policy 682. 79 Balfour and Raik (n 6) 44. 80 ibid; see also Austermann (n 6). 81 Dijkstra (n 75).

Representing the EU in the area of CFSP 59 up several EU delegations after the entry into force of the Treaty of Lisbon.82 It is worth highlighting some of their key findings because these findings show us the importance of local variables affecting EU external representation. To start with China, we have witnessed the appearance of an interesting de facto division of labour between the Member States and the EU. Whereas the Member States themselves are in fierce competition regarding trade promotion and investment, they collectively have been happy to leave the difficult political dossiers (arms embargo, climate change, human rights, intellectual property rights, the market economy status) to the EU. The EU has proved a convenient cover shielding the bilateral trading interests. This is in line with intra-EU principal–agent dynamics outlined above. Austermann has analysed this intra-EU political dynamic in greater detail with respect to the institutionalization of the EU delegation in Beijing. She writes that ‘[d]espite the clearly upgraded political role, the EU Delegation cannot do away with … the diverging interests of member states. This makes it difficult to speak always with one voice in Beijing.’83 Indeed, the Member States were pleased to have the Head of Delegation speak about human rights, such as in the case of the detention of Ai Weiwei, but refused to allow him to speak on behalf of the whole EU.84 He could only make a statement on his own behalf. It is clear from the Beijing example that Member States have different channels for bilateral representation and they use them strategically. While the division of labour between the Member States and the EU institutions is thus critically important for bilateral representation, it is not the full story. As with the multilateral fora, one also needs to account for the local environment. A comparison between EU delegations in Washington and Moscow is instructive.85 The way in which the US and Russian administrations systematically play around with the corps diplomatique (in different ways) also affects how the EU is represented externally. Maurer notes the diplomatic circus in Washington is a constant ‘beauty contest’.86 The ambition for diplomatic actors is to gain the attention of the US administration. As such, individual Member States have been deeply suspicious of any bilateral role of the EU delegation, particularly in the area of political and security affairs.87 While this finding seems paradoxical considering that in Beijing Member States delegated precisely such tasks, it shows the significance of the local environments. The EU delegation in Washington has tried to stick to core EU competences, such as transatlantic trade, and to ensure that the EU effort would serve the interests of the Member States. One example has been organizing briefing meetings with US counterparts for all EU diplomats at the same time. The US administration has been supportive of this. As Maurer and Raik write, ‘in Washington it is difficult to reach a high-ranking official … The US had actively pushed the idea of meeting all EU member states … at 82

See particularly individual chapters in Spence and Bátora (n 6). F Austermann, ‘Towards One Voice in Beijing? The Role of the EU’s Diplomatic Representation in China Over Time’ (2012) 18 Journal of European Integration History 83, 101. 84 ibid. 85 H Maurer and K Raik, Pioneers of a European Diplomatic System: EU Delegations in Moscow and Washington (FIIA 2014). 86 H Maurer, ‘Europe in America: An Upgraded EU Delegation in a Reinforced System of European Diplomatic Coordination’ in Spence and Batora (eds) (n 5) 276. 87 ibid, 28. 83

60 Research handbook on the EU’s common foreign and security policy the same time … even before the Lisbon Treaty … such exchanges with the EU28 have become standard practice.’88 The environment in Moscow is quite different. The Russian effort has focused on divide-and-rule and, as such, Russian officials have not been keen to meet the EU28 collectively.89 Access is generally restricted and Moscow has had little interest in EU-level officials, preferring to deal with more high-level national (e.g. German) officials. Maurer and Raik note that this Russian attitude has pushed diplomats of the EU Member States closer together,90 particularly since the annexation of Crimea and the establishment of the EU sanctions regime in 2014. For our understanding of EU external representation more broadly, however, it is once again significant to account for this local environment in which bilateral representation takes place.

5. AD HOC EU EXTERNAL REPRESENTATION While multilateral and bilateral diplomacy tend to be institutionalized, ad hoc forms of external representation may allow the EU institutions a greater presence. Yet what we have seen, particularly with respect to high-level mediation, is a variation of formats through which the EU and its Member States are represented. Indeed, there also seem to be important internal and external variables at play in relation to ad hoc forms of external representation. Furthermore, while ad hoc external representation implies one-off events, it often consists of a process of mediation, persisting for years and resulting in a strong degree of path dependence. There is a relatively long tradition of EU representatives participating in ad hoc diplomacy. Perhaps most famously, the so-called ‘Troika’ consisting at the time of the rotating Presidency and its predecessor and successor sought to mediate in the erupting conflict in former Yugoslavia in 1991.91 Similarly, former Swedish Prime Minister Carl Bildt was the EU envoy and Vice-Chair of the Dayton conference in 1995, even though his position was informally undermined by the British and French representatives also present.92 These experiences, and the lack of EU success in the Western Balkans, provided direct input for the Treaty of Amsterdam of 1999, which established the position of the EU High Representative (a continuous position to assist the rotating Presidency) and codified the EU Special Representatives, who would be appointed by the Member States to give the EU representation in some of the world’s most important conflicts. The first High Representative, Javier Solana, was particularly active in terms of ad hoc external representation. Perhaps because the rules of ad hoc diplomacy are less set in stone, this was an area where he could make a name for himself. As High 88

Maurer and Raik (n 85) 13. ibid. 90 ibid, 13–14. 91 Luxembourg foreign minister Jacques Poos, flanked by his Dutch and Italian counterparts, declared that ‘The hour of Europe has dawned’, cited in T Garton Ash, History of the Present: Essays, Sketches and Dispatches from Europe in the 1990s (Penguin Books 2000) 94. 92 R Holbrooke, To End a War (Random House 1998) 242; Dijkstra (n 75). 89

Representing the EU in the area of CFSP 61 Representative, Solana was instrumental – together with NATO Secretary-General Lord Robertson – in negotiating the OHRID peace agreement for the former Yugoslav Republic of Macedonia in 2001. From 2003, he became the negotiator on behalf of the international community with Iran on nuclear non-proliferation. This paved the way for the later ‘successes’ of Ashton and Mogherini. Solana’s biggest coup, however, was securing a seat on behalf of the EU in the Middle-East Quartet in 2004. Importantly, he did not have to ‘share’ this seat with other European representatives. He was a full member together with the American and Russian foreign ministers as well as the UN Secretary-General. That the ‘appointment’ of EU representatives in ad hoc external representation goes beyond formal competences is perhaps best illustrated by Solana’s mediation during the Israeli–Lebanese war in 2006.93 The Member States were confused and divided but Solana simply stepped on a plane. Asked by reporters on the ground whether he would lead mediation attempts, he stated that ‘I am not going to tell you about any potential way of solving [the conflict]. My visit today here is a visit of friendship, of solidarity and support.’94 Several days later, he was back in Brussels where he briefed the EU foreign ministers, who gave him a lead role with respect to mediation. The situation was different in 2008, when Russia intervened in Georgia, and the French President Nicolas Sarkozy put himself forward as the rotating Presidency in negotiating a peace deal. Solana travelled with Sarkozy to Moscow and Tbilisi, but was all but ignored.95 When Lady Catherine Ashton succeeded Solana in 2009, there were questions as to whether she would continue such activism, as she had less diplomatic experience. Nevertheless, a significant dose of institutional path dependence allowed her to continue the role of the High Representative in the Quartet and the Iran negotiations. The Middle-East Quartet became significantly less important during her tenure due to a lack of developments on the ground but she put significant efforts into the Iran negotiations. Despite the fact that most observers were happy to see her leave Brussels in 2014, there was a suggestion to keep her on as the main negotiator to bring the Iran negotiations to a successful close.96 The new High Representative Mogherini indeed kept her on for another round of negotiations, but quietly replaced her soon afterwards to benefit from the eventual deal. In addition to Iran, mediation in the conflict between Serbia and Kosovo provides a good example of ad hoc diplomacy. Initially, Finnish President Martti Ahtisaari represented the EU in negotiations with Serbia and Russia.97 Significantly, the appointment of Martti Ahtisaari as the EU mediator was an initiative of the German Council Presidency in 1999. It was not based on a formal procedure and, for this reason, his status and mandate always remained somewhat unclear.98 Moreover, the 93

Dijkstra (n 7). Cited in ibid, 8. 95 ibid, 12–15. 96 L Norman, ‘EU’s Mogherini Appoints Catherine Ashton Special Adviser for Iran Talks’ (Wall Street Journal, 5 December 2014) accessed 3 March 2017. 97 See Statement of the European Union on Kosovo, 31 May 1999, Bull. EU 1999-5, 1.3.18. 98 A-S Maass, EU-Russia Relations 1999–2015. From Courtship to Confrontation (Routledge 2016) 14. 94

62 Research handbook on the EU’s common foreign and security policy Council had already formally appointed Wolfgang Petritsch as the EU Special Envoy to Kosovo.99 Notwithstanding this ambiguity surrounding the EU’s representation, the negotiations between Ahtisaari and the Russian ambassador Chernomyrdin paved the way for the adoption of Security Council Resolution 1244. This provided for the departure of Serbian troops and the deployment of an international civilian and security mission. After Kosovo’s unilateral declaration of independence in February 2008, the EU played a crucial role in the process of reconciliation with Serbia. From 2011, under the leadership of Lady Ashton, the EEAS started a so-called ‘facilitated dialogue’ between Belgrade and Pristina.100 The EU’s mediation efforts successfully resulted in a series of agreements concerning Kosovo’s external representation (2012), the acceptance of key principles governing the normalization of relations (2013) and issues such as energy, telecoms, the status of the Serb-majority municipalities in Kosovo, and freedom of movement over the Mitrovica bridge (2015). It was an example of classic, tiresome, long-term diplomacy coupled with sweeteners, such as the EU candidate status for Serbia and the Stabilisation and Association Agreement (SAA) with Kosovo. Significantly, acting through the EU’s institutional structures allowed the Member States to circumvent the delicate issue of recognition. This explains why the SAA with Kosovo was concluded by the EU alone and not by the EU and its Member States.101 While the EU institutions and their representatives have become serious actors in diplomacy, it is also important to point at some setbacks. The conflict between Ukraine and Russia clearly illustrates that the EU can only play a meaningful role if this is acceptable for all parties involved. When Ashton decided to fly to Kiev in January 2014 to mediate between President Yanukovich and the opposition, Russian President Vladimir Putin quickly dismissed her initiative.102 Subsequently, crisis diplomacy was conducted by the foreign ministers of France, Germany and Poland – the so-called ‘Weimar triangle’ – acting ‘in close coordination’ with EU High Representative Ashton.103 Following Russia’s annexation of Crimea and the escalation of violence in the eastern part of Ukraine, the EU’s institutional actors gradually became sidelined. At the Minsk I negotiations, the EU was represented by an unusual troika of Ashton, Trade Commissioner De Gucht and Energy Commissioner Oettinger. At the Minsk II negotiations, there were no EU institutional actors. Instead, the President of France and 99

Council of the EU, Joint Action 1999/239/CFSP in relation to the nomination of a special envoy for Kosovo [1999] OJ L89/1. 100 Bergmann and Niemann (n 1). 101 P Van Elsuwege, ‘Legal Creativity in EU External Relations: The Stabilisation and Association Agreement between the EU and Kosovo’ (2017) 22 European Foreign Affairs Review forthcoming. 102 I Traynor, ‘Vladimir Putin tells Brussels to stay out of Ukraine’s political crisis’, The Guardian (28 January 2014) accessed 1 March 2017. 103 German Ministry of Foreign Affairs, ‘Crisis Diplomacy in Ukraine’ accessed 1 March 2017.

Representing the EU in the area of CFSP 63 the Chancellor of Germany were represented. Switzerland, as the OSCE Chairman-inoffice, played an important coordinating role. This constellation reflected Russia’s reluctance to let EU actors play a role in questions of security and foreign policy. Instead, the preference is for intergovernmental discussions under the so-called ‘Normandy format’, involving the leaders of Germany, France, Russia and Ukraine.

6. CONCLUSION EU external representation remains a puzzle for all but the closest observers. Whereas the EU is represented in one conflict by someone from the EU institutions, in other conflicts several Member States may take a lead role, and in yet other conflicts there is no common EU representation and/or position to speak of. While academics have long been interested in the question ‘who speaks for Europe?’, they have failed to come up with definite answers. The Treaty of Lisbon, rather than solving this question once and for all, has created new challenges for EU external representation across the world. In this chapter we have not provided definite answers, but we have offered a new way of understanding EU external relations by analysing more explicitly the interaction of legal and political dynamics. For us, it is clear that while the EU Treaties have increasingly expanded the scope for collective EU external representation by EU agents, most recently with the Lisbon Treaty, one needs to recognize that there is a range of internal and external political and legal dynamics that constrain the ability of the EU to fully represent itself. For instance, the upgrading of the Commission delegations to EU delegations has been uneven, and the EU delegations have not yet reached their full potential. While some of these dynamics have previously been discussed in the academic literature (and been applied to individual case studies), it is worthwhile to comprehensively sum up the most important limits and enablers for EU external representation. With respect to intra-EU politics, there is an important tension between the ability of the individual Member States to make their own institutional choices and their legal obligations to follow the EU line. Institutional choice by the Member States (whether they act unilaterally or through EU channels) when addressing cooperation problems is well discussed in the international relations literature, whereas legal scholars have been interested in loyal cooperation. Yet to fully understand how the trade-off works out in practice requires us to take an interdisciplinary point of view. Indeed, much of the discussion about ‘representation creep’ in the UN concerns political arguments dressed up in legal terminology. Alternatively, France and the United Kingdom have continually refused to be loyal Member States when it comes to the Security Council, citing their conflicting obligations under the UN Charter. It is, however, not only about how to most effectively promote national interest or solve a cooperation problem. Member States have also been worried about agency drift by the EU agents. In addition, we have seen strong bureaucratic politics dynamics at play. National embassies in places such as Washington have been worried about losing access to local counterparts. The different rotating Presidencies across the multilateral fora have not been all too happy about giving up their own roles. At the same time, the Member States occasionally use EU representation strategically, for instance to shift the

64 Research handbook on the EU’s common foreign and security policy blame. Beijing is a key location where the EU is in charge of addressing some of the more difficult dossiers. What our overview of EU external representation has also shown is that we need to look beyond intra-EU legal and political dynamics. It is not sufficiently well understood in the current academic literature that a critical condition for effective EU representation is in fact external and has to do with the environment in which representation takes place. Simply put, other states should be willing to meet EU representatives. If they are not, there is little that the EU can do about it. The importance of such external conditions is perhaps most obvious when it comes to the EU’s dealings with the great powers. The EU has had a particularly hard time dealing with Russia (be it over Georgia or Ukraine). Yet it is not just about power politics. In the UN context, other (weaker) regional groupings have been able relatively easily to frustrate efforts for more EU representation. The EU, as a non-state actor, remains the odd one out in a world of sovereign states and this significantly conditions its ability to externally represent itself.

4. ‘The Good, the Bad and the Ugly’: three levels of judicial control over the CFSP Christophe Hillion and Ramses A. Wessel

1. INTRODUCTION A quarter of a century ago, a book chapter on judicial scrutiny of the then new Common Foreign and Security Policy (CFSP) of the EU would have raised eyebrows. Times have changed.1 The role of the CJEU in relation to the CFSP is now studied extensively2 as the Court’s CFSP case law is fast expanding.3 This remarkable development is not only due to the Member States’ decision partially to lift the judicial

1 cf. C Hillion and RA Wessel, ‘Restraining External Competences of EU Member States under CFSP’ in M Cremona and B De Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (Hart Publishing 2008). 2 See for instance S Griller, ‘The Court of Justice and the Common Foreign and Security Policy’ in A Rosas, E Levits and Y Bot (eds), Court of Justice of the European Union – Cour de Justice de l’Union Européenne, The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case-law – La Cour de Justice et la Construction de l’Europe: Analyses et Perspectives de Soixante Ans de Jurisprudence (TMC Asser Press 2013); G De Baere and P Koutrakos, ‘The Interactions Between the Legislature and the Judiciary in EU External Relations’ in P Syrpis (ed.), The Judiciary, the Legislature and the EU Internal Market (CUP 2012); L Saltinyté, ‘Jurisdiction of the European Court of Justice over Issues Related to the Common Foreign and Security Policy under the Lisbon Treaty’ (2010) Jurisprudence 119 et seq.; A Hinarejos, Judicial Control in the European Union – Reforming Jurisdiction in the Intergovernmental Pillars (OUP 2009); C Hillion, ‘A Powerless Court? The European Court of Justice and the Common Foreign and Security Policy’ in M Cremona and A Thies (eds), The European Court of Justice and External Relations Law (Hart Publishing 2014); C Hillion, ‘Decentralised Integration? Fundamental Rights Protection in the EU Common Foreign and Security Policy’ (2016) European Papers 55; RA Wessel, ‘Resisting Legal Facts: Are CFSP Norms as Soft as They Seem?’ (2015) European Foreign Affairs Review 123; RA Wessel, ‘Lex Imperfecta: Law and Integration in European Foreign and Security Policy’ (2016) 2 European Papers 439; C Eckes, ‘Common Foreign and Security Policy: The Consequences of the Court’s Extended Jurisdiction’ (2016) European Law Journal 492; G Butler, ‘The Coming of Age of the Court’s Jurisdiction in the Common Foreign and Security Policy’ (2017) European Constitutional Law Review 673; M Cremona, ‘Effective Judicial Review is of the Essence of the Rule of Law: Challenging Common Foreign and Security Policy Measures before the Court of Justice’ (2017) European Papers 671; P Koutrakos, ‘Judicial Review in the EU’s Common Foreign And Security Policy’ (2018) International and Comparative Law Quarterly 1; and J Heliskoski, ‘Made in Luxembourg: the Fabrication of the Law on Jurisdiction of the Court of Justice of the European Union in the Field of the Common Foreign and Security Policy’ (2018) Europe and the World: A Law Review (forthcoming). 3 References may be found throughout this chapter.

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66 Research handbook on the EU’s common foreign and security policy immunity from which the CFSP has traditionally benefited. It is also the result of the incremental integration of the policy in the increasingly constitutionalized EU legal order.4 However far reaching the constitutionalization of the CFSP may have been, gaps nevertheless remain. In particular, the jurisdiction of the Court of Justice, as it has itself recognized,5 is legally limited. Given the many recent studies on that very issue,6 this chapter will not repeat the detailed analyses of the relevant recent cases. By examining possible forms of judicial control over CFSP at different levels (‘the good, the bad, and the ugly’), this chapter rather aims to discuss the Court’s approach to the system of judicial control over the CFSP and to provide a more holistic picture of possibilities and pitfalls. Having recalled the post-Lisbon developments in the CJEU’s jurisdiction in relation to the CFSP, the present contribution thus asks whether and, if so, to what extent remaining gaps in the Court’s control can be filled by involving other courts – both internally at Member States level, and externally by involving international and/or third countries’ courts. Our main argument is that the Court’s suspicion in relation to alternative judicial oversight may be legitimate. However, acknowledged gaps in the EU system of judicial remedies in relation to the CFSP ought to be filled for the Union to meet the requirements of the rule of law.7 The incremental acknowledgement of the Court’s jurisdiction in relation to CFSP might not suffice, which should as a result leave space for complementary solutions. Yet, judging from the case law, the Court of Justice seems generally reluctant to tolerate any other judicial control over the CFSP. For the CJEU, involvement of international courts (or even domestic courts in third states) entails many risks in relation to safeguarding the autonomy of EU law (hence ‘the bad’). This was considered as an obstacle to the Union’s accession to the European Convention on Human Rights (ECHR), even if it could have filled at least that judicial gap. The Court thus held that ‘jurisdiction to carry out a judicial review of acts, actions or omissions on the part of the EU, including in the light of fundamental rights, cannot be conferred exclusively on an international court which is outside the institutional and judicial framework of the EU’.8 Similarly, while acknowledging that the role of Member States is not in itself a bad idea as it is even supported by the Treaties, it is generally seen as an unattractive

4

cf. RA Wessel, ‘The Dynamics of the European Union Legal Order: An Increasingly Coherent Framework of Action and Interpretation’ (2009) European Constitutional Law Review 117; and, more recently, RA Wessel, ‘Integration and Constitutionalisation in EU Foreign and Security Policy’ in R Schütze (ed.), Governance and Globalization: International and European Perspectives (CUP 2018). 5 Opinion 2/13 of the Court of 18 December 2014: Accession by the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms ECLI: EU:C:2014:2454, para 252: ‘as EU law now stands, certain acts adopted in the context of the CFSP fall outside the ambit of judicial review by the Court of Justice’. 6 See above (n 2). 7 As spelled out in Case 294/83 Les Verts v European Parliament EU:C:1986:166. 8 ibid, para 256.

‘The Good, the Bad and the Ugly’ 67 substitute (‘the ugly’) for the harmonizing role of the Court of Justice itself.9 The fact that the CFSP is part and parcel of the EU’s legal order may explain the underlying Court’s claim that it should itself exercise judicial control over this EU policy (hence ‘the good’), particularly in view of Article 344 TFEU. It remains that this position does not help to fill the constitutional gap, unless it is understood as pressing the Masters of the Treaty to address it by expanding the Court’s jurisdiction.

2. ‘THE GOOD’: THE COURT OF JUSTICE The Court’s view is that it should be the one deciding on the interpretation and validity of all EU law. Indeed, Kirchberg is the place to prevent disparities in EU law from occurring. However, since the Treaty of Lisbon, the Court of Justice has been entrusted only with a limited jurisdiction in relation to the CFSP. According to Article 24(1) TEU it shall not have jurisdiction with respect to these provisions [i.e. ‘specific provisions on the Common Foreign and Security Policy’ enshrined in Chapter 2 of the TEU10] with the exception of its jurisdiction to monitor compliance with Article 40 of this Treaty [TEU] and to review the legality of certain decisions as provided for by the second paragraph of Article 275 of the Treaty on the Functioning of the European Union.

‘The latter provision further specifies that the Court shall have jurisdiction to monitor compliance with Article 40 of the Treaty on European Union and to rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 of this Treaty, reviewing the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union’.

As argued elsewhere, these provisions have made it possible for the Court, albeit within limits, to exercise judicial control with regard to certain CFSP acts. They also recalibrate its role in patrolling the borders between EU (external) competences based on the TFEU and the CFSP, while generalizing its capacity to enforce the principles underpinning the Union’s legal order.11 The case law that has developed since the entry into force of these provisions displays the Court’s broad conception of its CFSP-related jurisdiction. Its basic understanding is encapsulated in the following formula: [T]he final sentence of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU introduce a derogation from the rule of the general jurisdiction which 9 Obviously, these qualifications are borrowed from the classic 1966 Western movie by Sergio Leone, The Good, The Bad, and the Ugly (Il buono, il brutto, il cattivo) . 10 See Case C-72/15 Rosneft ECLI:EU:C:2017:236, Opinion of AG Wathelet, para 46. 11 Hillion‘’ (n 2); RA Wessel, ‘Lex Imperfecta’ (n 2). For an analysis of the Court’s jurisdiction in relation to sanctions, see Chapter 10 in this volume.

68 Research handbook on the EU’s common foreign and security policy Article 19 TEU confers on the Court to ensure that in the interpretation and application of the Treaties the law is observed, and they must, therefore, be interpreted narrowly’ (emphasis added).12

Articles 24(1) TEU and 275(2) TFEU are thus not interpreted as establishing a distinct Court’s jurisdiction for the purpose of the CFSP. Rather, the judicial control it intends to perform in relation to that policy appears to be the same as the one it exercises generally, as envisaged in Article 19 TEU, albeit within the limits spelled out in those Articles. This ‘generalist’ (so to speak) conception of the Court’s jurisdiction in the area of CFSP led it to consider that its legality control over CFSP restrictive measures is not limited to annulment proceedings envisaged in Article 263(4) TFEU, but includes the possibility for it to give a preliminary ruling on their validity: Since the purpose of the procedure that enables the Court to give preliminary rulings is to ensure that in the interpretation and application of the Treaties the law is observed, in accordance with the duty assigned to the Court under Article 19(1) TEU, it would be contrary to the objectives of that provision and to the principle of effective judicial protection to adopt a strict interpretation of the jurisdiction conferred on the Court by the second paragraph of Article 275 TFEU, to which reference is made by Article 24(1) TEU … . In those circumstances, provided that the Court has, under Article 24(1) TEU and the second paragraph of Article 275 TFEU, jurisdiction ex ratione materiae to rule on the validity of European Union acts, that is, in particular, where such acts relate to restrictive measures against natural or legal persons, it would be inconsistent with the system of effective judicial protection established by the Treaties to interpret the latter provision as excluding the possibility that the courts and tribunals of Member States may refer questions to the Court on the validity of Council decisions prescribing the adoption of such measures.13

The Court’s legality control over certain CFSP acts is therefore the same as the one it exercises over other EU acts. It is an expression of its general mandate as established in Article 19 TEU;14 it is governed by the same principles, in particular the principle of effective judicial remedies enshrined in Article 47 of the Charter of Fundamental Rights.15 The application of the general EU rules on legality control to the CFSP context illustrates that the Court considers the CFSP as firmly embedded in the EU legal order, despite its procedural specificity mentioned in Article 24(1) TEU. Principles and rules of general application would thus be guaranteed through judicial oversight even where applied to a CFSP situation. The latter circumstance does not entail judicial immunity. Three illustrations come to mind: 12 Case C-658/11 EP v Council (Mauritius) ECLI:EU:C:2014:2025, para 70. See also Case C-439/13P Elitaliana ECLI:EU:C:2015:753, para 41; Case C-455/14P H v Council ECLI:EU: C:2016:569, para 40. 13 Rosneft (n 10). 14 Further on this general mandate, see C Hillion, ‘Conferral, Cooperation and Balance in the Institutional Framework of the EU External Action’ in M Cremona (ed.), Structural Principles in EU External Relations Law (Hart Publishing 2018). 15 cf. Cremona (n 2).

‘The Good, the Bad and the Ugly’ 69 First, the Court has made clear that since international agreements in the area of CFSP are concluded on the basis of the general provisions of Article 218 TFEU, albeit subject to some specific arrangements, the Court would exercise judicial control to ensure compliance with the terms of that procedure:16 [T]he obligation imposed by Article 218(10) TFEU, under which the Parliament is to be ‘immediately and fully informed at all stages of the procedure’ for negotiating and concluding international agreements, applies to any procedure for concluding an international agreement, including agreements relating exclusively to the CFSP … Article 218 TFEU, in order to satisfy the requirements of clarity, consistency and rationalisation, lays down a single procedure of general application concerning the negotiation and conclusion of international agreements by the European Union in all the fields of its activity, including the CFSP which, unlike other fields, is not subject to any special procedure.17

The application to a CFSP situation of a TFEU-based procedure does not therefore affect the Court of Justice’s jurisdiction in relation to that procedure.18 Second, and in the same vein, the Court has considered that it would have jurisdiction to control the legality of a decision awarding a public service contract in the context of an EU CSDP Mission given that the contract concerned involved an expenditure to be allocated to the EU budget, and thereby subject to the provisions of the EU Financial Regulation. Confirming the derogatory character of the terms of Articles 24(1) TEU and 275(2) TFEU, and consequently their narrow application, the Court concluded that [h]aving regard to the specific circumstances of the present case, the scope of the limitation, by way of derogation, on the Court’s jurisdiction, which is provided for in the final sentence of the second subparagraph of Article 24(1) TEU and in Article 275 TFEU, cannot be considered to be so extensive as to exclude the Court’s jurisdiction to interpret and apply the provisions of the Financial Regulation with regard to public procurement.19

16 T Tridimas, ‘The European Court of Justice and the Draft Constitution: A Supreme Court for the Union?’ in T Tridimas and P Nebbia (eds), European Union Law for the Twenty-First Century: Rethinking the New Legal Order. Vol. 1: Constitutional and Public Law. External Relations (Hart Publishing 2004) 128; G De Baere, Constitutional Principles of EU External Relations (OUP 2008) 190. 17 Case C-263/14 Parliament v Council (EU-Tanzania Transfer Agreement) ECLI:EU:C: 2016:435, para 68. 18 In the words of Peers: ‘the Court’s ruling means that any CFSP measure can be litigated before it, as long as the legal arguments relate to a procedural rule falling outside the scope of the CFSP provisions of the Treaty (Title V of the TEU). For instance, it arguably means that the Court would have the power to rule on the compatibility of proposed CFSP treaties with EU law, since that jurisdiction is conferred by Article 218 TFEU and not expressly ruled out by Article 275. But such disputes might often include arguments about the substance of the measure concerned (for instance, whether it would breach the EU’s human rights obligations), and it could be awkward to distinguish between procedural and substantive issues in practice.’ See: S Peers, ‘The CJEU Ensures Basic Democratic and Judicial Accountability of the EU’s Foreign Policy’ (EU Law Analysis, 24 June 2014) . 19 Elitaliana (n 12), para 49.

70 Research handbook on the EU’s common foreign and security policy Third, the EU judicature has applied a similar approach in H. v Council and Commission – a case brought by a staff member of the EU Police Mission in Bosnia and Herzegovina (EUPM), established under the CFSP.20 It thus reiterated that the scope of the limitation, by way of derogation, on the Court’s jurisdiction … cannot be considered to be so extensive as to exclude the jurisdiction of the EU judicature to review acts of staff management relating to staff members seconded by the Member States the purpose of which is to meet the needs of that mission at theatre level, when the EU judicature has, in any event, jurisdiction to review such acts where they concern staff members seconded by the EU institutions.21

The Court merely argued that on the basis of Article 270 TFEU, it had jurisdiction in any dispute between the Union and its servants ‘within the limits and under the conditions laid down in the Staff Regulations of Officials and the Conditions of Employment of other servants of the Union’, a provision which does not exclude CFSP-related disputes.22 It also found that its jurisdiction stemmed respectively, as regards the review of the legality of those acts, from Article 263 TFEU and, as regards actions for non-contractual liability, from Article 268 TFEU, read in conjunction with the second paragraph of Article 340 TFEU, taking into account Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights.23

Importantly, Article 2 TEU and Article 21 TEU, to which Article 23 TEU relating to the CFSP refers, were invoked to recall that the European Union is founded, in particular, on the values of equality and the rule of law. The above-mentioned rulings confirm that the Court of Justice considers the CFSP as part and parcel of the Union’s constitutional set-up.24 The CFSP does interact with other EU policies and rules, resulting in the Court’s more complex judicial involvement in CFSP-related situations than the acknowledged jurisdiction envisaged under Articles 24(1) TEU and 275(2) TFEU. Clearly, a CFSP context forms no basis for the Court to disregard general principles of EU law or rules applicable in other policy areas. As it clearly indicated in the H case: ‘While the decisions adopted … have an operational aspect falling within the CFSP, they also constitute, by their very essence, acts of staff management, just like all similar decisions adopted by the EU institutions in the exercise of their competences.’25 This is nothing new. It not only brings back memories 20 See more extensively: P Van Elsuwege, ‘A Court of Justice Upholding the Rule of Law in the Common Foreign and Security Policy: H v. Council’ (2017) 3 CML Rev 841; T Verellen, ‘H v. Council: Strengthening the Rule of Law in the Sphere of the CFSP, One Step at a Time’ (2016) 3 European Papers 1041. 21 H (n 12). Similarly – at least as argued by AG Jääskinen in his Opinion of 21 May 2015, in Elitaliana (n 12) – the EU Courts should be able to hear individuals on budgetary issues, even if a particular decision was taken by an entity established under the CFSP. 22 ibid, para 57. An important argument, also in the context of the present chapter, is that jurisdiction of the CJEU would prevent possible diverging case law of this Court and the domestic courts in the countries of respective staff. 23 ibid, para 58. 24 C Hillion (n 2); RA Wessel, ‘Lex Imperfecta’ (n 2). See also Chapter 1 in this volume. 25 H (n 12), para 54.

‘The Good, the Bad and the Ugly’ 71 of early CFSP case law, such as Hautala on access to documents,26 it is also the application of a well-established case law of the Court on the scope of EU law and application of horizontal principles.27 It is not the purpose of this chapter to comment further upon the Court’s approach.28 In the present discussion, it suffices to underline that, notwithstanding the broad articulation and exercise of the Court’s jurisdiction in relation to the CFSP, gaps remain ‘as EU law stands’.29 The Court notably acknowledged in Opinion 2/13 that: ‘certain acts adopted in the context of the CFSP fall outside the ambit of judicial review by the Court of Justice’.30 Thus, only restrictive measures are subject to the CJEU legality control under the terms of Articles 24(1) TEU and 275(2) TFEU, and these have not been understood (as yet) in a particularly broad fashion to ensure compliance with the requirement of effective judicial protection across the CFSP field.31 Indeed, clarification is needed as regards the Court’s possible oversight of international agreements in the area of CFSP considering that, as mentioned earlier, they are negotiated and concluded in accordance with Article 218 TFEU, in relation to which the Court exercises full jurisdiction. Also, it remains uncertain whether, following the seminal Rosneft ruling, other courses of action, such as the interpretative function of the preliminary ruling procedure, or the action for damages, which play a role in ascertaining effective judicial protection, are available in the context of the CFSP, at least in situations involving acts for which the CJEU has jurisdiction.32 To be sure, the Court lacks jurisdiction in pure CFSP (or CSDP)33 situations, namely when disputes arise about decision-making procedures established in the CFSP chapter. This means, for instance, that the European Parliament can commence proceedings before the Court in cases where the Council has, for example, ignored its powers as envisaged in decision-making procedures set out in the specific CFSP chapter, if the CFSP competence is not otherwise disputed on the basis of Article 40(1) TEU. The interpretation and implementation of the CFSP provisions (including the procedures to be followed) in these situations is left to the Council (or even to individual Member 26

Case C-353/99 P, Council of the European Union v Heidi Hautala ECLI:EU:C:2001:661. See e.g. P Koutrakos, ‘Primary Law and Policy in EU External Relations – Moving Away from the Big Picture’ (2008) 33 EL Rev 666. 28 For various views on this case law see: Van Elsuwege (n 20); T Verellen, ‘H v. Council: Strengthening the Rule of Law in the Sphere of the CFSP, One Step at a Time’ (December 2016) European Papers – European Forum 1; S Øby Johansen, ‘H v. Council et al. – A Minor Expansion of the CJEU’s Jurisdiction over the CFSP’ (October 2016) European Papers – European Forum 1; S Poli, ‘The Common Foreign Security Policy After the Rosneft Ruling: Still Imperfect but Gradually Subject to the Rule of Law’ (2017) CML Rev 1799. 29 Opinion 2/13 (n 5), para 252. 30 ibid. 31 See in this respect the Commission’s views in the context of Opinion 2/13 (n 5), and the Court’s analysis of the provisions of the impugned decision in Rosneft (n 10), paras 75ff. 32 See in this respect: Opinion of AG Wathelet in the Rosneft case (n 10) at footnote 36; Case T-328/14 Jannatian v Council ECLI:EU:T:2016:86, paras 30–31; cf. Case T-602/15 Jenkinson v Council ECLI:EU:T:2016:660, para 45 – under appeal, see Case C-43/17 P. 33 For questions on contractual and non-contractual liability of the Union for CSDP operations, see Chapter 7 in this volume. 27

72 Research handbook on the EU’s common foreign and security policy States), unless the case is framed as a violation of Article 13(2) TEU, which would arguably allow the Court’s involvement.34 Remembering their initial preference for ‘intergovernmental’ cooperation where CFSP is concerned, it may be understandable that Member States intended at the time of the negotiations to prevent a body of ‘CFSP law’ coming into being by way of judicial activism on the part of the Court of Justice, but it is less understandable that they were also reluctant to allow for judicial control of the procedural arrangements they explicitly agreed upon. Though, admittedly, it may be difficult to separate procedures and content. Despite the limits to the Court’s jurisdiction, we may therefore not yet have seen the full picture. For instance, does the reference to Article 263(4) TFEU in Article 275 TFEU limit direct actions to those initiated by individuals, or can actions by the institutions or by Member States inter se be foreseen on the basis of a contextual interpretation by the Court? Earlier, we argued that there are good reasons to apply the principle of sincere cooperation (as currently formulated in Article 4(3) TEU) across the board, including CFSP.35 Despite the current absence of concrete cases, a use of this principle by the Court to settle procedural (or even substantive) conflicts between the institutions and the Member States or the Member States inter se, in a CFSP context cannot be ruled out.36 The recent case law taking general principles of EU law as a starting point only supports this assertion, although it remains clear that the CFSP context should be merely ‘incidental’, allowing the principle of sincere cooperation to be applicable. Gaps nevertheless remain in the CJEU’s control of the CFSP. This is all the more problematic since the Court has not attempted to dissuade the use of CFSP instruments since the entry into force of the Lisbon Treaty. Even if the CFSP course of action entails derogatory limits to judicial oversight which should be understood narrowly, the Court does not seem to develop a case law that gives preference to TFEU-based policies as a result. It has instead signalled that it is taking its post-Lisbon border patrolling function seriously (based on Article 40 TEU)37 deferring to the Treaty drafters’ 34

On Art. 13(2) TEU, see Hillion (n 14). Hillion and Wessel (n 1). 36 One may think of Member States concluding international agreements in areas covered by EU legislation or agreements, but perhaps even of conflicts on agreed (financial) contributions to CFSP/CSDP actions. 37 In 2012, the Court was given a first chance to develop an approach towards the function of Article 40 in Case C-130/10 Parliament v Council ECLI:EU:C:2012:472. It held that Article 215 TFEU (following a previous CFSP decision) rather than Article 75 TFEU (in the Area of Freedom, Security and Justice – AFSJ) was the correct choice, despite the limited role of the European Parliament in relation to the CFSP/Article 215 procedure. The context of peace and security proved to be decisive for the Court’s conclusion. Subsequent cases include Case C-658/11 (Mauritius) (n 12) and Case C-263/14 (Tanzania) (n 17). See more extensively Chapter 1 in this volume; C Matera and RA Wessel, ‘Context or Content? A CFSP or AFSJ Legal Basis for EU International Agreements – Case C-658/11, European Parliament v. Council (Mauritius Agreement)’ (2014) Revista de Derecho Comunitario Europeo 1047; Van Elsuwege (n 20); and C Hillion, ‘Fighting Terrorism through the CFSP’ in I Govaere and S Poli (eds), EU Management of Global Emergencies (Brill 2014). The more recent judgment Kazakhstan case (Case C-244/17 Commission v Council ECLI:EU:C:2018:662) however sheds some light on the limits of that approach. 35

‘The Good, the Bad and the Ugly’ 73 choice to keep the CFSP as a distinct policy framework involving specific institutional balance. The use of the CFSP procedures, and some implications in terms of limited CJEU oversight, are arguably here to stay as long as the Treaties are not modified. Having identified recurrent gaps in the CJEU control over the CFSP, one may then have to examine possible alternative avenues to ensure effective judicial remedies, as required by both Article 47 of the Charter of Fundamental Rights and Article 19 TEU. As the Court of Justice underlined in the H ruling, ‘the very existence of effective judicial review designed to ensure compliance with provisions of EU law is inherent in the existence of the rule of law’.38 In Opinion 2/13, the Court, however, made clear its reluctance in accepting that an international Court, in casu the European Court of Human Rights (ECtHR), could have jurisdiction in relation to CFSP acts over which it could not itself exercise control. It also suggested, although implicitly, that Member States’ courts did not have a role to play. The next two sections further discuss this approach.

3. ‘THE BAD’: INTERNATIONAL/EXTERNAL JUDICIAL CONTROL When introduced by the 1992 Maastricht Treaty, CFSP was often seen as falling outside EU law. In fact, some early publications viewed the then newly established second pillar as international law (if the rules were considered legal at all).39 While the present authors have maintained that CFSP has always been part and parcel of the EU’s legal order,40 since the entry into force of the Lisbon Treaty it seems even more difficult to argue otherwise. The question therefore arises as to whether Article 344 TFEU also applies to disputes on the basis of CFSP acts and obligations and, if so, to what extent. Article 344 TFEU provides that ‘Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein’. This provision has continuously been used by the CJEU to claim its exclusive jurisdiction whenever the interpretation or application of EU law is at stake,41 and the Court’s case law has developed the conditions under which participation of the EU in international dispute settlement systems can be allowed.42 38

See the H case (n 12), para 41; also in Rosneft (n 10), para 77. See for an early analysis of those studies: RA Wessel, The European Union’s Foreign and Security Policy: A Legal Institutional Perspective (Kluwer Law International 1999). 40 See for instance RA Wessel, ‘The Dynamics of the European Union Legal Order: An Increasingly Coherent Framework of Action and Interpretation’ (2009) 1 European Constitutional Law Review 117; C. Hillion, ‘Tous pour un, Un pour tous! Coherence in the External Relations of the European Union’ in M Cremona (ed.), Developments in EU External Relations Law (OUP 2008). 41 See further below and for instance Opinion 1/91 ECLI:EU:C:1991:490, para 35 and Opinion 1/00 ECLI:EU:C:2002:231, paras 11–12; judgments in C-459/03 Commission v Ireland ECLI:EU:C:2006:345, paras 123 and 136, and Kadi and Al Barakaat International Foundation v Council and Commission ECLI:EU:C:2008:461, para 282. 42 See C Hillion and RA Wessel, ‘The European Union and International Dispute Settlement: Mapping Principles and Conditions’ in M Cremona, A Thies and RA Wessel (eds), The 39

74 Research handbook on the EU’s common foreign and security policy Following the present chapter’s metaphor, external judicial involvement has in effect been viewed as ‘bad’ in the eyes of the Court, despite its declared openness towards international jurisdiction.43 Indeed, in Opinion 2/13, the CJEU confirmed the complexities related to the EU’s submission to external judicial scrutiny.44 In answering the question of whether the Union could join the ECHR, the Court pointed to a number of (classic) principles and conditions inherent in the nature of EU law, which in effect encapsulate the difficulties of a combination of EU law and international dispute settlement. For the purpose of the present chapter it is relevant to point to specific paragraphs in which the Court addresses the external judicial review of CFSP measures. As stated earlier, it expressed its displeasure with the idea that the ECtHR would be able to rule on the compatibility with the ECHR of ‘certain acts, actions or omissions performed in the context of the CFSP’ which ‘fall outside the ambit of judicial review by the Court of Justice’.45 The issue was also referred to by Advocate General Kokott when she argued that ‘accession to the ECHR will undoubtedly mean that the EU must respect the fundamental rights protection that stems from the ECHR – and thus also the requirement of effective legal protection in accordance with Articles 6 and 13 ECHR – in all its spheres of activity, including the CFSP’.46 The Opinion also raised the key question of whether the legal protection in the CFSP afforded by the EU legal order could be regarded as effective legal protection for the purposes of Articles 6 and 13 ECHR. The Commission’s view on this point is noteworthy. In the words of AG Kokott: It proposes that [Article 275 TFEU] be understood as meaning that the Court of Justice of the EU not only has jurisdiction over actions for annulment brought by individuals against restrictive measures, but it may in addition deal with actions for damages and reply to requests for preliminary rulings from national courts or tribunals in the sphere of the CFSP. It also advocates handling the options for the legal protection of individuals in the CFSP in such a way as to cover not only acts, within the meaning of the first paragraph of Article 263 TFEU, which produce binding legal effects, but also mere ‘material acts’ (Realakte), that is to say, acts without legal effects.47 European Union and International Dispute Settlement (Hart Publishing 2017); as well as T Lock, The European Court of Justice and International Courts (OUP 2015). 43 Opinion 1/76, European Laying-up Fund for Inland Waterways ECLI:EU:C:1977:63. Further: see Hillion and Wessel (n 42); see also: B De Witte, ‘A Selfish Court? The Court of Justice and the Design of International Dispute Settlement Beyond the European Union’ in M Cremona and A Thies (eds), The European Court of Justice and External Relations Law: Constitutional Challenges (Hart Publishing 2014) 33. 44 Opinion 2/13 (n 5). See also View of AG Kokott, ECLI:EU:C:2014:2475. For an academic appraisal see, inter alia, A Łazowski and RA Wessel, ‘When Caveats turn into Locks: Opinion 2/13 on Accession of the European Union to the ECHR’ (2015) 16(1) German Law Journal 179; as well as A Łazowski and RA Wessel, ‘The European Court of Justice Blocks the EU’s Accession to the ECHR’ (CEPS Commentary, 8 January 2015) . 45 Opinion 2/13 (n 5), para 252. 46 View of AG Kokott (n 44), para 83. 47 ibid, para 86.

‘The Good, the Bad and the Ugly’ 75 While the Commission may be complimented for the daring view that in certain circumstances the extended jurisdiction of the Court flows from the post-Lisbon EU legal order,48 Advocate General Kokott was not convinced. Indeed, and perhaps even more interestingly, she argued: the very wide interpretation of the jurisdiction of the Courts of the EU which it proposes is just not necessary for the purpose of ensuring effective legal protection for individuals in the CFSP. This is because – the entirely accurate – assertion that neither the Member States nor the EU institutions can avoid a review of the question whether the measures adopted by them are in conformity with the Treaties as the basic constitutional charter does not necessarily always have to lead to the conclusion that the Courts of the EU have jurisdiction.49

As will be discussed in the following section, the reason would be that ‘national courts or tribunals have, and will retain, jurisdiction’.50 Despite this option, the question remains – as acknowledged by Advocate General Kokott – of whether effective legal protection in relation to the CFSP can be provided by the EU’s multilevel system itself. And it is this situation that forms the source of the Court’s worries as it would perhaps give room to a ‘non-EU body’ to exercise powers that were consciously left out of the EU Treaties for the CJEU itself. In Opinion 2/13, the Court also aimed to prevent other courts from considering possible human rights violations. But it is doubtful whether this claim can be made. The choice by the EU Treaty drafters at the time to maintain a special position for many CFSP norms as far as their judicial review is concerned does not imply that possible human rights violations in relation to CFSP actions should in general be exempt from judicial scrutiny. Arguably, the reason for the special arrangement was rather to prevent judicial activism in this area of EU competence. These days, the gap in the judicial control over CFSP – which, as we have seen, is recognized by the Court itself – leads to examining the extent to which courts outside the EU can have a role in the judicial scrutiny of CFSP. Given the link between CFSP and other external EU action, CFSP matters could in theory be subject to dispute resolution before several different tribunals.51 However, we will focus first on the European Court of Human Rights, second on the International Court of Justice and third on the national courts of third states. With regard to a possible role for the ECtHR, we have seen that Opinion 2/13 does not exclude it. In fact, this was one of the reasons for the CJEU to advise against the Accession Agreement. In the words of the Court of Justice, the ECtHR could rule on the compatibility with the ECHR of ‘certain acts, actions or omissions performed in the context of the CFSP’.52 Obviously – as the EU is not (yet) a party to the ECHR – these could only be actions by the Member States. It is also clear that the ECtHR will only examine compatibility with the ECHR and cannot function as a tribunal to supervise or 48

C. Hillion, ‘A Powerless Court?’ (n 2) and RA Wessel ‘Resisting Legal Facts’ (n 2). AG View (n 44), para 95. 50 ibid, para 96. 51 For example, EU maritime operations such as EUNAVFOR Somalia/Atalanta, could trigger questions related to the law of the sea which could end up before the International Tribunal for the Law of the Sea (ITLOS). 52 Opinion 2/13 (n 5), para 7. 49

76 Research handbook on the EU’s common foreign and security policy enforce the implementation of CFSP obligations as such. In that sense, the role of the Strasbourg Court in judicial control over CFSP is limited, although it may be confronted with questions on the interpretation and application of EU law. In the context of the present analysis, the current role of the ECtHR is thus circumscribed to possible violations of the Convention by states in the implementation of CFSP, including CSDP. While this role of the Strasbourg Court is similar to that exercised in other policy areas of the EU, an important difference lies in the fact that the Court’s case law has traditionally taken the possibilities for judicial scrutiny by the EU into account when dealing with possible violations of the Convention by Member States related to an implementation of EU decisions. The well-known Bosphorus and Matthews case law serves as the basis for this line of thinking,53 and the judicial protection offered by the EU has generally been seen as providing an adequate alternative. On the basis of this ‘arrangement’ it has been argued that ‘conflicts have been rare, but the threat was ever present’.54 Obviously, this threat is less evident when the CJEU itself cannot offer the full review of CFSP measures. In general, there are no reasons to question the authority of the ECtHR to assess acts or conduct of EU Member States in relation to external action of the European Union. As long as the Union is not a party to the ECHR, it will obviously not be able to breach it, even though the Union’s missions and other external actions are based on EU decisions.55 According to the Behrami and Saramati case law, the Union could nevertheless be responsible for these violations when their authors are acting on behalf of the Union and are under its control; which in turn has consequences for the responsibilities for its Member States (i.e. the parties to the ECHR).56 In recent years, the rules governing the attribution of wrongful acts committed in the context of peace support operations have been the subject of intense discussion, in particular since the Strasbourg case law mentioned above. Although this debate has demonstrated that academic opinion insists on a high level of factual control for holding states and

53 Matthews v United Kingdom (1999) 28 EHRR 361; Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v Ireland (2006) 42 EHRR 1. 54 See JP Jacqué, ‘The Accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms’ (2011) CML Rev 995, 1001. 55 The question of international responsibility of the EU for CFSP actions is still under debate. We would point to the fact that CFSP, like other Union policies, is based on EU decision, pointing towards the responsibility of the EU as such. See Chapter 7 in this volume as well as A Sari and RA Wessel, ‘International Responsibility for EU Military Operations: Finding the EU’s Place in the Global Accountability Regime’ in B Van Vooren, S Blockmans and J Wouters (eds), The EU’s Role in Global Governance: The Legal Dimension (OUP 2013). For others: ‘it would be difficult to argue that an action committed by a Member State when complying with a CFSP measure is to be understood as having been committed by the EU by virtue of its normative control’; see A Delgado Casteleiro, The International Responsibility of the European Union: From Competence to Normative Control (CUP 2016). 56 Behrami v France and Saramati v France, Germany and Norway (2007) 45 EHRR SE10. See also Jacqué (n 54) and A Sari, ‘Autonomy, Attribution and Accountability: Reflections on the Behrami Case’ in ND White and R Collins (eds), International Organizations and the Idea of Autonomy: Institutional Independence in the International Legal Order (Routledge 2011).

‘The Good, the Bad and the Ugly’ 77 international organizations responsible for the conduct of peace operations,57 it has stopped short of addressing the underlying question of whether factual control is the only relevant ground of attribution in this context. In general, states usually transfer only limited powers of operational control over their forces to international organizations, and retain supreme authority, known as full command, for themselves.58 The armed forces of a state thus never lose their institutional status as state organs during their secondment to an international organization and could thus remain responsible even if their actions take place in the context of a military operation initiated by an international organization. However, within the EU context, responsibility questions seem more complex. As a distinct chapter in this volume is specifically devoted to the responsibility and liability for CSDP operations,59 we will limit ourselves to a few general observations with regard to the possible role of external courts. The legal status of the missions and their staff is regulated in Status of Forces Agreements (SOFAs) or Status of Mission Agreements (SOMAs). The absence of an extensive practice60 makes it difficult to present concrete examples, especially since, as stated by Heliskoski ‘virtually all claims lodged under SOFAs and SOMAs in the context of CSDP operations are sorted out by means of amicable settlement’. First of all, civilian missions now have an accepted distinct legal capacity, albeit under EU law only.61 In general, it has been argued that if it can be established that EU military missions constitute ‘subsidiary organs’ of the EU, a rebuttable presumption may be said to exist in favour of attributing their wrongful conduct to the Union, rather than to the contributing states.62 Since all legal acts relating to the launch, conduct and termination of EU military operations are adopted by the Council of the EU,63 the latter is the only EU institution capable, in principle, of establishing military operations as its subsidiary organs (compare the arguments 57

See, for instance, K Mujezinovic´ Larsen, ‘Attribution of Conduct in Peace Operations: The “Ultimate Authority and Control Test”’ (2008) 19 European Journal of International Law 509. 58 See, for instance, B Cathcart, ‘Command and Control in Military Operations’ in T Gill and D Fleck (eds), The Handbook of the International Law of Military Operations (OUP 2010). See also S Johansen, The Accountability Mechanisms of International Organisations – A Framework and Three Case-Studies (Oslo University 2017) esp. 143–201. 59 Chapter 7 in this volume. 60 See F Naert, ‘Shared Responsibility in the Framework of the EU’s CSDP Operations’ in A Nollkaemper and I Plakokefalos (eds), The Practice of Shared Responsibility in International Law, Vol. III (CUP 2017) 3689. 61 These missions are now endowed with a legal personality under EU law, including ‘the capacity to … be a party to legal proceedings, as required in order to implement [the] Joint Action [concerned]’. See, for instance, Art. 15 bis of Council Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO [2008] OJ L 340/73, as amended by Council Decision 2014/349/CFSP [2014] OJ L 174/42. See further Chapter 7 in this volume. 62 Sari and Wessel (n 55). See also Heliskoski (Chapter 7 in this volume): ‘a presumption that responsibility under public international law for the conduct of CSDP operation or missions is borne by the EU in its own right rather than by the Member States’. 63 cf. F Naert, ‘Legal Aspects of EU Military Operations’ (2011) Journal of International Peacekeeping 218; P Koutrakos, The EU Common Security and Defence Policy (OUP 2013).

78 Research handbook on the EU’s common foreign and security policy used in the H case mentioned above). The decision-making procedures or voting rules (unanimity) do not affect the nature of the Council Decision.64 This seriously limits the possibilities for the ECtHR to scrutinize CFSP/CSDP actions by EU Member States to situations in which Member States would not act on behalf of the Union, but would, for instance, go beyond their mandate. More generally, Naert has pointed to a number of complexities in the application of human rights law to CSDP operations: ‘the extraterritorial application of the European Convention on Human Rights, the question of derogation in times of emergencies and its applicability to peace operations, the relationship between human rights and international humanitarian law and the impact of UN Security Council mandates on human rights’.65 Again, these factors limit the possibilities of seeing the ECtHR as being able to fill possible gaps in the judicial control of CFSP/CSDP. This brings us to the question of whether other international courts could play a role in dealing with CFSP questions. Given the subject matter, the International Court of Justice (ICJ) could be an obvious candidate. In the course of the development of the CFSP, this option has occasionally been mentioned, but also rejected. As held by Denza in 2002: Although reference is sometimes made to the possibility to adjudication of disputes between Member States by the International Court of Justice, this is clearly not a realistic option for most disputes given the time scale required for the ICJ to reach a decision. The actual use by Member States of the ICJ to adjudicate on the intergovernmental provisions of the TEU would, moreover, certainly undermine the role of the ECJ as a constitutional guarantor of the legal order of the European Union – in particular the requirement of unity and consistency.66

Leaving aside the reference to ‘intergovernmental provisions’ in the context of the EU in this respect, the second part of the argument indeed makes sense. It is important to recall that in this context Article 344 TFEU also seems to exclude the possibility for Member States to settle potential CFSP disputes before the ICJ, despite the restrictive role of the CJEU as mentioned in Article 275 TFEU. As was made clear in Opinion 2/13, the prohibition on submitting a dispute to another court is not dependent on the CJEU itself having jurisdiction in that particular field.67 This leaves us with the question of whether third states may initiate proceeding before the International Court and sue EU Member States in cases of, for instance, disagreements related to international agreements concluded in the area of CFSP or CSDP. While, as we have seen, the exclusivity of the Court’s jurisdiction would usually prevent EU Member States from settling disputes involving the interpretation of EU law elsewhere, it is more difficult to find legal arguments to prevent third states from initiating international legal proceedings. As the EU as such has no standing before the

64 This is not to say that Member State liability is always excluded. For a detailed analysis, see Chapter 7 in this volume. 65 Naert (n 63) 237. 66 E Denza, The Intergovernmental Pillars of the European Union (OUP 2002) 322. 67 See also Lock (n 42) 88.

‘The Good, the Bad and the Ugly’ 79 ICJ, these actions could only involve the Member States.68 So far, however, international agreements in the area of CFSP/CSDP have been concluded by the EU alone. Again, the fact that the Council decides on the basis of unanimity does not change the nature of the Decision adopting the agreement. This would only be the case if the Decision were not taken by the Council as such, but by Member States’ representatives acting ‘in the framework of the Council’.69 Perhaps ironically, mixity is not used in this area and hence Member States do not bear individual responsibilities under international law, but only through Union law. This is not to say that CFSP issues may, theoretically, not come up in ICJ proceedings.70 Again one may think of situations in which EU Member States have allegedly violated international law in the margins of activities which fall within the framework of an EU operation. The facts of the case will be decisive in establishing their international responsibilities. One may also think of political decisions on, for instance, individual sanctions which could come into conflict with existing obligations under international diplomatic law. While for EU Member States this could lead to conflicting obligations under EU (CFSP) law and international law, nothing seems to stand in the way of third states using available ICJ procedures to hold other states responsible, even when these other states happen to be EU members. So far, however, practice has not provided any concrete examples. Apart from the ICJ, other international courts could be confronted with questions related to CFSP. One example could be the International Criminal Court in the event of a violation by nationals of EU Member States of the rules on genocide, crimes against humanity and war crimes during the operations of CSDP missions. At present, all EU Member States are States Parties to the Rome Statute. It is also important to remember that the EU and its Member States accept that if EU-led forces become a party to an 68 cf. the cases before the ICJ of Serbia and Montenegro (then composite republics of one single state) against eight NATO member states (Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal and the United Kingdom), asking the ICJ to hold each of the respondent states responsible for international law violations stemming from the NATO bombing campaign against Yugoslavia in March–April 1999. Here also, Serbia and Montenegro chose to sue a number of Member States irrespective of the fact that the actions were based on a NATO decision and also coordinated by NATO. As, according to the ICJ, Serbia and Montenegro, lacked standing, the Court did not have a chance to consider the merits of the case. The cases can be accessed through the website of the ICJ: . 69 We are not aware of existing examples of CFSP Decisions taken in the framework of the Council. Yet, a recent external relations example is the Decision of the Heads of State or Government of the 28 Member States of the European Union, meeting within the European Council, on the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part, annexed to the European Council Conclusions on Ukraine of 15 December 2016. 70 In general, EU law has not played a role in disputes before the ICJ. Only a very indirect reference to EU law may perhaps be found in the ICJ judgment on the Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua), where the CJEU’s view on commercial policy as presented in its Opinion 1/76 was accepted by the ICJ. See more extensively RA Wessel, ‘Flipping the Question: The Reception of EU Law in the International Legal Order’ (2016) Oxford Yearbook of European Law 533. While there are indeed no practical examples at this moment, the Gabcíkovo-Nagymaros (Hungary v Slovakia) case, for instance, revealed that international rules may collide with EU obligations.

80 Research handbook on the EU’s common foreign and security policy armed conflict, international humanitarian law will apply to them fully.71 Specific situations could furthermore lead to proceedings before specialized tribunals, such as the International Tribunal for the Law of the Sea (ITLOS), whenever law of the sea disputes arose during or as a result of a CSDP mission. Obviously, however, these disputes could not relate to interpretation of EU law, but merely of – in this case – the rules on the law of the sea. Finally, could one envisage CFSP disputes being brought to and settled by national courts of third states, for instance states where the EU is active through military missions? Again, it is important to underline the obvious: not just because of Article 344 TFEU, but also because of jurisdictional problems, it would not be possible for Member States inter se to have their disputes settled by those courts. However, there is no reason in principle why local or national courts would not have the competence to deal with disputes between third states or local actors and Member States, for instance in relation to the responsibility for wrongful acts committed by CFSP missions or alleged violations of domestic or even international law. In the case of CSDP missions, the SOFAs would generally mention ‘respect’ for local law, although the view is usually taken that ‘respect’ does not mean ‘comply with’ and therefore imposes lower standards.72 Moreover, the application of domestic law would generally be ruled out in the provisions in the agreement dealing with the privileges and immunities of the EU mission.73 While it is not unusual in international law to confer diplomatic privileges and immunities on foreign military and civilian personnel, it has been noted that in the case of EU missions the privileges and immunities are much more extensive and are not only conferred on the higher-ranking staff.74 The EU Model SOFA and SOMA75 grant EU missions’ personnel immunity from the criminal jurisdiction of the host state ‘under all circumstances’.76 At the same time, the sending states retain ‘all the criminal jurisdiction and disciplinary powers conferred on them by the law of the Sending State’.77 Furthermore, the missions’ personnel are exempted from the civil and administrative jurisdiction of the host state ‘in respect of words spoken or written and all acts performed by them in the exercise of their official functions’.78 A role for domestic courts in third states cannot be fully excluded in cases related to so-called ordinary activities, such as driving for private reasons or contracting on the local 71

F Naert, International Law Aspects of the EU’s Security and Defence Policy, with a Particular Focus on the Law of Armed Conflict and Human Rights (Intersentia 2010) 463–540. 72 Naert (n 63) 240. 73 See on these agreements P Koutrakos, The EU Common Security and Defence Policy (OUP 2013) 198–202; Naert (n 63); A Sari, ‘Status of Forces and Status of Mission Agreements under the ESDP: The EU’s Evolving Practice’ (2008) European Journal of International Law 67. 74 Sari (n 73) 78–79; also Naert (n 63) 250, calling the situation ‘unusual’. 75 See Draft Model Agreement on the status of the European Union-led forces between the European Union and a Host State, Council of the European Union (SOFA), 20 July 2007, Doc. 11894/07; and Draft Model Agreement on the Status of the European Union Civilian Crisis Management Mission in a Host State (SOMA), Council of the European Union, 15 December 2008, Doc. 17141/08. 76 Art. 6(3) EU Model SOFA; Art. 6(3) EU Model SOMA. 77 Art. 8 EU Model SOFA; Art. 8 EU Model SOMA. 78 Art. 6(4) EU Model SOFA; Art. 6(4) EU Model SOMA.

‘The Good, the Bad and the Ugly’ 81 market. With regard to lawsuits in third countries, practice offers a variety of situations, including the following: traffic incidents involving EU Delegations’ staff (where in each case the EU examines whether or not to lift immunity for the purpose of local proceedings); criminal proceedings against an international contracted staff member of an EU mission, where the local authorities imprison the person in question, in clear violation of the relevant provisions of the Status of Mission Agreement (but where the host country reminded the EU that the SOMA also calls for mission staff to respect local laws and where the staff member could only be released after some diplomatic effort); and disputes about whether an employment contract with local personnel was concluded by the Head of Delegation in his private or official capacity.79 Overall, however, the role of international courts and courts of third countries in relation to CFSP seems to be limited by the CJEU’s wide interpretation of Article 344 TFEU (as in the case of the ECtHR), the lack of standing of the EU (the ICJ) or the quite extensive rules on EU immunities (courts in third states). The H case also revealed that the proceedings initiated by Ms H before Italian courts gave the CJEU no reason to reconsider the division of judicial tasks.80 This brings us to the question of what role, if any, Member States’ courts could then play in relation to the CFSP.

4. ‘THE UGLY’: MEMBER STATES’ COURTS As is well established, Member States’ systems of remedies are integrated in the EU judicial system. According to Article 19 TEU, Member States must provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.81 Yet, in the eyes of the Court of Justice, it would be difficult (or perhaps ‘ugly’) to allow domestic courts to play a leading role in EU law without at least a harmonizing role for the Court itself. As mentioned in Rosneft: The Court must reject the argument that it falls to national courts and tribunals alone to ensure effective judicial protection if the Court has no jurisdiction to give preliminary rulings on the validity of decisions in the field of the CFSP that prescribe the adoption of restrictive measures against natural or legal persons.82

The Court of Justice has further spelled out the role that national courts are to play in ensuring that in the interpretation and application of the Treaties, the law is observed. Thus, in its Opinion on the Unified Patent Court,83 it held:

79 Informal note issued by the European Commission in March 2010 (available online at ). See more extensively on these examples: RA Wessel, ‘Immunities of the European Union’ (2014) International Organizations Law Review 395. 80 H (n 12), para 19. 81 This section builds on Hillion (n 1). 82 See Rosneft (n 10), para 77. 83 Opinion 1/09 Unified Patent Court ECLI:EU:C:2011:123.

82 Research handbook on the EU’s common foreign and security policy As is evident from Article 19(1) TEU, the guardians of [the] legal order and the judicial system of the European Union are the Court of Justice and the courts and tribunals of the Member States … . It should also be observed that the Member States are obliged, by reason, inter alia, of the principle of sincere cooperation, set out in the first subparagraph of Article 4(3) TEU, to ensure, in their respective territories, the application of and respect for European Union law … . Further, pursuant to the second subparagraph of Article 4(3) TEU, the Member States are to 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 European Union. In that context, it is for the national courts and tribunals and for the Court of Justice to ensure the full application of European Union law in all Member States and to ensure judicial protection of an individual’s rights under that law. The national court, in collaboration with the Court of Justice, fulfils a duty entrusted to them both of ensuring that in the interpretation and application of the Treaties the law is observed (emphases added).

Based on this general statement, it is arguable that as co-‘guardians of [the] legal order and the judicial system of the European Union’, Member States’ courts and tribunals should be called upon to ensure compliance with provisions of EU law in the context of the CFSP where the CJEU itself does not have jurisdiction. Nothing in the Treaties suggests that the restrictions applicable to Court of Justice’s powers, based on Articles 24(1) TEU and 275(1) TFEU, concern in any way the jurisdiction of Member States’ courts. On the contrary, Article 274 TFEU stipulates: ‘Save where jurisdiction is conferred on the Court of Justice of the European Union by the Treaties, disputes to which the Union is a party shall not on that ground be excluded from the jurisdiction of the courts or tribunals of the Member States.’ In this sense, Advocate General Kokott underlined in her View in the Opinion procedure 2/13, that ‘this follows from the principle of conferral, according to which competences not conferred upon the EU in the Treaties remain with the Member States’.84 The restricted jurisdiction of the Court of Justice per Articles 24(1) TEU and 275(2) TFEU should thus involve the commensurate involvement of Member States’ judiciaries precisely to offset the Court’s inability to ensure that the law is observed in the interpretation and application of some aspects of the CFSP. Article 19 TEU indeed points to this complementary role, inspired by the Court of Justice’s case law,85 when requiring Member States to ‘provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’, to avoid ‘a lacuna … in the legal protection system’,86 and thus to fulfil the requirement of Article 47 of the EU Charter of Fundamental Rights (CFR).87 Given that the Court of Justice itself cannot provide 84

See View of AG Kokott (n 44), esp. para 96. For an academic appraisal see, inter alia, Łazowski and Wessel (n 44). 85 See e.g. Case C-583/11 Inuit Tapiriit Kanatami and Others v Parliament and Council ECLI:EU:C:2013:62; Case C-50/00 P Unión de Pequeños Agricultores v Council ECLI:EU:C: 2002:462. 86 View of AG Kokott (n 44), para 85. 87 Art. 47 CFR stipulates: ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

‘The Good, the Bad and the Ugly’ 83 legal protection, the notion of sufficiency entails that it is for the Member States to provide effective remedies. Advocate General Kokott discussed the role of national judiciaries extensively in her ECHR Opinion.88 The Court, by contrast, did not. In mentioning that ‘accession would effectively entrust the judicial review of those acts, actions or omissions on the part of the EU exclusively to a non-EU body’ (emphasis added),89 it suggested instead, albeit obliquely, that Member States’ courts are not able to review the legality of CFSP acts, even those that fall outside its jurisdiction. For the Court of Justice, its exclusion from certain aspects of the CFSP sphere is seemingly tantamount to an exclusion of the whole EU judicial system, including Member States’ courts as EU courts, despite the express provision of Article 274 TFEU, the unequivocal language of Opinion 1/09, and the obligations enshrined in Article 19 TEU. Admittedly, allowing Member States’ courts to review the legality of certain EU acts would undoubtedly complicate the functioning of the EU legal order. This is a well-known concern for the Court of Justice, which was forcefully expressed in its Foto-Frost judgment in which it concluded that those courts do not have the power to declare acts of the Community institutions invalid. As the Court emphasized in the judgment of 13 May 1981 in Case 66/80 International Chemical Corporation v Amministrazione delle Finanze [1981] ECR 1191, the main purpose of the powers accorded to the Court by Article [267 TFEU] is to ensure that Community law is applied uniformly by national courts. That requirement of uniformity is particularly imperative when the validity of a Community act is in question. Divergences between courts in the Member States as to the validity of Community acts would be liable to place in jeopardy the very unity of the community legal order and detract from the fundamental requirement of legal certainty. The same conclusion is dictated by consideration of the necessary coherence of the system of judicial protection established by the Treaty. In that regard it must be observed that requests for preliminary rulings, like actions for annulment, constitute means for reviewing the legality of acts of the community institutions … . Since Article [263] gives the Court exclusive jurisdiction to declare void an act of a Community institution, the coherence of the system requires that where the validity of a community act is challenged before a national court the power to declare the act invalid must also be reserved to the Court of Justice.90

The invalidation of CFSP acts by Member States’ courts would have implications comparable to those evoked in Foto-Frost as regards the unity of the EU legal order and Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.’ 88 View of AG Kokott (n 44), esp. paras 96–103. 89 See Opinion 2/13 (n 5), para 255. It reiterated that point in the following paragraph. 90 Case C-314/85 Foto Frost v Hauptzollamt Lübeck-Ost ECLI:EU:C:1987:452. For a recent reiteration of the doctrine it contains, see e.g. Case C-362/14 Maximillian Schrems v Data Protection Commissioner ECLI:EU:C:2015:650, and Rosneft (n 10).

84 Research handbook on the EU’s common foreign and security policy legal certainty. This could indeed explain the Court’s implicit position on Member States’ courts in Opinion 2/13. That said, how could the Foto-Frost solution operate in a situation where the Court of Justice has no jurisdiction? How can it guarantee the unity of the EU legal order, and particularly the uniformity of application of CFSP rules, if the Court cannot review those rules in the first place? Arguably, ‘the necessary coherence of the system of judicial protection established by the Treaty’ requires that if the Court does not have the ‘jurisdiction to declare void’ certain CFSP acts, it cannot claim the power to declare such acts invalid, and a fortiori that such power be reserved to it. The application of the Foto-Frost doctrine presupposes the CJEU’s jurisdiction. Thus, Advocate General Kokott considered: [I]n the context of the CFSP, the Court of Justice cannot claim its otherwise recognised monopoly on reviews of the legality of the activities of EU institutions, bodies, offices and agencies. The settled case-law of the Court, stemming from the judgment in Foto-Frost, cannot, therefore, in my view, be applied to the CFSP. Unlike in supranational areas of EU law, there is no general principle in the CFSP that only the Courts of the EU may review acts of the EU institutions as to their legality.91

Admittedly, the Foto-Frost doctrine does apply to certain CFSP-related situations. Member States’ courts are thus precluded from invalidating CFSP acts that fall under the Court of Justice’s jurisdiction. The Court made that point clear in the Rosneft judgment: The necessary coherence of the system of judicial protection requires, in accordance with settled case-law, that when the validity of acts of the European Union institutions is raised before a national court or tribunal, the power to declare such acts invalid should be reserved to the Court under Article 267 TFEU (see, to that effect, judgments of 22 October 1987, Foto-Frost, 314/85, EU:C:1987:452, paragraph 17, and of 6 October 2015, Schrems, C362/14, EU:C:2015:650, paragraph 62). The same conclusion is imperative with respect to decisions in the field of the CFSP where the Treaties confer on the Court jurisdiction to review their legality (emphasis added).92

The tenets of the Foto-Frost jurisprudence, applied to the CFSP context, are therefore strongly reaffirmed – the judgment indeed spells them out almost in full. But this application is envisaged only where it itself has jurisdiction. One may thus infer from the above dictum that for CFSP-related cases falling outside the scope of Article 275(2) TFEU, by contrast, Member States’ courts are able to exercise what remains their judicial power. To be sure, Member States’ judicatures can always invalidate unlawful national measures taken in the context of a CFSP act.93 EU principles and rules, including the 91

View of AG Kokott (n 44), para 100. See Rosneft (n 10), para 78. 93 The High Administrative Court of Nordrhein Westfalen was asked to rule on the alleged responsibility of Germany for the transfer of suspected Somali pirates to Kenya, carried out in the framework of the EUNAVFOR Atalanta mission (Oberverwaltungsgericht NRW, 4 A 2948/11, 18 September 2014). For an insightful analysis of this case see: E Sommario, 92

‘The Good, the Bad and the Ugly’ 85 CFR, are then of relevance given that the Member State would be acting within the scope of EU law within the meaning of Article 51(1) CFR. But beyond the national implementation measures, Member States’ courts, qua EU courts, are arguably the only EU judicature able to control the validity of CFSP acts as such, though possibly with the Court of Justice’s aid. In particular, the Court may assist the national judge’s review of a CFSP act, or its national implementation, through the preliminary ruling procedure. In particular, it may provide an interpretation of any EU law, such as a provision of the Charter or a provision on the EU institutions’ essential role enshrined in Title III TEU, which would be relevant for deciding on the case at hand.94 After all, the limits enshrined in Article 275(2) TFEU cannot entail restrictions on the Court’s jurisdiction in relation to other (that is, non-CFSP) domains of EU law without potentially breaching the rule of Article 40(1) TEU, while negating the exceptional nature of the judicial arrangements of Article 275 TFEU, and their consequent narrow interpretation.95 In sum, there are legal elements to support Member State courts’ involvement, as EU courts, in exercising complementary judicial control over the CFSP, where and as long as the Court of Justice is not allowed to exercise it itself.96 That this approach involves complications for the functioning of the legal order cannot in itself disqualify the only judicial protection against CFSP acts that is available under EU law as it stands. The contrary would amount to a denial of legal protection which would be equally problematic for the EU legal order, based as it is on the rule of law.97 Indeed, the implications of a decentralized judicial control of the CFSP might be less damaging for the EU legal order than a judicial review by national courts limited to the domestic implementation measures. While in the latter case, national courts would be adjudicating by reference to national and EU law, in the former situation, they would ‘Attribution of Conduct in the Framework of CSDP Missions: Reflections on a Recent Judgment by the Higher Administrative Court of Nordrhein Westfalen’ in S Poli (ed.), Protecting Human Rights in the European Union’s External Relations (CLEER paper 2016/5). 94 AG Wahl considered in the H Case that when the CJEU does not have jurisdiction it is for the national courts ‘to examine the lawfulness of the contested decisions and rule on the related claim for damages’ (para 89). In doing so, they may have to ask preliminary questions: ‘90. … it cannot be excluded that the competent national courts may have doubts as to the extent of their review of the contested decisions as well as on the possible consequences of that review. 91. Should that be the case, I would remind those courts that they are at liberty – and they may sometimes be obliged – to submit a request for a preliminary ruling to the Court under Article 267 TFEU. In that connection, the Court may still be able to assist those courts in deciding the case before them, while remaining within the boundaries established by Articles 24(1) TEU and 275 TFEU. It occurs to me that such requests for a preliminary ruling ought to be welcomed …’. 95 As mentioned above, the Court of Justice considered that ‘the final sentence of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU introduce a derogation from the rule of the general jurisdiction which Article 19 TEU confers on the Court to ensure that in the interpretation and application of the Treaties the law is observed, and they must, therefore, be interpreted narrowly’ (emphasis added); see at para 70 of its Mauritius judgment. 96 For a possible role of domestic courts in settling questions of liability for CSDP operations, see Chapter 7 in this volume. 97 See Article 2 TEU, and e.g. Schrems (n 90), para 60.

86 Research handbook on the EU’s common foreign and security policy review the legality of the CFSP measure on the basis of EU law only, including the CFR, thus acting in the interest of the Union and in line with their duty of cooperation. In other words, the shared power of national courts in exercising judicial review of CFSP acts may contribute to securing the primacy of EU norms, including the Charter, in situations where the Court does not have jurisdiction.98

5. CONCLUSION While Article 24(1) TEU refers to ‘specific rules and procedures’ for the CFSP, it is equally clear that, in the absence of such specific rules and procedures, the general rules apply. If anything, the case law of the Court referred to above consistently underlined this. References to CFSP provisions in Articles 24(1) TEU and 275 TFEU are indeed meant to limit the Court’s jurisdiction to acts that are not of a ‘pure’ CFSP nature (based on Title V, Chapter 2 TEU).99 Indeed, as Cremona puts it, ‘this allows the Court – while granting the CFSP full scope as a policy field – to ensure that “CFSP exceptionalism” with respect to its own jurisdiction does not creep beyond its proper bounds’.100 While one may discuss what these ‘proper bounds’ are, it is at least clear that the Court’s general jurisdiction is not limited by the fact that a certain act was adopted in the context of the CFSP. Yet it is widely acknowledged that, despite the Court’s clear jurisdiction in relation to CFSP-related issues, it cannot yet provide ‘full review’. If so, there is a systemic gap in the EU system of judicial remedies, as seemingly recognized by the Court itself. How could one then fill this gap? One option is simply to grant the Court full judicial oversight over the CFSP and thus suppress the current derogatory provisions of Articles 24(1) TEU and 275 TFEU.101 The Court may, in the meantime, have to elaborate on its current CFSP-related case law, premised on the narrow interpretation of the derogations enshrined in the above-mentioned Articles, in an attempt to meet, as far as possible, the standards of Article 47 CFR without circumventing the limits set out by the Treaty drafters. The hope in Luxembourg may indeed be that, in the medium term, the Masters of the Treaties realize that the Court of Justice is trustworthy in the CFSP context, the integrity of which it scrupulously protects, in that it is capable of exercising judicial control over the EU foreign policy without overshadowing the authority of the political protagonists. 98

In this respect, see Case C-399/11 Melloni v Ministerio Fiscal ECLI:EU:C:2013:107. cf. the Opinion of AG Wathelet in the Rosneft case (n 10), paras 42–46. The question whether ‘pure’ CFSP sanctions (e.g. arms embargoes) would be covered by the ‘restrictive measures’ mentioned in Art. 275 remains unanswered, but given the Court’s restrictive approach to the exceptions and the importance attached to EU principles (such as equality and access to court), we would see no reasons to exclude sanctions with a mere CFSP legal basis from the Court’s jurisdiction. 100 Cremona (n 2). 101 See in this respect, the intervention of President of the CJEU Lenaerts at the ICON-S Conference 2016, Day 3, Plenary Session 3: ‘Judicial Interview and Dialogue’: . 99

‘The Good, the Bad and the Ugly’ 87 A droit constant, the Court of Justice may have to accept that in the current system, an additional role for external or other EU judicatures must be acknowledged. In that respect, Opinion 2/13 was not very helpful for those waiting for the possibility of the ECtHR stepping in and filling the gaps. As we have argued elsewhere,102 the criteria to allow external courts to deal with EU (including CFSP) law are hard to meet: they comprise, inter alia, the prevention of an adverse effect on the autonomy of the EU legal order; respect for the allocation of powers between the EU and its Member States; and the absence of jurisdiction to interpret EU law. At the same time, other international courts or national courts in third states may de facto be confronted with CFSP-related questions and it may be difficult for EU Member States to draw on their EU membership card to escape international obligations where situations have not been regulated otherwise. While a substantial role for ‘outside’ courts may indeed be difficult considering the terms of Article 344 TFEU, the contrary seems to hold true for the domestic courts in the EU Member States. On the basis of Article 19 TEU, they do have a role to play. To quote the Court once more: ‘As is evident from Article 19(1) TEU, the guardians of [the] legal order and the judicial system of the European Union are the Court of Justice and the courts and tribunals of the Member States.’103 The Rosneft case confirmed that the CFSP is not excluded from this general role of the national courts. Thus, full access to court is ensured as regards CFSP acts, in line with requirements of the rule of law. Judicial control over the CFSP may thus take place at different levels and we would maintain that, as the law stands, the role of the national courts is not so much ‘ugly’ as, in certain situations, necessary. In addition, to ensure full review of CFSP measures, it can only be hoped that the Court will not consider all external review as ‘bad’ and at least allow for other courts (the ECtHR in particular) to fill the gaps, thus giving preference to effective judicial review over autonomy in situations where its own jurisdiction is limited.

102 103

Hillion and Wessel (n 42). Opinion 1/09 (n 83), para 66 (emphasis added).

PART B THE PRACTICE OF CSDP

5. Civilian CSDP missions: ‘the good, the bad and the ugly’ Ana E. Juncos*

1. INTRODUCTION Since the launch of the Common Security and Defence Policy (CSDP) in 1999,1 the European Union (EU) has developed the capabilities to plan and conduct civilian crisis missions that cover a wide range of areas, from policing to border monitoring to judicial reform. Even though civilian crisis management developed in the shadow of EU military capabilities, progress in this area has been rapid and almost two-thirds of the EU missions and operations launched so far have been civilian in nature or have had a civilian component. Demonstrating the credibility of commitments laid down at the Helsinki Council (1999), and further developed at Feira (2000) and Gothenburg (2001), was of some importance. At the Feira Council, the EU Member States identified four priority areas in civilian crisis management (policing, rule of law, civilian administration and civil protection) and made a commitment to provide 5,000 police personnel by 2003.2 The launch of the EU Police Mission in Bosnia in 2003 made the EU’s commitment to develop autonomous civilian crisis management capabilities operational. While much of the discussion in the literature has focused on the merits and obstacles to developing a defence dimension at the EU level,3 civilian CSDP has received relatively little attention.4 This is despite the fact that some of the EU’s key achievements in the security arena have been accomplished through the civilian 1

Prior to the Lisbon Treaty, the CSDP was referred to as the European Security and Defence Policy (ESDP); for the sake of consistency, the term CSDP is used throughout the chapter. 2 European Council, Council conclusions (Santa Maria de Feira, 19–20 June 2000), available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/00200-r1.en 0.htm, accessed 23 July 2018. 3 A Menon, ‘Empowering Paradise? The ESDP at Ten’ (2009) International Affairs 227; J Howorth, ‘The European Union’s Security and Defence Policy: The Quest for Purpose’ in C Hill, MH Smith and S Vanhoonacker, International Relations and the European Union (OUP 2017). 4 Exceptions include R Bossong, ‘EU Civilian Crisis Management and Organisational Learning’ (2013) European Security 94; CS Chivvis, EU Civilian Crisis Management: The Record So Far (RAND 2010); I Ioannides, ’EU Civilian Capabilities and Cooperation with the Military Sector’ in E Greco, N Pirozzi and S Silvestri (eds), EU Crisis Management: Institutions and Capabilities in the Making (Istituto Affari Internazionali 2010; A Nowak (ed.), Civilian Crisis Management: The EU Way (Chaillot Paper No. 90, European Union Institute for Security Studies 2006).

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90 Research handbook on the EU’s common foreign and security policy dimension of the CSDP. This chimes well with a general trend whereby international intervention has become more focused on long-term support and capacity-building rather than short-term external imposition. Yet the emphasis on civilian crisis management does not signify a return to the image of the EU as a ‘civilian power’. Civilian CSDP is seen as contributing to both to the EU’s soft and hard power. In the words of Federica Mogherini: The European Union has always prided itself on its soft power – and it will keep doing so, because we are the best in this field. However, the idea that Europe is an exclusively ‘civilian power’ does not do justice to an evolving reality. For instance, the European Union currently deploys seventeen military and civilian operations, with thousands of men and women serving under the European flag for peace and security – our own security, and our partners’. For Europe, soft and hard power go hand in hand.5

This chapter seeks to examine progress in this area by focusing on its achievements so far, and especially its contribution to the role of the EU as an international actor (the good); the operational and capability problems it has faced in implementing CSDP civilian missions (the bad); and the politics of civilian crisis management (the ugly). Because of the political nature of civilian CSDP, it has been contested since its origins. In particular, this chapter focuses on three types of political contestation, namely intergovernmental, bureaucratic and local politics, and how these have affected the implementation of civilian CSDP. It is necessary, however, to first discuss the origins of civilian CSDP and the record so far.

2. FROM AMBITION TO REALITY: THE DEVELOPMENT OF THE CIVILIAN DIMENSION OF THE CSDP Despite the traditional depiction of the EU as a civilian power, the development of a civilian dimension to what was then known as the European Security and Defence Policy (ESDP)6 only came about as a result of the pressure from the Nordic countries, which saw this as a counterweight to the militarization of the EU. Yet as this section goes on to show, EU civilian crisis management missions have since become a key instrument in the EU’s toolbox to support its role in conflict prevention and peacebuilding.

5 ‘Shared Vision, Common Action: A Stronger Europe. A Global Strategy for the European Union’s Foreign and Security Policy’ (European External Action Service 2016) 4. https:// europa.eu/globalstrategy/sites/globalstrategy/files/eugs_review_web.pdf, accessed 28 November 2016. 6 With the entry into force of the Lisbon Treaty, this policy area has been renamed as Common Security and Defence Policy (CSDP).

Civilian CSDP missions 91 The development of civilian crisis management7 coincided with changes in the security context in the post-Cold War period. During the 1990s and 2000s, the liberal peace, with its emphasis on stabilizing conflict countries and promoting free market democracies, generated an increasing demand for externally led interventions. Deployment of United Nations (UN) missions continued to grow over this period to over 95,000 uniformed deployed personnel in 2017 and a total of 71 peacekeeping operations since 1948.8 Moreover, international intervention has not just increased in size, but has also widened its scope from its traditional peacekeeping role to peacebuilding and with it the type of missions deployed: monitoring a ceasefire, electoral observation missions, disarmament, demobilization and reintegration (DDR) and security sector reform (SSR). While peacekeeping forces are still considered crucial in the first stages of a conflict, civilian crisis management has become increasingly relevant as an instrument to support transition and long-term stabilization and development. Regional organizations have also stepped up to this challenge, becoming more involved in peacekeeping and crisis management. In the case of the EU, the development of the Common Foreign and Security Policy (CFSP) with the Maastricht Treaty, and later the CSDP, can be placed in this context. Cooperation in security and defence matters has been one of the most recent additions to the process of European integration, with the CSDP only having been formally enshrined in the Treaty of Nice (2000). However, at that point the emphasis was on the development of ‘credible military forces’ in order to develop the EU’s ‘capacity for autonomous action’.9 Yet at the Helsinki European Council (December 1999), the Council agreed to establish a non-military crisis management mechanism at the disposal of the Union as a compromise between those seeking to enhance the EU’s military dimension and the neutrals, led by Sweden and Finland, which advocated for a 7 A terminological note is in order here. While the literature on international conflict usually refers to conflict management, in EU circles the preferred term is that of ‘crisis management’. Crisis/conflict management usually refers to those short-term measures facilitating ‘the settlement and containment of violent conflict’, which might include inter alia peace enforcement, peacekeeping and post-conflict stabilization (O Ramsbotham, T Woodhouse and H Miall, Contemporary Conflict Resolution (2nd edn, Polity Press 2005)). By contrast, conflict prevention is the term preferred by the European Commission. In the Commission’s parlance, conflict prevention refers to both long-term and short-term measures; it covers the stages before and after the break-out of a conflict (Commission, ‘Communication from the Commission on Conflict Prevention’ COM(2001) 211 final). In this view, only a phase of the conflict cycle escapes from the Commission’s definition of conflict prevention: the management of an open crisis (war). From the Council’s point of view, crisis management includes not only peacemaking and peacekeeping, but also other state-building, confidence-building and monitoring activities taking place in the post-conflict stabilization phase, such as police missions, monitoring missions and border assistance missions. Thus, the possibility of overlaps between Commission and Council’s instruments is a real one in the post-conflict stabilization stage. See also E Gross and AE Juncos (eds), EU Conflict Prevention and Crisis Management (Routledge 2011). 8 United Nations, Peacekeeping Factsheet 2017, http://www.un.org/en/peacekeeping/ resources/statistics/factsheet.shtml, accessed 10 July 2017. 9 EU-ISS (2001) From St-Malo to Nice. European defence: core documents, Chaillot Paper 47, Paris: EU-ISS. Available at: https://www.iss.europa.eu/sites/default/files/EUISSFiles/cp047e. pdf accessed 10 July 2017.

92 Research handbook on the EU’s common foreign and security policy civilian dimension to crisis management. At the Feira Council (2000), the EU Member States identified four priority areas in civilian crisis management (policing, rule of law, civilian administration and civil protection) and made a commitment to provide 5,000 police personnel by 2003. Significant improvements have taken place in the last decade with the adoption of the Civilian Headline Goal 2008 and the Headline Goal 2010, a list of generic civilian CSDP tasks, the creation of a permanent CSDP warehouse, and the adoption of a civilian CSDP Compact, among other things (civilian capability development is explored in Chapter 8 in this volume).10 The civilian missions carried out in the context of CSDP are governed by Articles 42–46 of the Treaty on European Union (TEU) under the heading ‘Provisions on the Common Security and Defence Policy’ (Title V, Chapter 2, Section 2). CSDP constitutes an integral part of the CFSP (Art. 42(1) TEU) and it continues to be governed within an intergovernmental framework. As such, decisions in the Council are taken by unanimity (Art. 42(4) TEU). The European Parliament is consulted on and informed of CSDP developments, including operational developments, with the specification that its views are to be ‘duly taken into consideration’ (Art. 36 TEU). Civilian mission mandates are set by the Council of the European Union and agreed with host states. Although not legally required, this usually includes the signing of a Status of Mission Agreement or SOMA. While the Council is responsible for setting out ‘the objectives and scope and the general conditions for [the] implementation’ of civilian CSDP missions, ‘the High Representative of the Union for Foreign Affairs and Security Policy, acting under the authority of the Council and in close and constant contact with the Political and Security Committee, shall ensure coordination of the civilian and military aspects of such tasks’ (Art. 43(2) TEU). The rules for the financing of the missions are outlined in Article 41(1) TEU. According to this provision, administrative expenditure is automatically charged to the EU budget. Operational expenditure for civilian missions is also charged to the EU budget (Art. 41(2) TEU) as long as it does not arise from operations having military or defence implications. To ensure the rapid disbursement of funds for preparatory actions for civilian CSDP missions, the Lisbon Treaty also introduced a mechanism in Article 41(3) TEU according to which the Council would adopt a decision on ‘specific procedures for guaranteeing rapid access to appropriations in the Union budget’, after consulting the European Parliament. According to the Treaty, the operational implementation of civilian CSDP should rely on the capabilities provided by the Member States (Art. 42(1) and 42(3) TEU). The EU may use civilian and military assets outside the EU for peacekeeping, conflict prevention and strengthening international security (Art. 42(1) TEU). The Lisbon Treaty also extended the scope and type of civilian and military missions to be carried out under the CSDP framework (the so-called ‘Petersberg tasks’) (Art. 43 TEU) to 10 Council of the EU, ‘Civilian Headline Goal 2008’ 15863/04, 5–7, http://eeas.europa.eu/ csdp/about-csdp/civilian_headline_goals/index_en.htm. GAERC (2007) ‘Civilian Headline Goal 2010’ (approved by the ministerial Civilian Capabilities Improvement Conference and noted by the General Affairs and External Relations Council) 14823/07, 2; EEAS (2015), ‘Draft List of Generic Civilian CSDP Tasks’, EEAS (2015) 654 Rev 1, http://www.statewatch.org/news/2015/ may/eu-csdp-revised-cvilian-tasks-7656-rev2-15.pdf, accessed 18 April 2016.

Civilian CSDP missions 93 include humanitarian and rescue tasks; conflict prevention; tasks for combat forces in crisis management; joint disarmament operations; military advice and assistance tasks; and tasks in post-conflict stabilization. The Treaty adds that ‘these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories’ (Art. 43(1) TEU). At the Laeken Council, in December 2001, the CSDP was declared operational. Since then, civilian CSDP has become a reality, with the EU being involved in over 20 civilian crisis management missions out of a total of 36 – including police missions, civilian administration, training missions and rule of law missions.11 At the time of writing, the EU is conducting ten civilian missions and six military missions. The last civilian CSDP mission launched by the EU was the EUAM Iraq, an EU Advisory Mission in support of Security Sector Reform, established in 2017.12 One of the EU’s key strengths has been its ability to combine both civilian and military instruments and to develop a ‘comprehensive approach’ to conflict management (see below). Over time, the structures dealing with civilian crisis management have seen the most significant changes in the EU foreign policy machinery, some of them prior to its operationalization (e.g. CIVCOM), some of them as a result of lessons learned.13 CIVCOM, the Committee on Civilian Aspects of Crisis Management, was established in June 2000. From the original Police Unit created within the Directorate General (DG) IX in the Council Secretariat, which had eight people working for it, a Civilian Planning and Conduct Capability was established in 2007, headed by the Civilian Operations Commander, and currently manned by 75 staff. In 2009, the Crisis Management and Planning Directorate (CMPD) was also created, in charge of political-strategic crisis management planning and joint civilian-military capability development. The Lisbon Treaty did not alter this institutional structure, although it led to a reorganization of the crisis management bodies within the European External 11 This total includes the EUBAM Moldova and Ukraine and the EUMM to former Yugoslavia, which are not strictly CSDP missions, but share most of their features. On EU crisis management operations prior to the launch of the CSDP, see W van Eekelen and S Blockmans, ‘European Crisis Management Avant la Lettre’ in S Blockmans (ed.), The European Union and Crisis Management (TMC Asser Press 2008); and AE Juncos, EU Foreign and Security Policy in Bosnia. The Politics of Coherence and Effectiveness (Manchester University Press 2015). The same can be said of EUJUST Themis in Georgia, which had more the character of a Commission project (see F Hoffmeister, ‘Inter-pillar Coherence in the European Union’s Crisis Management’ in S Blockmans (ed.), The European Union and Crisis Management (above) 1651–66). 12 See EEAS, ‘Military and Civilian Missions and Operations’ (2017) https://eeas.europa. eu/topics/military-and-civilian-missions-and-operations/430/military-and-civilian-missions-andoperations_en, accessed 10 July 2017. 13 A Kammel, ‘The EEAS and Its Crisis Management Component’ in J Rehrl (ed.), Handbook on CSDP: The Common Security and Defence Policy of the European Union (Federal Ministry of Defence and Sports of the Republic of Austria 2017); R Bossong and T Benner, ‘Capacity-building at the Headquarter Level: The Case of EU Civilian Peace Operations’ (2012) Journal of Intervention and Statebuilding 351. On learning, see G Faleg, The EU’s Common Security and Defence Policy: Learning Communities in International Organizations (Palgrave Macmillan 2017); Juncos (n 11); ME Smith, Europe’s Common Security and Defence Policy: Capacity-Building, Experiential Learning and Institutional Change (CUP 2017).

94 Research handbook on the EU’s common foreign and security policy Action Service (EEAS), and under the authority of the new position of High Representative for Foreign Affairs and Security Policy. The establishment of this double-hatted position (as the Vice-President of the Commission) also meant that stronger links could be sought with the work of the Commission in security and development areas – although the legal dichotomy remains. Related to this, the reactivation of the Commissioners’ Group on External Action, led by the HR/VP, has facilitated inter-institutional cooperation within the Commission and with the EEAS.14 Evidence of better inter-institutional relations can be found in the fact that the Commission and the EEAS have worked closely on different initiatives including on SSR, Capacity Building for Security and Development, and resilience, to name but a few. Yet, there are still difficulties regarding complex budgetary procedures and the rapid disbursement of funds, for instance. However, the turf wars that accompanied the implementation of the Lisbon Treaty and the consequences of the economic and financial crisis led to a slowdown in the pace and the level of ambition of CSDP. More recent attempts to reinvigorate the CSDP at the December 2013 European Council were mostly focused on the military dimension of CSDP (this is explored in Chapter 6 in this volume). Nevertheless, the EU Global Strategy (EUGS) refers to civilian missions as ‘a trademark of CSDP’ and calls for the further development of civilian CSDP by ‘encouraging force generation, speeding up deployment, and providing adequate training based on EU-wide curricula’.15 This suggests that civilian crisis management will continue to be a key priority in the EU’s external action in the years to come as demonstrated by the launch of a civilian CSDP Compact in 2018.

3. CIVILIAN CSDP MISSIONS: THE RECORD SO FAR As mentioned above, civilian CSDP missions have become a trademark of CSDP, with over 20 deployed to date. This section provides an overview of the record of civilian CSDP missions so far by examining the geographical areas of deployment, types of missions (such as police, rule of law, and monitoring), and personnel deployed. The first point worth noting is that the average size of the current missions is relatively small, with around 247 personnel (including contracted and local staff), although this figure would be even smaller if we were to exclude EULEX (which amounts to more than half of the total) (see Table 5.1). Their budgets are also relatively modest: €250 million was spent in 2015 out of the total CSDP budget. The Member States also contribute directly through the salaries of their seconded personnel. The top contributing Member States are Germany, Poland, Sweden, Italy and Finland.16 14 See, for instance, S Blockmans and S Russack, The Commissioners’ Group on External Action – Key Political Facilitator (Special Report No. 125, CEPS 2015). 15 ‘Shared Vision, Common Action’ (n 5) 47. 16 EEAS, Personnel Figures of the Civilian CSDP Missions (31.08.2016). For a discussion of the UK’s contribution to civilian CSDP and the likely impact of Brexit, see the analysis in Chapter 8 in this volume.

Civilian CSDP missions 95 Table 5.1 Deployed personnel in civilian CSDP missions EULEX EUAM Kosovo Ukraine

EUMM Georgia

EUBAM EUPOL Rafah COPPS

EUCAP EUCAP EUBAM EUCAP Nestor Niger Libya Sahel Mali

Seconded personnel

387

83

178

2

42

23

38

10

57

820

Contracted international

197

26

27

1

15

28

22

2

27

345

Local staff

749

79

109

7

42

3

34

2

34

1,059

Total

1,333

188

314

10

99

54

94

14

118

2,224

Note:

This table does not include EUPOL Afghanistan, which was completed on 31 December 2016.

Source: EEAS, Personnel Figures of the Civilian CSDP Missions (31.08.2016).

In terms of the mandate, the first trend that we have seen in civilian CSDP missions has been towards a more holistic approach towards SSR. While most of the first CSDP missions deployed by the EU focused only on one security sector (e.g. the police or border monitoring), there was soon a realization that a more integrated approach was required. For instance, the first mandate of EU Police Mission (EUPM) Bosnia was too narrow in the sense that it only focused on policing issues. By contrast, later mandates responded to criticisms that EUPM had neglected the rule of law dimension in the fight against criminality. Thus, a Criminal Justice Interface Unit was created to address problems regarding cooperation between the police and the prosecutorial authorities. Later missions have had a much broader remit such as rule of law, SSR or capacity-building missions (e.g. EULEX Kosovo, EUAM Ukraine and EUCAP Sahel, to name a few) (see also Table 5.2 on the nature and type of missions). The second trend has also had to do with changes in the security environment and the nature of Western interventions. The demise of the liberal peace17 has now led to calls for local ownership and building the resilience of external partners.18 Resilience seeks to move beyond previous institution-building programmes that sought holistic and externally driven changes to building the capacity of local actors from the bottom up.19 Through the lenses of resilience, interventions now should be focused at the level of actors’ capacities rather than on the external or international environment.20 The EU’s role is to help states and societies build their resilience through training, 17 R Mac Ginty and OP Richmond, ‘The Local Turn in Peace Building: A Critical Agenda for Peace’ (2013) Third World Quarterly 763. 18 Commission and High Representative of the Union for Foreign Affairs and Security Policy, ‘Joint Communication to the European Parliament and the Council. A Strategic Approach to Resilience in the EU’s External Action’, JOIN (2017) 21 final. 19 AE Juncos, ‘Resilience as the New EU Foreign Policy Paradigm: a Pragmatist Turn?’ (2017) European Security 1; D Chandler, ‘International Statebuilding and the Ideology of Resilience’ (2013) Politics 276. SV Haldrup and F Rosén, ‘Developing Resilience: A Retreat from Grand Planning’ (2013) Resilience: International Policies, Practices and Discourses 130. 20 ‘Shared Vision, Common Action’ (n 5); Juncos (n 19).

96 Research handbook on the EU’s common foreign and security policy Table 5.2 EU civilian and military missions and operations, 1991–2017 Name

Location

Nature

Type

Duration

ECMM/EUMM

Western Balkans

Civilian

Monitoring

1991–2007

EUPM

Bosnia

Civilian

Police

2003–2012

Concordia

FYROM

Military

Military

2003

Artemis

RD Congo

Military

Military

2003

EUPOL Proxima

FYROM

Civilian

Police

2004–2005

EUJUS Themis

Georgia

Civilian

Rule of law

2004–2005

EUFOR Althea

Bosnia

Military

Military

Since 2004

EUPOL Kinshasa

RD Congo

Civilian

Police

2005–2007

EUSEC RD

RD Congo

Civil-military

Security sector reform

2005–2016

EUJUST LEX

Iraq/Brussels

Civilian

Rule of law

2005–2013

Support to AMIS

Sudan

Civil-military

Assistance

2005–2006

AMM

Aceh/Indonesia

Civilian

Monitoring

2005–2006 Since 2005

EUBAM Rafah

Palestinian Territories

Civilian

Border

EUBAM

Ukraine-Moldova

Civilian

Border

Since 2005

EUPOL COPPS

Palestinian Territories

Civilian

Police

Since 2006

EUPAT

FYROM

Civilian

Police

2006

EUPT

Kosovo

Civilian

Planning

2006–2008

EUFOR

RD Congo

Military

Military

2006

EUPOL

RD Congo

Civilian

Police

2007–2014

EUPOL

Afghanistan

Civilian

Police

2007–2017

EUFOR

Tchad/RCA

Military

Military

2008–2009

EU SSR

Guinea-Bissau

Civil-military

Security sector reform

2008–2010

EULEX

Kosovo

Civilian

Rule of law

Since 2008

EUMM

Georgia

Civilian

Monitoring

Since 2008

EUNAVCO

Somalia

Military

Assistance

2008

EUNAVFOR

Somalia

Military

Maritime

Since 2008

EUTM

Somalia

Military

Capacity-building

Since 2010

EUAVSEC

South Sudan

Civilian

Security sector reform

2012–2014

EUCAP NESTOR

Horn of Africa

Civilian

Capacity-building

Since 2012

EUCAP Sahel Niger

Niger

Civilian

Capacity-building

Since 2012

EUBAM Libya

Libya

Civilian

Border

Since 2013 Since 2013

EUTM Mali

Mali

Military

Capacity-building

EUCAP Sahel Mali

Mali

Civilian

Capacity-building

Since 2014

EUAM

Ukraine

Civilian

Security sector reform

Since 2016

EUFOR RCA

CAR

Military

Military

2014–2015

EUMAM RCA

CAR

Military

Security sector reform

2015–2016

EUNAVFOR MED

Mediterranean

Military

Maritime

Since 2015

EUTM RCA

CAR

Military

Capacity-building

Since 2016

Source: EEAS, ‘Military and Civilian Missions and Operations’ (2017) https://eeas.europa.eu/topics/militaryand-civilian-missions-and-operations/430/military-and-civilian-missions-and-operations_en.

Civilian CSDP missions 97 monitoring, mentoring and advising.21 Thus, the role of the EU appears as one of a facilitator, a mentor and a partner moving away from discourses of ‘external intervention’ and ‘transformation’. Civilian CSDP operations therefore play a key role in terms of supporting capacity-building, in particular in the security sector (e.g. EUCAP Mali, EUCAP Niger, EUCAP Nestor/Somalia). Third, other changes in the security context have also led to changes in the roles of civilian CSDP missions. For instance, a focus on hybrid threats, maritime security and aviation security explains the deployment of missions such as EULEX, EUAM Ukraine, EUCAP Nestor or EUAVSEC. There also seems to be more emphasis on the protection of EU interests through its CSDP operations. The Implementation Plan on Security and Defence is very clear about this. CSDP missions and operations must contribute not only to responding to external conflicts and crisis and building the capacities of partners, but also to protecting the Union and its citizens (see also Art. 21 TEU). According to this document, ‘[t]hese three priorities are mutually reinforcing. A single CSDP mission or operation in fact can potentially contribute to all three priorities: they constitute a coherent whole.’22 Thus, it is not surprising that CSDP civilian missions have not only focused on strengthening the rule of law in third countries and building their capacities, but also on fighting organized crime and border management (EULEX Kosovo and EUBAM Rafah), illegal immigration (EUCAP Sahel Niger and EUCAP Sahel Mali), counter-terrorism (EUPOL Afghanistan and EUCAP Sahel Niger) and anti-piracy (EUCAP Nestor/Somalia). These changes in the functions and scope of civilian CSDP have put into question the four priority areas agreed at Feira. These key priority areas included police, rule of law, civilian administration and civil protection. At the November 2004 Civilian Capabilities Commitment Conference, two more areas for civilian crisis management were identified: monitoring and support to EU Special Representatives.23 Later work in the context of the Civilian Capability Development Plan identified some ‘generic civilian CSDP tasks’ to guide the development of requirement lists of capabilities, although it did not amend the overall priorities identified at Feira.24 The Implementation Plan of November 2016, however, calls on the ‘EEAS to make proposals for Member States’ consideration on revisiting the Feira priority areas for civilian missions in light of the profoundly changed security environment’.25 The preference for monitoring, mentoring and advising (MMA) mandates is also noteworthy. While in the first years of the CSDP there was intense discussion among 21

On ‘train and equip’, see Chapter 6 in this volume. Council of the EU, ‘Implementation Plan on Security and Defence’ (14 November 2016) 3, https://eeas.europa.eu/sites/eeas/files/eugs_implementation_plan_st14392.en16_0.pdf, accessed 28 November 2016. 23 ‘Ministerial Declaration’ (Civilian Capabilities Commitment Conference, Brussels, 22 November 2004), https://www.consilium.europa.eu/uedocs/cmsUpload/COMMITMENT%20 CONFERENCE%20MINISTERIAL%20DECLARATION%2022.11.04.pdf, accessed 27 February 2017. 24 EEAS Revised draft list of generic civilian CSDP tasks. 7656/2/15, Brussels, 8 March 2015. Available at http://www.statewatch.org/news/2015/may/eu-csdp-revised-cvilian-tasks-76 56-rev2-15.pdf, accessed 27 February 2017. 25 Council of the EU, ‘Implementation Plan on Security and Defence’ (n 22). 22

98 Research handbook on the EU’s common foreign and security policy the Member States about the merits of strengthening vs executive missions,26 the default position nowadays seems to be for non-executive MMA mandates,27 especially given the problems experienced with the only executive civilian mission so far: EULEX Kosovo. Under its executive mandate, EULEX judges and prosecutors carry out investigations and adjudicate criminal cases ‘until the progress of local authorities allows a complete transition of executive functions to them’.28 Finally, over time the EU has gradually expanded the geographical scope of its operations, originally centred in Europe (Western Balkans and South Caucasus) and Africa, to the Middle East and South East Asia (see Table 5.2). However, the majority of its missions are still deployed in Europe and Africa. This brief overview of the main features of civilian CSDP already illustrates the flexibility of these missions, which constitutes one of its strengths in terms of the EU’s global role. The following section examines in more detail the positive contribution that civilian CSDP makes to international security.

4. THE GOOD: CIVILIAN CSDP AND ITS CONTRIBUTION TO THE EU’S ROLE AS AN INTERNATIONAL ACTOR EU civilian crisis management has overall contributed to the EU’s role as a normative power. First, the objectives of these missions largely support the normative dimension of the EU and are in line with the CFSP objectives as established in the Treaties – democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, equality and solidarity, and respect for the principles of the UN Charter of 1945 and international law (Art. 21 TEU). The mandates of these missions have focused on responding to crises and promoting peace; supporting the stabilization of post-conflict societies and strengthening the rule of law and the security sector according to democratic principles. This is not to say that civilian CSDP missions have not sought to promote EU ‘interests’. Indeed, many of the missions have aimed to protect the security of the Union by addressing related security threats such as organized crime (mainly in the Western Balkans), migration (in the Sahel and Horn of Africa), piracy (Horn of Africa) and counter-terrorism (in Afghanistan and Africa). While this is in line with the EUGS, which argues that ‘interest and values go hand in hand’,29 this has inevitably led to tensions in the implementation of civilian CSDP. In particular, where missions are seen to pursue EU geopolitical and economic interests, this might undermine the legitimacy and buy-in from the local authorities and populations. In the Balkans, for instance, a focus on organized crime 26

On the case of EUPM, see Juncos (n 11). Indicative of this preference is the establishment of the Military Planning and Conduct Capability’ (MPCC) to oversee all military non-executive missions as outlined in the Council conclusions of 14 November 2016. See T Tardy, ‘MPCC: towards an EU military command?’ (Brief Issue, EU-ISS, 7 June 2017). 28 EULEX, Basic Facts Factsheet, http://www.eulex-kosovo.eu/eul/repository/docs/2016 1209_EULEX-FactSheet.pdf, accessed 2 February 2017. 29 ‘Shared Vison, Common Action’ (n 5) 13. 27

Civilian CSDP missions 99 and the strengthening of border controls by the civilian missions in the region (EUPM in Bosnian and Herzegovina, Proxima in FYROM, EULEX Kosovo) was seen to be at odds with the key priorities of the local populations, which were more concerned with petty crime and unemployment.30 The preference for strengthening mandates and the long-term approach of many of these missions bode well for the EU’s role as a normative power. Regarding the first point, as discussed earlier, with the exception of the rule of law mission in Kosovo (EULEX), all civilian CSDP missions have had a strengthening mandate. Rather than supplanting local actors, CSDP operations have sought to nurture local capacities through mentoring, monitoring and advising. For instance, in Ukraine, EUAM has supported the implementation of a national community policing programme; EUCAP Sahel Niger has helped with the revision of the police training manual; and EUPOL COPPS in Palestine has strengthened the capacities of the Palestinian Civil Police.31 Secondly, while civilian missions are officially part of the EU’s ‘crisis management’ responses, in practice they have focused on longer-term peacebuilding and preventative efforts. This in turn raises the question of whether the label ‘crisis management’ is an appropriate one for civilian missions and the issue of coordination with other long-term Commission instruments.32 In fact, in the case of Bosnia, there was not always full cooperation in harmonizing the projects launched by the Commission and EUPM, leading, for example, to the duplication at times of advisors to some Bosnian institutions, with one co-located police officer coming from EUPM and one advisor from the Commission’s twinning projects. Another related problem is that, even though many of the issues civilian CSDP missions face require a long-term approach, not all the missions have been deployed long enough to have a long-lasting impact. This was the case with EUJUST THEMIS, a CSDP operation which, despite having very ambitious objectives, was given only a year to achieve them. It therefore came as no surprise that by the end of the mission many of its objectives remained unaccomplished.33 But even in the cases of EUPM Bosnia and EUPOL Afghanistan, which were deployed for ten years, their impact is questionable. In the latter case, according to Thierry Tardy, the nature and scale of the challenges that EUPOL faced during its ten-year presence were huge, and the Mission was not designed and resourced to effectively tackle those challenges.

30 AE Juncos, ‘Of Cops and Robbers: European Union Policy and the Problem of Organized Crime in Bosnia Herzegovina’ in B Balamir-Coskun and B Demirtas-Coskun (eds), Neighborhood Challenge: The European Union and its Neighbors (Universal Publishers 2009). 31 K Fearon and S Picavet, ‘Challenges for Civilian CSDP Missions’ in J Rehrl (ed.), Handbook on CSDP: The Common Security and Defence Policy of the European Union (Federal Ministry of Defence and Sports 2017). 32 See also n 8. 33 X Kurowska, ‘The Rule-of-Law Mission in Georgia (EUJUST Themis)’ in G Grevi, D Helly and D Keohane (eds), European Security and Defence Policy: The First Ten Years (1999–2009) (European Union Institute for Security Studies 2009).

100 Research handbook on the EU’s common foreign and security policy In the end EUPOL’s achievements were limited and the medium-term sustainability of what has been achieved is far from being guaranteed.34

Finally, civilian CSDP missions have also shown a high degree of adaptability. The evolution of their mandates from a narrow focus on police reform and SSR to more multifaceted activities (aviation security, maritime capacity-building, training) provide evidence of this adaptability. In principle, it is also possible to deploy them in a relatively short space of time;35 in practice, however, the planning process has often taken several months (six months in the case of EUAM Ukraine and ten months in the case of EUCAP Sahel Mali).36 It is also possible to change and adapt their mandates throughout their deployment (see, for instance, several changes to the mandate and name of EUCAP Somalia).37 Another positive development has been the increasing interaction with other EU instruments and actors, particularly with the Commission (EUBAM Moldova and Ukraine is a case in point), FRONTEX (e.g. EUBAM Libya) or Europol (in the case of EULEX Kosovo), to name but a few. Civilian CSDP missions also work closely with other international actors deployed on the ground, such as the UN (in Mali, for instance), the OSCE (in Ukraine) or NATO (in Afghanistan or Kosovo38). As far as EU–NATO relations are concerned, the possibility of NATO resorting to EU civilian capabilities has been floated in the past (the so-called ‘Berlin Plus in reverse’), but has never materialized.39 Instead, due to the bilateral dispute between Turkey and Cyprus, EU–NATO relations have been characterized by a political impasse since 2004–2016, with formal cooperation being limited to EUFOR Althea in Bosnia Herzegovina (the only CSDP operation launched under the ‘Berlin Plus’ arrangements to date). In other cases (Afghanistan, Kosovo, the Horn of Africa or the Mediterranean Sea), cooperation between EU and NATO operations has relied on ad hoc and informal agreements on the ground rather than formalized procedures.40 The political declaration signed at the NATO Warsaw Summit in 2016 appears to have breathed new life into cooperation between the two organizations. The NATO 34 T Tardy, ‘EUPOL Afghanistan 2007/16: Mission Impossible?’ (Brief Issue, EU-ISS, 5 July 2017). 35 For instance, the planning of AMM Aceh took a matter of weeks before its operational deployment on 15 September 2005. H Dijkstra, Policy-Making in EU Security and Defense. An Institutional Perspective (Palgrave Macmillan 2013) ch.6. 36 AI Xavier and J Rehrl, ‘How to Launch a CSDP Mission or Operation’ in J Rehrl (ed.), Handbook on CSDP: The Common Security and Defence Policy of the European Union (Federal Ministry of Defence and Sports of the Republic of Austria 2017). 37 EUCAP Somalia (2017) Legal basis, http://www.eucap-som.eu/legal-basis/, accessed 11 July 2017. 38 In the case of Kosovo and Afghanistan, and due to the lack of communication between the two organizations at the strategic level, draft technical agreements were informally negotiated at the operational level between CSDP missions and NATO operations. 39 L Michel, ‘NATO and the United States: Working with the EU to Strengthen EuroAtlantic Security’ in S Biscop and R Whitman (eds), The Routledge Handbook of European Security (Routledge 2012). 40 N Graeger, ‘Security. EU-NATO Relations: Informal Cooperation as a Common Lifestyle’ in A Orsini (ed.), The European Union With(in) International Organisations (Routledge 2014).

Civilian CSDP missions 101 Warsaw Declaration foresees increasing cooperation in areas such as hybrid threats and capacity-building, which could open new avenues for cooperation between civilian CSDP and NATO.41 On 6 December 2016, the Council conclusions endorsed 42 concrete proposals to implement the EU-NATO Joint Declaration, although the implementation of such proposals will still depend on the political will of the Member States, including making the required financial resources available, and other political developments in the neighbourhood and beyond, including Turkey’s willingness to cooperate with its European partners, Russia’s foreign policy in the East, and Donald Trump’s commitment to transatlantic relations.42 There have also been limits as to how flexible civilian CSDP missions can be. For one thing, integration with the instruments and actors from the area of Freedom, Security and Justice remains limited despite common challenges.43 Moreover, institutional constraints have also slowed down deployment and resulted in procurement problems due to the fact that while missions are planned by the EEAS, the funding is still administered by the Commission and subject to Commission procurement rules.44 The intergovernmental nature of CSDP missions also affects its ability to adapt to changing conditions on the ground, which in turn is seen as key in shaping local perceptions of effectiveness, as shown by the case of EUAM Ukraine.45 While the need for increasing synergies between civilian and military instruments has been repeatedly mentioned as a necessary requirement,46 coordination between civilian and military CSDP missions remains limited. For instance, civ-mil operations such as EUSEC RD and EU SSR Guinea-Bissau remain the exception rather than the norm (see Table 5.2). While there are regular institutional contacts at the strategic and operational level to facilitate coordination between missions, a more integrated approach similar to that of UN peacekeeping missions still remains off the table.47

41

‘Joint Declaration by the President of the European Council, the President of the European Commission and the Secretary-General of the North Atlantic Treaty Organization’ (NATO Declaration, Warsaw, 8 July 2016). 42 E Lazarou, ‘EU-NATO cooperation and European defence after the Warsaw Summit’ (Briefing, European Parliament Research Service 2016). 43 T Tardy (ed.), Recasting EU Civilian Crisis Management (EU-ISS 2017). 44 See Implementation Plan on Security and Defence on the need to improve the flexibility of financial mechanisms. Council of the EU, ‘Implementation Plan on Security and Defence’ (n 22). 45 K Zarembo, ‘Perceptions of CSDP Effectiveness in Ukraine: A Host State Perspective’ (2017) European Security 190. 46 See, for instance, ‘Promoting synergies between the EU civil and military capability development’ (EEAS 2011) https://www.consilium.europa.eu/uedocs/cmsUpload/110223%20 factsheet%20Civil-Military%20synergies%20-%20version%201_EN.pdf, accessed 27 February 2017. 47 The new Joint Communication on an Integrated Approach will seek to improve these issues but it does not foresee a vertical integration of different EU actors on the ground as is the case with the UN model. See also H Dijkstra, P Petrov and E Mahr, ‘Reacting to Conflict: Civilian Capabilities in the EU, UN and OSCE’ (2016) EU-CIVCAP Report DL4.1, https:// eucivcap.files.wordpress.com/2017/06/eu-civcap_deliverable_4-1.pdf.

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5. THE BAD: BRIDGING THE CAPABILITIES–EXPECTATION GAP Despite its contribution to international security, civilian CSDP – and EU foreign policy, more generally – has suffered from what Christopher Hill described as the ‘capabilities–expectation gap’, in other words, ‘the significant difference which had come about between the myriad hopes for and demands of the EU as an international actor, and its relatively limited ability to deliver’.48 Although successive rounds of Treaty and institutional reforms have improved matters, there remains a gap between what the EU is set to achieve and the capabilities it has at its disposal, in particular in the area of civilian crisis management.49 Civilian CSDP missions have been affected by training and recruitment problems.50 As far as training is concerned, a number of initiatives, such as the European Security and Defence College and Europe’s New Training Initiative for CCM (ENTRi), a programme funded by the European Commission since 2011, have improved the training provision for civilian CSDP personnel. However, training activities lack standardization and coordination, thus impacting on the quality and quantity of personnel available for deployment.51 These problems are exacerbated by problems of recruitment. The lack of an EU roster of experts for civilian crisis management means that it is difficult to fill all the available vacancies, especially when it comes to highly specialized tasks. The fact that resources are dispersed among different national ministries (Interior, Justice, Civil Protection) makes things even more difficult. Finally, issues pertaining to lack of language skills, lack of career incentives, and availability of experts from the private sector and NGOs also hinder recruitment for civilian CSDP.52 The challenges faced in this area at the national level are somehow understandable. They have to do with the fact that by contrast with their military counterparts, civilian crisis management institutions had to be established from scratch at the national level.53 Moreover, there remains a lack of will by some Member States (in particular, some large Member States) to contribute to CSDP missions in a way commensurate with 48 C Hill, ‘Closing the Capabilities-expectations Gap?’ in J Peterson and H Sjursen (eds), A Common Foreign Policy for Europe? Competing Visions of the CFSP (Routledge 1998). 49 G Grevi and D Keohane, ‘ESDP Resources’ in Grevi, Helly and Keohane (eds) (n 33); D Korski and R Gowan, Can the EU Rebuild Failing States? A Review of Europe’s Civilian Capacities (European Council on Foreign Relations 2009). N Pirozzi, ‘The European Union and Civilian Crisis Management after Lisbon’ (2015) European Foreign Affairs Review 287. 50 See, for instance, Civilian and Military Personnel in CSDP Missions and Operations (European Parliament 2017) 15–20, http://www.europarl.europa.eu/RegData/etudes/STUD/2017/ 578035/EXPO_STU(2017)578035_EN.pdf, accessed 11 July 2017. 51 See T De Zan, P Tessari and B Venturi, ‘Procedures, Personnel and Technologies for Conflict Prevention and Peacebuilding: An Assessment of EU Member States’ Capabilities’ (2016) EU-CIVCAP Report DL2.1, http://www.eu-civcap.net/files/2016/11/Procedures_ Personnel_Technologies_Conflict_Prevention_Peacebuilding-Assessment_EU_Member_States_ Capabilities.pdf. 52 ibid; Dijkstra, Petrov and Mahr, ‘Reacting to Conflict’ (n 47); T Tardy, ‘Civilian CSDP: what next?’ (Brief Issue, EU-ISS, 10 November 2016). 53 See, for instance, S Vanhoonacker and AD Jacobs, ‘ESDP and Institutional Change: The Case of Belgium’ (2010) 41 Security Dialogue 559.

Civilian CSDP missions 103 their resources. For instance, while the Nordic countries have contributed significant numbers of civilian personnel, some larger Member States like France or Spain have a very low ratio of deployed personnel per head of population.54 At the EU level, the emphasis placed on the military dimension in the initial stages of the CSDP meant that the civilian dimension did not receive as much attention, not to mention resources. Yet the EU has put in place a number of mechanisms to support capability development on the civilian side with varied success, including the recently agreed civilian CSDP Compact (see Chapter 8 of this volume on capability development). Another related problem refers to the limited scale and lack of ambition of most of these missions (perhaps with the exception of EULEX).55 A quick look at the number of personnel and the time frame of these operations demonstrates that the majority of these missions have been short lived and small scale. Given the complexity of some of the tasks and the size of some of the countries where the EU has deployed these missions, this obviously raises the issue of whether the EU is really serious about these undertakings, with many of these missions falling short of meeting their objectives. Having said that, one should not underestimate the role played by symbolism. Civilian CSDP missions have not only been a way to address specific key threats, but have played a symbolic role as test cases and to demonstrate to the international community that CSDP is not simply a talking shop. In the case of EUJUST THEMIS, this was seen as ‘a good opportunity to test civilian crisis management capabilities in the field of rule of law, in a relatively stable area, with a small-scale mission’ as well as to serve as an ‘important test for EU relations with Russia’.56 However, as recently shown by Ukraine, civilian personnel deployed in missions are also faced with increasing risks.57 Other civilian missions operate or have operated in theatres with a high security risk rating58 such as Niger, Mali, Libya and Afghanistan,59 so the question is how long will civilian CSDP be able to benefit from symbolic engagements? This is linked to the issue of success. There is an incentive for the EU to declare its missions a success as mission success is clearly linked to the EU’s credibility as an international actor. In other words, labelling an operation as ‘successful’ constitutes a way to legitimize the EU’s international role. As a result, the EU has often been quick to declare CSDP missions a ‘success’. This has been even more so in the case of the Balkans and the Eastern neighbourhood, where the EU deployed its first missions.60 This is problematic, not only because it inflates expectations about future missions – widening the capabilities–expectation gap further – but also because this uncritical 54

De Zan, Tessari and Venturi (n 51). Menon (n 3). 56 C Gourlay, ‘The Politics of EU Civilian Interventions and the Strategic Deficit of CSDP’ (EU Crisis Management Paper Series, DCAF Brussels-ISIS Europe 2011) 13. 57 In April, an OSCE monitor was killed in East Ukraine. ‘American OSCE monitor killed in rebel east Ukraine’ (Euroactiv.com, 24 April 2017) https://www.euractiv.com/section/globaleurope/news/american-osce-monitor-killed-in-rebel-east-ukraine/, last accessed 23 July 2018. 58 Fearon and Picavet, ‘Challenges for civilian CSDP missions’ (n 31) 90. 59 In the case of EUPOL Afghanistan, three casualties were reported during its ten-year mandate: Tardy (n 34). 60 Juncos (n 11); X Kurowska and B Tallis ‘EU Border Assistance Mission: Beyond Border Monitoring?’ (2009) 14(1) European Foreign Affairs Review 47. 55

104 Research handbook on the EU’s common foreign and security policy position might prevent the EU from learning some of the lessons and best practices identified during the implementation process.

6. THE UGLY: THE POLITICS OF CIVILIAN CRISIS MANAGEMENT Because of the political nature of civilian CSDP, it has been politicized and contested since its origins. In particular, this section focuses on three types of political contestation – intergovernmental, bureaucratic and local politics – and how this has affected the implementation of civilian CSDP. 6.1 Intergovernmental Politics From its very beginnings, the development of civilian crisis management has been shaped by the different perceptions held by the Member States on the role of civilian instruments (as opposed to military ones), to the point that it has been argued that, in the case of the CSDP, ‘Member States have engaged in almost perpetual conflict over the nature of this policy area’.61 While France has traditionally emphasized the role of military instruments in international security and sought to develop the military dimension of CSDP, Nordic countries have, on the other hand, stressed the importance of civilian instruments. As mentioned earlier, the EU has developed over time an integrated approach, with the official rhetoric emphasizing the EU’s ability to deploy both civilian and military instruments. However, this should not hide the fact that civilian crisis management has been seen by some Member States as a way to counter-balance the militarization of the EU (e.g. as perceived by the neutrals) or to better complement NATO (the UK’s view). As far as leadership is concerned, it is interesting to note that it has been small and medium-sized countries, rather than the Big Three (France, Germany, UK), which have taken a leading role in the institutional development of EU civilian crisis management and, in particular, the Nordic countries. Not only did they put civilian crisis management firmly on the agenda at Cologne despite French opposition, they also played a key role in specific initiatives aimed at strengthening the decision-making and operational capabilities of the civilian dimension of the CSDP. For instance, the creation of a committee for civilian crisis management (CIVCOM) agreed at Helsinki (1999) was a Swedish proposal.62 The Nordic EU Member States have also taken the lead on capability development. For example, Sweden was one of the Member States

61 A Menon, ‘Power, Institutions and the CSDP: The Promise of Institutionalist Theory’ (2011) 49 Journal of Common Market Studies 89. 62 PV Jakobsen, ‘Small States, Big Influence: The Overlooked Nordic Influence on the Civilian ESDP’ (2009) 47 Journal of Common Market Studies 93; F Lee-Ohlsson, ‘Sweden and Development of the European Security and Defence Policy: A Bi-directional Process of Europeanization’ (2009) 44 Cooperation and Conflict 129.

Civilian CSDP missions 105 successfully sponsoring the Civilian Headline Goal 2008 and, together with Germany, it launched the idea of Civilian Response Teams.63 Regarding specific operations, one also needs to acknowledge the leading role of the Member States. Just as with military operations, civilian CSDP missions are considered by the Member States as a way to upload their own interests, as in Lithuania in the case of Themis or Poland in the case of EUAM Ukraine. However, it is worth noting that, as a general rule, missions have tended to be reactive rather than proactive. In other words, in most cases, a proposal by a Member State was introduced as a response to a request by another international organization (mainly the UN) or another third state, e.g. the host nation.64 The intergovernmental politics of civilian crisis management are also evident in the fact that Member States will seek to shape the mandates of the missions in accordance with their own interests. This might sometimes lead to inefficiencies on the ground, especially when the lack of consensus among conflicting Member State interests leads to vague or weak mandates. In other cases, civilian crisis management operations are seen by the Member States as a substitute for action where there is a lack of consensus as to a more robust response. As noted by Nicoletta Pirozzi, civilian CSDP missions are ‘less controversial from a political and financial point of view at national level, as they do not imply the use of military force and can be financed through the common EU budget (CFSP budget line and other financial instruments)’(see also Chapter 6 in this volume).65 For instance, in the case of Africa, political considerations have meant that, despite French pressure to launch military operations, the majority of EU Member States have opted for civilian capacity-building missions. Moreover, financial considerations have also played a key role during times of austerity. From the point of view of the Member States, civilian missions also have a comparative advantage vis-à-vis Commission initiatives since they remain an intergovernmental tool, in other words ‘instruments in the hands of Member States, which grants them political clout and credibility vis-à-vis recipient countries that other instruments may not enjoy’.66 While ensuring a sense of ownership by the Member States is always a positive element, this can have negative consequences in terms of effectiveness and coherence. For instance, Member States might seek to shape the mission during the implementation process by micromanaging missions from Brussels.67 6.2 Bureaucratic Politics Civilian CSDP missions have also suffered from bureaucratic politics. From this perspective, each bureaucratic organization has its own specific interests (often in the 63

ibid. Gourlay, ‘The Politics of EU Civilian Interventions’ (n 56) 7. 65 Pirozzi, ‘The European Union and Civilian Crisis Management’ (n 49) 300. 66 Tardy (n 52) 2. 67 F Ejdus, ‘Planning Ahead: EU Crisis Management Interventions Require Local Ownership at the Earliest Stage’ (Policy Briefing 38, University of Bristol 2016) http://www.bristol.ac.uk/ media-library/sites/policybristol/documents/PolicyBristol_Briefing_38_EU_crisis_management. pdf, accessed 27 February 2017. 64

106 Research handbook on the EU’s common foreign and security policy form of increasing competences, size, budget, prestige) that it will seek to promote, resulting in constant competition among organizations.68 This was particularly the case during the pre-Lisbon period, when both the European Commission and the Council Secretariat sought to protect/extend their areas of competence in civilian crisis management.69 Whether it was EUPM or EUJUST THEMIS, CSDP missions suffered from problems of institutional turf wars between the Commission and the Council.70 Problems of coherence were also evident between civilian and military operations as in the case of EUFOR Althea and EUPM in Bosnia, where both missions were active in the fight against organized crime.71 The Lisbon Treaty and the development of the comprehensive/integrated approach have gone some way to dealing with these problems. However, some overlaps and inconsistencies remain and a culture of coordination still to needs to be developed. As such, the potential offered by the newly established EEAS has not always been fulfilled. According to Major and Mölling, ‘disputes over competences and insufficient coordination inside the EEAS impair its capacity to act’.72 For one thing, there have been some problems of coordination between CMPD and Civilian Planning and Conduct Capability (CPCC).73 Thematic and regional expertise are not always appropriately brought together to deal with specific crisis in the neighbourhood and the connection between the CSDP structures and the rest of the EEAS machinery has remained ambiguous.74 The most recent reorganization of the EEAS in 2017 led to the establishment of a new thematic division for conflicts and crises: ‘PRISM’ (Prevention of Conflicts, Rule of Law/Security Sector Reform, Integrated Approach, Stabilisation and Mediation). The new division is the result of a merger between the division for Conflict Prevention, Peacebuilding and Mediation (SECPOL.2) and the division for Common Security and Defence Policy Coordination and Support division (CSDP.1). How PRISM will coordinate with other divisions in charge of civilian CSDP missions (CPCC and CMPD) remains to be seen. The new Joint Communication on the Integrated Approach should also help bring more coherence into the system. Problems have also related to financing and procurement, which have affected the implementation of the missions since the early days of the CSDP and even before.75 These also provided indications of bureaucratic turf wars between the Council and the 68

G Allison and P Zelikow, Essence of Decision: Explaining the Cuban Missile Crisis (2nd edn, Addison Wesley Longman 1999). 69 N Klein, European Agents Out of Control? Delegation and Agency in the Civil-military Crisis Management of the European Union 1999–2008 (Nomos 2010). 70 E Gross, ‘EU Military Operation in the Former Yugoslav Republic of Macedonia (Concordia)’ in Grevi, Helly and Keohane (eds) (n 33); I Ioannides, ‘EUPOL PROXIMA/EUPAT (fYROM)’ in Grevi, Helly and Keohane (eds) (n 33). 71 Juncos (n 11). 72 C Major and C Mölling, ‘Towards an EU Peacebuilding Strategy: The Effects of the Lisbon Treaty on the Comprehensive Approach of the EU in the Area of Civilian Crisis Management’ (2013) 18 European Foreign Affairs Review 57. 73 Pirozzi (n 49) 303. 74 Major and Mölling (n 72) 57. 75 For problems relating to the financing of the EU Administration in Mostar, see Juncos (n 60).

Civilian CSDP missions 107 Commission, and between the Council and the European Parliament. Moreover, these problems also demonstrated tensions between CSDP and EU development policies despite the EU’s efforts to implement the security-development nexus and a comprehensive approach. Accordingly, the Implementation Plan for Security and Defence of 2016 includes recommendations ‘on increased financial incentives and solidarity, more flexibility as well as a more seamless range of funding options’.76 The adoption of the EUGS and the Implementation Plan on Security and Defence (as well as other key recent documents such as the Capacity Building for Security and Development and the new SSR Strategy) offers some prioritization and guidelines as to how to move forward with the implementation of a strategic vision in security and defence policies, which should help reduce some of the past problems of coordination. 6.3 Local Politics Finally, one needs to consider the impact of local politics: the role that political conflict among local elites might have on the implementation of civilian CSDP. Obviously, EU missions are not implemented in a vacuum and thus the political climate (from latent conflict to open war) in the target country is of utmost importance. For instance, non-cooperative elites might obstruct civilian CSDP missions in order to safeguard their political and/or economic interests. This is because, despite attempts to portray some EU initiatives as technocratic and/or neutral, CSDP initiatives are inherently political. They touch upon highly sensitive issues such as who exercises the monopoly over the use of force or control over a given territory, affecting the balance of power among conflict parties. By promoting a specific policy, the EU empowers and disempowers one side or the other of any given conflict.77 For these reasons, local politics have affected civilian missions, and above all their effectiveness. In the worst cases, opposition to the EU’s intervention put the safety of EU personnel at risk. The shooting down of a helicopter of the European Community Monitoring Mission in 1991 is the most tragic example of the impact of local politics on EU civilian missions. EUPOL Afghanistan also provides an illustration of how a difficult war-like context can undermine the effectiveness of the mission and the medium- and long-term sustainability of the reforms.78 It is noteworthy that the EU has opted for technocracy as a substitute for strategy, with the EU choosing to deliberately keep its profile low and to de-politicize its engagement. This has particularly been the case in the Eastern neighbourhood so as to not antagonize Russia.79 Here, the EU has relied on the European Neighbourhood Policy as the main framework to deal with conflicts in the region since it is seen as a long-term and largely technocratic (non-political) exercise and thus a more palatable instrument. In some cases, the EU shied away from using the ‘CSDP’ denominator and 76

Council of the EU, ‘Implementation Plan on Security and Defence’ (n 22) 28. AE Juncos, ‘Europeanization by Decree? The Case of Police Reform in Bosnia’ (2011) 49 Journal of Common Market Studies 367. 78 Tardy (n 34). 79 A Huff, The role of EU defence policy in the Eastern neighbourhood (Occasional Paper 91, EU–ISS 2011). 77

108 Research handbook on the EU’s common foreign and security policy instead used the Commission as an umbrella – e.g. with the EUBAM mission to Moldova and Ukraine and the EU Border Support Team in Georgia. But more telling of the EU’s current approach in Eastern Europe are those cases of ‘missed opportunities’, where the EU could have launched a civilian mission and decided against doing so, such as in Georgia in 2005. In this case, the Themis mission in Georgia deliberately excluded from its mandate the frozen conflicts of South Ossetia and Abkhazia. When the existing OSCE Border Monitoring Operation on the Georgian–Russian border had to be withdrawn because of the Russian veto in 2005, the EU was unable to deploy a civilian CSDP mission to replace the OSCE operation.80 As a result, EUJUST Themis lacked a real strategic outlook. In other cases, what we have seen is an attempt by the EU to portray its civilian missions as non-political in nature. A case in point is the EUPM in Bosnia (2002– 2012). The projects undertaken by the EUPM were presented as technical reforms and justified as a way to increase the efficiency and rationalization of Bosnian police forces. The language of the EUPM mandate avoided references to political elements and instead chose neutral terms such as ‘sustainable’, ‘best practice’, and so on. No mention, however, was made of how these reforms might impact on the balance of power among the conflict parties or the legitimacy of the EU’s intervention more generally.81 The politicization of the EUPM had the opposite effect of increasing opposition by the local elites and, in particular, Bosnian Serbs, who saw the police reform as an attempt to centralize police structures. In other cases, however, the technical nature of EU interventions has not hindered the (perceptions of) effectiveness of the mission such as in the case of EUBAM Moldova Ukraine.82 More recently, the EU has sought to increase local ownership as an attempt to increase buy-in and improve the legitimacy and effectiveness of its missions. Local ownership has thus become a buzzword in Brussels, with an increased emphasis at the EU level on the need to increase the involvement of the host governments and societies. This is in line with the idea of building the resilience and capacity of the EU’s neighbouring countries (see above). Thus, the EUGS calls for a ‘bottom up approach’83 – or at least to ‘blend top-down and bottom-up efforts’ – to foster local agency. As put by the EUGS, ‘[p]ositive change can only be home-grown, and may take years to materialize’.84 As mentioned earlier, most of the CSDP civilian missions (with the exception of EULEX Kosovo) have favoured an approach that emphasizes supporting rather than replacing local capacities in line with the idea of local ownership. In practice, however, as shown by the case of EUCAP Nestor, civilian CSDP missions have fallen short of promoting local ownership, especially when it comes to the design (and not just the implementation) of the missions.85 80

ibid, 19. AE Juncos, ‘Member State-building vs Peacebuilding. The Contradictions of EU Statebuilding in Bosnia and Herzegovina’ (2012) 29 East European Politics 58. 82 Zarembo (n 45). 83 ‘Shared Vision, Common Action’ (n 5) 31. 84 ibid, 27. 85 F Ejdus, ‘“Here is your mission, now own it!” The rhetoric and practice of local ownership in EU interventions’ (2017) 26(4) European Security, http://dx.doi.org/10.1080/ 09662839.2017.1333495. 81

Civilian CSDP missions 109

7. CONCLUSION This chapter has shown how civilian CSDP has become an important component of this policy. While it has not always figured in political and academic debates about the future of CSDP, the civilian dimension of CSDP has made significant progress in terms of institutionalization and operationalization. In particular, the reforms brought forward by the Lisbon Treaty, including the establishment of the double-hatted High Representative, have opened the way for a more flexible approach and more interactions with Commission instruments. However, institutional reforms alone have not been sufficient to mobilize the necessary political will and resources to make the EU’s ambitions in civilian crisis management a reality.86 Other factors, such as increasing insecurity in the neighbourhood (including the Ukrainian crisis and the refugee crisis to name a few) and internal events (Eurozone crisis, rise of Euroscepticism, Brexit) which have informed the EUGS and the Implementation Plan for Security and Defence, have had (and promise to have) more of an impact on the development of this policy. There are many reasons to believe that civilian CSDP will continue to be a key instrument in the EU’s security toolbox. First, the EU prides itself on the ability to adopt an integrated approach to security, combining civilian and military means.87 This constitutes a comparative advantage vis-à-vis other security organizations such as NATO. Secondly, the idea of the EU as a ‘civilian’ or ‘normative power’ also relies to a great extent on the ability to use civilian means to achieve its objectives. Civilian crisis management missions help promote the EU’s values and norms beyond its borders by promoting and strengthening the rule of law, human rights and democracy, which, more often than not, require a long-term and non-executive approach such as the one privileged by civilian CSDP. The EU’s missions have also shown some degree of flexibility and adaptability to new security challenges, although this flexibility has been limited by institutional constraints, for example, limited integration with justice and home affairs instruments. The future of civilian CSDP will be determined by how well the EU addresses some of the challenges identified in this chapter and, in particular, the need to bridge the capabilities–expectation gap and effectively manage the politics of civilian crisis management. The first challenge has been acknowledged at all levels. However, for years the EU and its Member States have failed to commit the quality and quantity of personnel required for civilian CSDP, widening further the capability–expectation gap. Although expectations were lowered after the entry into force of the Lisbon Treaty, an increasing sense of insecurity as a result of the crises affecting the Eastern and Southern neighbourhood could well provide the necessary impetus to improve the recruitment and training of civilian personnel serving in CSDP missions as demonstrated by the new initiative establishing a civilian CSDP Compact. More difficult will be to address the problems relating to the politics of civilian crisis management. Intergovernmental politics will continue to play a key role in shaping this policy area although, as before, the insecurities relating to external and internal (Brexit) crises might also have a unifying effect, at least in the short and medium term. A move 86 87

In this regard, I agree with the overall assessment of Pirozzi (n 49). ‘Shared Vision, Common Action’ (n 5).

110 Research handbook on the EU’s common foreign and security policy towards a more integrated approach could also lessen the effects of bureaucratic politics although they will never be completely eliminated. Finally, a stronger commitment to and implementation of the local ownership principle could also go some way to addressing the impact of local politics.

* Research for this article has received funding from the European Union’s Horizon 2020 research and innovation programme under grant agreement no.: 653227. The content reflects only the author’s views, and the European Commission is not responsible for any use that may be made of the information it contains.

6. Military CSDP operations: strategy, financing, effectiveness Daniel Fiott

1. INTRODUCTION On the back of successful military deployments to the Democratic Republic of the Congo (Operation Artemis), Chad and the Central African Republic (EUFOR Chad/ RCA) and the Horn of Africa (Operation Atalanta), the EU can draw on an increasing wealth of operational knowledge and expertise. Yet, as the EU develops a more ‘comprehensive’ and ‘integrated’ approach to crisis response, a number of operational, institutional and legal issues present themselves. The nature and political objectives of CSDP military operations are driven by the evolving security context in the EU’s near and wider neighbourhood. In many respects, the scope, extent and objectives of CSDP military operations are evolving in light of a shifting institutional context with a growing role for the European External Action Service (EEAS) and the High Representative/Vice-President for the EU’s foreign and security policy (HR/VP). Furthermore, CSDP military operations occur in an evolving politico-military context in which the military approach of the EU is increasingly tailored to crisis situations. Not only have non-EU, ad hoc operations such as those in Iraq and Afghanistan blunted the appetite for large-scale deployments, but there is also recognition on the part of military planners that to simply address the symptoms of crises is not strategically sustainable. What is often termed the ‘comprehensive approach’ in EU parlance is, when translated into politico-military planning, a desire to not see any backsliding into crises or instability once a sustainable level of security has been achieved.1 The aim of this chapter is to look at the intersection of the legal and operational parameters in which military operations under the CSDP are deployed. To this end, the chapter focuses on three broad challenges and it draws on relevant case studies to provide greater empirical context. The first challenge relates to the relationship between the initial legal parameters of deployment and how operational decisions may lead to and require politico-strategic flexibility. In this context, the chapter draws on early lessons from Operation Sophia to show how the original political objectives for deployment (i.e. reconnaissance and the disruption of trafficker networks) are increasingly giving way to new operational needs (i.e. less about littoral operations near Libya and more about solace operations). The second challenge relates to the available funding and legal issues surrounding the deployment of CSDP operations. In this context, the chapter looks at some of the challenges facing the EU’s Training Missions (EUTMs) and what a lack of funding and legal clarity for such operations means in 1 Commission/EEAS, ‘Joint Staff Working Document: Taking Forward the EU’s Comprehensive Approach to External Conflict and Crises – Action Plan 2015’ SWD (2016) 254 final.

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112 Research handbook on the EU’s common foreign and security policy terms of mission effectiveness, lessons learned and the comprehensive approach. The final challenge relates to how geopolitical and strategic shifts affect the nature and remit of EU institutions involved in the deployment of CSDP military operations.

2. EVOLVING STRATEGIC CONTEXTS 2.1 Politico-strategic Planning Structures One important feature of CSDP military operations is how the politico-strategic objectives and legal parameters set down by the Council of the EU in advance of a CSDP deployment are liable to change during the life-cycle of a military operation. Such change is driven by the strategic context in which CSDP operations are deployed. Indeed, a feature of any military operation is the interaction between the politicostrategic level of operations deployment (‘political guidance’) and operational and/or tactical requirements (‘the facts on the ground’). Within the EU there is a well-defined political process guiding this politico-strategic and operational/tactical interaction (see Figure 6.1). To begin with, Article 42(4) Treaty on European Union (TEU) states that the Council – acting unanimously on a proposal from the HR/VP – can launch an operation under the CSDP. Any decision to deploy a CSDP military operation begins with the unanimous consent of the Political and Security Committee (PSC) and formal adoption by the Foreign Affairs Council (FAC). Along with the EU Military Committee (EUMC), which is a Council body composed of EU Member State military officials, the PSC and FAC retain politico-strategic oversight of CSDP military deployments, both at the inception of these operations and during the conduct of them. As the chair of the FAC, the HR/VP plays an important role in overseeing the relevant EU institutions through the planning phase of a military operation. After the PSC, FAC, HR/VP and EUMC have agreed in principle that an EU military operation is needed, work begins on drafting what is termed the Crisis Management Concept (CMC). The CMC is a planning document that brings together the EU’s overall strategic objective in a given crisis situation, with the tools the EU has available to conduct its CSDP operations (i.e. military capabilities). The CMC is, in essence, designed to offer the PSC, FAC and HR/VP a range of possible operational options. The overall body responsible for drafting the CMC is the EEAS’ Crisis Management and Planning Directorate (CMPD). The CMPD is a post-Lisbon creation designed to ensure an integrated civilian-military planning structure for the EU. Among other duties, the CMPD ensures strategic planning for CSDP operational deployment and it reviews ongoing missions. Informing the work of the CMPD on the CMC are the EU’s very own military staff (EUMS) and the Civilian Planning and Conduct Capability (CPCC), which provides advice and coordination on civilian and civ-mil operations deployed under the CSDP. The EUMS is crucial to the deployment of CSDP military operations because it serves as the EU’s early warning, situational awareness and strategic planning hub. Although the EUMS provides strategic advice to the HR/VP, the Military Staff mainly work with the EUMC – a body composed of the Chiefs of Defence (CHODs) of each EU Member State.

Military CSDP operations 113 Once in possession of the CMC, the PSC is able to take a decision on the military-strategic option best suited to the crisis situation. The PSC may consult a number of working groups in the Council of the EU when deciding on which option to pursue. These bodies usually include the EUMC and the Politico-Military Group (PMG) and the working group of foreign relations counsellors (RELEX). Once a decision has been taken by the PSC, the FAC publishes a Council Decision and on this basis a Head of Mission and/or Operational Commander is/are appointed and decisions regarding financial arrangements and capabilities for the military operation are taken.2 Following the Council Decision, the Concept of Operations (CONOPs) and Operation Plan (OPLAN) are drafted to outline the tactical and operational specifics of the military operation (i.e. capabilities, logistics, supply, etc.). Before a CSDP military operation is deployed, however, the EU also has to decide on command and control (C2) and this usually rests on one of three possible C2 or EU Operation Headquarters (EU OHQ) options: the EU cell based at NATO’s Supreme Headquarters Allied Powers Europe (SHAPE), national OHQs provided by an EU Member State/s3 or the EU Operations Centre (OPCEN). On this basis, the EU can undertake executive and/or non-executive operations under the CSDP.4 Of course, the UK’s decision to leave the EU will affect the nature of the EU’s OHQs and the newly created Military Planning and Conduct Capability (MPCC). Created after the UK’s EU referendum, the MPCC has subsumed OPCEN and it is based at the EEAS for the purposes of taking command of all the EU’s non-executive operations, including the EUTMs for the Central African Republic, Mali and Somalia.5 Unless arrangements between the EU and the UK on CSDP military operations and C2 can be found once the UK officially leaves the EU in March 2019, then it is likely that the UK will no longer be able to plug into, draw from or lead the EU’s C2 capabilities. For example, the Council of the EU decided on 30 July 2018 to transfer the operational HQ of EUNAVFOR Atalanta from Northwood (UK) to Rota (Spain) and it also replaced the former British commander of the operation with a Spanish Vice Admiral.6 Furthermore, NATO’s Deputy Supreme Allied Commander Europe (DSACEUR) has traditionally been a UK citizen and he has also occupied command posts for certain EU military operations in the past (e.g. EUFOR Althea), as part of the Berlin Plus 2

A Mattelaer, ‘Decision Making in the Field of CSDP’ in J Rehrl and HB Weisserth (eds), Handbook on CSDP: The Common Security and Defence Policy of the European Union (Federal Ministry of Defence and Sports of the Republic of Austria 2013). 3 France, Germany, Greece, Italy and the UK. 4 The EU Concept for EU-led Military Operations and Missions makes a distinction between executive and non-executive operations. Executive missions refer to military operations that directly replace host nation forces, whereas non-executive missions are designed to support the host nation in an advisory role only. See: Council of the EU, ‘European Union Concept for EU-led Military Operations and Missions’ 17107/14 (Brussels, 19 December 2014) 9. 5 Council of the EU, ‘Concept Note: Operational Planning and Conduct Capabilities for CSDP Missions and Operations’ 6881/17 (Brussels, 6 March 2017) 8–9. 6 Council of the EU, ‘EUNAVFOR Somalia Operation Atalanta: Council prolongs the Operation and decides on new headquarters and new Operation Commander’ accessed 10 September 2018.

114 Research handbook on the EU’s common foreign and security policy arrangements between NATO and the EU. Any such double-hatted role may be called into question in the future depending on the terms of the UK’s EU departure.7 Political and operational guidance for EU military operations are linked through the relationship of different bodies and individuals (the ‘chain of command’). After the PSC/FAC have given their political consent they appoint an EU Operation Commander (OpCdr), who is responsible for developing both the CONOPs and OPLAN. The OpCdr takes charge of the military-strategic level in the chain of command, which refers mainly to the coordination of the deployment and sustainability of EU forces that have been deployed. Acting under the authority of the OpCdr after appointment by the PSC/FAC is the EU Force Commander (FCdr). The FCdr serves at the operational level and executes the military operation by commanding the assigned forces (land, air, maritime) during the operation.8 Both the OpCdr and FCdr are continuously supported by the EUMS with regular monitoring of the strategic environment.9 In addition to the EUMS, a number of other bodies and agencies provide situational awareness for CSDP military operations. For example, the EEAS’ EU Intelligence and Situation Centre (INTCEN) provide both shared national intelligence reports and open source material. The EU’s Satellite Centre (SATCEN) also features in CSDP operations planning and oversight through the provision of satellite imagery. 2.2 Operation Sophia Despite this well-defined chain of command, the tactical needs of military operations can test the adaptability of CSDP operations when they are deployed in theatre. The recent example of the EU’s naval deployment to the Mediterranean through EUNAVFOR MED Operation Sophia is indicative of the need to have a flexible CONOPs and OPLAN, which can adapt politico-strategic guidance on the basis of operational and tactical requirements. This is especially true in the case of the EU’s naval deployments (of which there are currently two). As far as the history of the EU’s military deployments is concerned, naval operations are relatively new military tasks for the EU. For example, of the 11 military operations deployed by the EU since 2003 (e.g. EUFOR Chad/RCA, Artemis and Althea) nine have been land-based missions focusing on separation of forces, stability missions and military training. This is not to say that these land-based operations are not subject to similar politico-strategic shifts to those observed during maritime operations, but the EU is well versed in operating in inhospitable and hostile land environments. What is new about maritime operations – and especially Operation Sophia – is that there are far fewer naval operational experiences from which the EU can draw lessons, even though Europe’s navies have a wealth of maritime experience. Nevertheless, from 7

J Black, A Hall, K Cox, M Kepe and E Silfversten, Defence and Security After Brexit: Understanding the Possible Implications of the UK’s Decision to Leave the EU (RAND Corporation 2017) 26. 8 Council of the EU, ‘EU Concept for Military Command and Control’ EEAS 02021/7/14 (Brussels, 5 January 2015) 8–9. 9 Council of the EU, ‘EU Concept for Military Planning at the Political Strategic Level’ 6432/15 (Brussels, 23 February 2015) 11.

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Source: European Security and Defence College, 2016.

Figure 6.1 CSDP military operations decision-making bodies a geopolitical point of view the maritime domain has emerged as a key operational theatre for the EU. Indeed, the majority of CSDP operations that have been launched on land in the wider neighbourhood (i.e. to areas such as the Sahel) are premised on a more traditional crisis management paradigm that seeks to contain crisis. What is interesting about the CSDP’s more recent focus on maritime security is that it is more of a reflection of the internal–external security nexus. The maritime domain is one where flows of people, arms, trade and so on find their way from external spaces into the EU. In this sense, the EU is strategically connecting geopolitical spaces in its immediate and wider neighbourhood (i.e. connecting land and maritime domains).10 Interestingly, EU Member States have been far more forthcoming with the types of naval and air assets (see Chapter 8 in this volume) required to effectively secure maritime domains. EU Member States have also not approached CSDP naval operations with the same degree of hesitation that has accompanied the deployment of the (as yet unused) EU Battlegroups for land operations. This is perhaps because EU naval operations are designed to respond to security concerns that directly (and sometimes quite visibly) 10 K Schilde, ‘European Military Capabilities: Enablers and Constraints on EU Power?’ (2017) 55 Journal of Common Market Studies 37.

116 Research handbook on the EU’s common foreign and security policy impact European citizens in Europe itself.11 EU Battlegroups are generally associated with out-of-area operations, meaning that deployment is bedevilled by concerns about a potential loss of troops (the ‘CNN effect’) and the ethics of military intervention more broadly.12 Indeed, EUNAVFOR MED Sophia was deployed as a response to human smuggling and trafficking through the Mediterranean corridor between Libya and EU territory. Operation Sophia is but one element of the EU’s broader approach to relations with Libya, which includes financial support for the protection of migrants and migration management in Libya. Operation Sophia was established by the EU Council on 18 May 2015 and it deployed on 22 June 2015. The core mandate of the operation is thus to contribute ‘to the disruption of the business model of human smuggling and trafficking networks in the Southern Central Mediterranean’.13 At this stage no UN Security Council Resolution (UNSCR) was required because the first phase of the operation – surveillance – occurred in international waters.14 As of 11 September 2018, five surface vessels are on operations in the Mediterranean and these naval assets are supported by two helicopters and four aircraft. However, since 2015 Operation Sophia has seen the deployment of 50 naval vessels and 19 aircraft at intervals to ensure average force strength of approximately five naval units and six air assets at any point during the operation. Twenty-five Member States have contributed to the operation. Belgium, France, Germany, Greece, Italy, Luxembourg, the Netherlands, Portugal, Slovenia, Spain and the United Kingdom have dedicated hard assets to the operation in the form of naval vessels and aircraft.15 Other Member States have contributed specialist personnel (e.g. medical personnel) and equipment. Operation Sophia is structured around four specific operational phases: phase one – to undertake surveillance tasks to better understand smuggling activities and methods (June–October 2015); phase two – seizure and diversion of smugglers’ vessels (October 2015–June 2016); phase three – destruction of smuggling vessels and related assets (June 2016–present); and phase four – withdrawal of forces and completion. When compared to the deployment of other CSDP military operations, the time taken between the CMC and operational deployment was remarkably short: it took one month to generate the forces required for the operation.16 Despite this level of engagement with the operation, however, a key challenge has been to ensure an operational focus in a geopolitical area where numerous security and political challenges compete for a response. First, securing a mandate for the 11 M Riddervold, ‘New Threats, Different Response: EU and NATO and Somali Piracy’ (2014) 23 European Security 546. 12 D Fiott, ‘The Use of Force and the Third Pillar’ in D Fiott and JA Koops (eds), The Responsibility to Protect and the Third Pillar: Legitimacy and Operationalization (Palgrave Macmillan 2015) 130–145. 13 Council of the EU, ‘Council Decision on a European Union military operation in the Southern Central Mediterranean’ CFSP 2015/778 (Brussels, 18 May 2015) 2. 14 S Blockmans, ‘New Thrust for the CSDP from the Refugee and Migrant Crisis’ (2016) CEPS Special Report No. 142, 5. 15 European External Action Service, ‘EUNAVFOR MED operation SOPHIA – Assets’ accessed 20 April 2017. 16 Blockmans (n 14) 4.

Military CSDP operations 117 second phase of the operation was difficult. CSDP military operations are deployed either under a UNSCR, by invitation from a host state and/or through a combination of the two. As late as September 2015, however, the Russian government had vetoed a UNSCR giving a mandate to the EU to act in the southern central Mediterranean with military force, if required. At the same time, the Libyan unity government was still unformed – and rival power centres were located in Tripoli and Tobruk – which made the potential use of force especially challenging.17 To secure both a UNSCR mandate and the blessing of the Libyan authorities, the EU had to augment the operation to include capacity-building training for Libyan coastguards and navy and to assist with the UN arms embargo in Libya. These tasks were important additional tasks for Operation Sophia, which addressed some of the specific needs of the Libyan government. This was not the only example of EUNAVFOR Sophia being subject to the interplay between security and humanitarianism in the Mediterranean.18 Even before the physical deployment of the operation, analysts were pointing to the seeming mismatch between the specific objectives of the operation and the overall strategy for what the EU wanted to achieve in Libya.19 Without consensus in the UNSC and consent from the Libyan authorities, there was only so much the EU could do to stop smugglers and traffickers operating from a maritime position located outside of Libyan territorial waters. Not only did the initial ‘narrowness of the operation’s mandate’ raise questions about how smuggling networks would adapt their behaviour considering the EU’s operational restrictions, but the operation would have to play the dual role of meeting politicostrategic and tactical objectives as well as acting to prevent loss of life at sea.20 Relevant EU bodies clearly understood this dilemma. In its guidance to the PSC of 15 May 2015, for example, the PMG recognized that even though the core mandate of the operation related to smuggling and trafficking, naval vessels participating in the operation could not neglect their international obligations under the Safety of Life at Sea (SOLAS), the UN Convention on the Law of the Sea (UNCLOS) and the Search and Rescue (SAR) Convention – that is, they had to be ready and able to conduct search and rescue tasks.21 Yet this sort of ‘mission creep’ was not the only operational issue facing the EU, for the ability of the EU to develop a comprehensive approach to the crisis in Libya was 17

T Tardy, ‘Operation Sophia: Tackling the Refugee Crisis with Military Means’ (Brief Issue, EU-ISS 30 September 2015) accessed 14 April 2017. 18 N Perkowski, ‘Deaths, Interventions, Humanitarianism and Human Rights in the Mediterranean “Migration Crisis”’ (2016) 21 Mediterranean Politics 331. 19 G Faleg and S Blockmans, ‘EU Naval Force EUNAVFOR MED sets Sail in Troubled Waters’ (CEPS Commentary, 26 June 2015) accessed 19 April 2017. 20 Tardy (n 17) 1 and 4. 21 Council of the EU, ‘Draft Crisis Management Concept for a Possible CSDP Operation to Disrupt Human Smuggling Networks in the Southern Central Mediterranean’ 8824/15 (Brussels, 12 May 2015) accessed 14 April 2017.

118 Research handbook on the EU’s common foreign and security policy also challenging. The ‘comprehensive approach’ aims to provide an encompassing diplomatic, political, economic and humanitarian approach to crises – i.e. not just ‘sending in the marines’ but looking to longer-term stability. Following on from the experiences of the EU’s other naval operation to the Horn of Africa – EUNAVFOR Atalanta – there was some hope that the EU could bring development aid, capacitybuilding and security together in the same way in Libya. Indeed, the Political Framework for Crisis Approach (PFCA) for Libya, which was drafted in October 2014, clearly spelled out the need to improve security in Libya with a view to laying down the conditions for economic development.22 Implementing a comprehensive approach in Libya would be extremely challenging, however, especially given the shifting political state in Libya itself. True, the EU had deployed EUBAM Libya in 2013 to help build border management capacity in the country, but the mission is civilian in nature and it is not even located in Libya itself: it is currently based in Tunis, Tunisia. It was clear that no ‘cut and paste’ from the EU’s experiences in the Horn of Africa would be possible in Libya. Operation Sophia has also been deployed in the context of increased interinstitutional cooperation between the EU and NATO. Although Operation Sophia was deployed before the 8 July 2016 signing of the EU-NATO Joint Declaration and the initial 42 action points agreed between the two organizations on 6 December 2016, this drive towards enhanced cooperation on defence has seen NATO deploy alongside the EU in the Mediterranean. Indeed, by launching Operation Sea Guardian in October 2016 as a non-Article 5 operation, NATO aims to enhance situational awareness and capacity-building in the Mediterranean. In a more practical sense, Sea Guardian not only manages to increase maritime surveillance in the Western and Eastern parts of the Mediterranean (in order to provide strategic depth and width to EUNAVFOR Sophia), but also plays a technical role by providing submarine and refuelling services. For NATO and the EU, maritime cooperation has emerged as a key element of interinstitutional cooperation; one must not forget that NATO is also working closely with the EU’s Frontex agency in the Aegean Sea to assist with the migration crisis.23 Both the EU and NATO operate in the context of SHADE MED to improve shared awareness and de-confliction in the Mediterranean.24 While cooperation is a political statement by both organizations, EU-NATO maritime operations are still affected by the constraints of the aforementioned rules of engagement in the Mediterranean.25 Finally, although the EU and NATO are enhancing maritime cooperation there are still 22

Council of the EU, ‘Libya, a Political Framework for a Crisis Approach’ 13829/14 (Brussels, 1 October 2014). 23 MJ McNerney, G Persi Paoli and S Grand-Clement, Cross-Cutting Challenges and Their Implications for the Mediterranean Region (Cambridge/RAND 2017). 24 SHADE MED is a forum for interested governments and organizations dedicated to sharing information on migration and maritime security in the Mediterranean basin. To date, SHADE MED has brought together 16 non-governmental organizations, 20 international organizations, 39 governments, 12 military representatives and/or missions, one university and four companies. See accessed 7 July 2017. 25 L Watanabe, ‘Libya’s Future: Uncertain, Despite a Political Agreement’ (2016) 23 Middle East Policy 114.

Military CSDP operations 119 questions about the ultimate strategic objectives both organizations share for maritime security in the Mediterranean given their distinct mandates.

3. FINANCING MILITARY OPERATIONS The evolving politico-strategic context is not the only important factor that affects the nature and effectiveness of CSDP military operations. Indeed, one of the perennial challenges facing EU policy planners is how to finance CSDP operations. Article 41(1) of the TEU states that all administrative expenditure associated with CSDP operations is charged to the EU budget, and CSDP civilian operations are funded directly from the Union budget under the ‘Global Europe’ budget line (Chapter 19 03 01). For CSDP military operations, however, a different set of procedures are in place as Article 41(2) TEU specifically forbids military operations from being funded from the EU budget (unless the Council of the EU specifically decides otherwise, which it has not done so far). Thus, for CSDP military operations the principle of ‘costs lie where they fall’ is observed, which means that those Member States that want to launch and be part of a military operation cover the costs. In addition to this principle, the Member States can also draw on the Athena mechanism26 for operations – this is a pooled fund calculated through a share of the gross national income index, which can fund common costs such as HQ running costs, fuel and even medical evacuation. This mechanism is an ad hoc fund and does not derive from the EU budget. 3.1 ‘Train and Equip’ Yet debates about funding CSDP military operations are well rehearsed. Arguments to date largely focus on burden-sharing within the Athena mechanism27 and even parliamentary scrutiny of the Athena mechanism and military operations.28 These factors do not require any further appraisal here but an area of increasing interest is the financing of particular types of CSDP military operations. More specifically, a number of military operations that have been deployed in recent years focus on security capacity-building in third countries. Such operations seek to ‘train and equip’ security forces in third countries with a view to stabilizing state structures. Indeed, EUTMs have 26 Council Decision (CFSP) 2015/528 of 27 March 2015 establishing a mechanism to administer the financing of the common costs of European Union operations having military or defence implications (Athena) and repealing Decision 2011/871/CFSP [2015] OJ L84/39. 27 F Terpan, ‘Financing Common Security and Defence Policy Operations: Explaining Change and Inertia in a Fragmented and Flexible Structure’ (2015) 24 European Security 221; NIM Nováky, ‘Who Wants to Pay More? The European Union’s Military Operations and the Dispute over Financial Burden Sharing’ (2016) 25 European Security 216; and F Mérand and A Rayroux, ‘The Practice of Burden Sharing in European Crisis Management Operations’ (2016) 25 European Security 442. 28 J Wouters and K Raube, ‘Seeking CSDP Accountability Through Interparliamentary Scrutiny’ (2012) 47 The International Spectator: Italian Journal of International Affairs 149; and A Huff, ‘Executive Privilege Reaffirmed? Parliamentary Scrutiny of the CFSP and CSDP’ (2015) 38 West European Politics 396.

120 Research handbook on the EU’s common foreign and security policy been deployed to Mali (in 2013), the Central African Republic (in 2016) and Somalia (in 2010) to help modernize and professionalize forces into ethical and democratically accountable forces, and to promote effective responses to threats such as terrorism. Quite apart from these operations to Africa, the Council of the EU also views capacity-building through training as a way to improve partner capacities in ‘the areas of strategic communication, cyber security and border security’.29 Financing EUTMs has created a particular challenge because there are restrictions on how far EU funds (the EU budget or otherwise) can be used to procure arms, ammunition and equipment for military forces in third countries. As has been stated, Article 41(2) TEU strictly forbids using the EU budget to fund military operations unless the Council of the EU so decides. This implies that a range of security-relevant financial instruments that derive from the EU budget cannot be used for military operations. For example, while the Instrument Contributing to Stability and Peace (IcSP) has been used in the past to train and equip police forces in places such as Niger, it is not entirely suited to military ‘train and equip’ missions. While the IcSP Regulation does not specifically forbid military ‘train and equip’ funding,30 the emphasis is clearly placed on civilian measures (see, for example, Article 3(2)(d and g)). Unlike the IcSP, however, Article 3(13) of the Development Cooperation Instrument (DCI) Regulation is much clearer on the prohibition of EU funding for the procurement of arms and/or ammunition.31 Consequently, ‘there is currently no EU budget instrument designed to provide a comprehensive financing to security capacity building in partner countries, in particular its military component’.32 Outside of the EU budget, however, more flexible responses can be found, even if restrictions on military ‘train and equip’ initiatives still exist. For example, in the past the African Peace Facility (APF) has provided the African Union (AU) with financing for training and exercises for peacekeeping operations such as that in Somalia (AMISOM). Funded under the European Development Fund (EDF), the APF is a good example of where non-EU budget financing mechanisms can be used to support military capacity-building initiatives in third countries although even the APF has ‘never been used to pay for equipment’.33 However, it should be considered that the EDF and the APF were not designed to conveniently circumvent the restrictions on the 29 Council of the EU, ‘Implementing the EU Global Strategy in the Area of Security and Defence’ 14149/16 (Brussels, 14 November 2016) 5. 30 In places the IcSP regulation is vague on the specific issue of funding for military ‘train and equip’ operations although this vagueness cannot realistically serve as a legal basis for the funding of ‘train and equip’ missions. For example, Article 4(2)(c) states that EU support for crisis response in third countries ‘may include technical and financial assistance for the implementation of peace-building and State-building support actions’ [author’s emphasis]. State-building actions would arguably include support for military services. Council of the EU, ‘Regulation Establishing an Instrument Contributing to Stability and Peace’ No. 230/2014 (Brussels, 11 March 2014). 31 Council of the EU, ‘Regulation Establishing a Financing Instrument for Development Cooperation for the Period 2014–2020’ No. 233/2014 (Brussels, 11 March 2014). 32 Commission/EEAS, ‘Joint Communication: Capacity Building in Support of Security and Development – Enabling Partners to Prevent and Manage Crises’ JOIN (2015) 17 final 8. 33 T Tardy, ‘Enabling Partners to Manage Crises – From “Train and Equip” to CapacityBuilding’, EU Institute for Security Studies Policy Brief, No. 18 (2015) 2 accessed 15 April 2017. 34 H Merket, The EU and the Security-Development Nexus: Bridging the Legal Divide (Brill Nijhoff 2016) 111. 35 European Commission, ‘The Cotonou Agreement’ accessed 20 April 2017. 36 C Lamb, S Arkin and S Scudder, The Bosnian Train and Equip Program: A Lesson in Interagency Integration of Hard and Soft Power (National Defense University Press 2014) 17–18. 37 Commission/EEAS (n 32) 3. 38 Tardy (n 33) 2 and JI Moreno Zamora, ‘Perspectivas de Futuro de la Iniciativa “Train and Equip” en el Contexto de la Union Europea’ (2015) 94 Instituto Español de Estudios Estratégicos Opinión accessed 20 April 2017. 39 European Peacebuilding Liaison Office, ‘Capacity Building in Support of Security and Development: Gathering Civil Society Input – Minutes’ (2015) 4 accessed 19 April 2017.

122 Research handbook on the EU’s common foreign and security policy (Case C-91/05) of 20 May 2008, for example, raised important questions about whether EU financial assistance to support the Economic Community of West African States’ (ECOWAS) steps to control the proliferation of small arms and light weapons (SALW) should have been provided on the basis of a Council Joint Action (Article 14 TEU on the CFSP) or on the basis of the EC Treaty (Article 179 TEC). Through its support to ECOWAS, the Commission had argued that the issue of SALW was an economic and social development issue rather than just an issue of security and proliferation. The CJEU has ruled that there was an incompatibility between the CFSP and EC legal bases and, in line with the pre-Lisbon ‘non-affect’ clause of Article 47 TEU, gave precedence to the latter.40 Post Lisbon, a similar issue of legal demarcation can be observed in the CJEU’s judgment in European Parliament v Council of the EU (Case C-263/14) of 14 June 2016 concerning the transfer of suspected pirates from the EUNAVFOR Atalanta operation to the Republic of Tanzania. In this case, the European Parliament called for the annulment of Decision 2014/198/CFSP as it contested the legal basis on which it was taken.41 The Council had based its Decision on Article 37 TEU, which did not require the consent of the Parliament, but the Parliament claimed that Article 218(10) TFEU should have provided the legal basis for the EU–Tanzania Agreement (signed 1 April 2014). In making this case, the European Parliament was essentially arguing that the transfer of suspected pirates was as much an issue of police and judicial cooperation as it was one of military affairs (enshrined in the TEU). This symmetry is to be found back in the new ‘non-affect’ clause of Article 40 TEU, which states, on the one hand, that the implementation of the CFSP is not to affect the procedures and institutional powers established for the exercise of TFEU-based competences; on the other hand, nor is the implementation of those policies to affect the procedures and the institutional balance of power within the CFSP/CSDP. As noted by Cremona in Chapter 1 in this volume, ‘the Court did not … espouse this distinction between internal and international security, but preferred instead to link the objectives of the agreement at issue with those of the CSDP mission which it was designed to facilitate; the CSDP character of the agreement was thus made clear’.42 While these concerns are recognized by EU policy planners, this has not stopped EU efforts to find an adequate balance between security and development.43 As the High Representative/Vice-President (HR/VP) recognizes, the EU’s comprehensive approach might be tested when training provided by the CSDP is ‘hampered by a lack of basic partner country equipment’.44 For example, even though the EUTMs in Mali and Somalia were funded through Member States’ contributions and the Athena mechanism, policy planners soon discovered that the lack of communication systems, 40 S Blockmans and M Spernbauer, ‘Legal Obstacles to Comprehensive EU External Security Action’ (2013) 18 European Foreign Affairs Review 7; and R van Ooik, ‘Cross-Pillar Litigation Before the ECJ: Demarcation of Community and Union Competences’ (2008) 4 European Constitutional Law Review 399. 41 P Koutrakos, EU International Relations Law (2nd edn, Bloomsbury 2015) 538. 42 See Chapters 1 and 4 in this volume. 43 S Keukeleire and K Raube, ‘The Security-Development Nexus and Securitization in the EU’s Policies Towards Developing Countries’ (2013) 26 Cambridge Review of International Affairs 556. 44 Commission/EEAS (n 32) 2.

Military CSDP operations 123 protective equipment, medical equipment and accommodation stymied the ability of Malian and Somali forces to become operationally autonomous. In essence, the lack of capacity in Mali and Somali would hamper a more comprehensive approach for these two countries and the regions they inhabit as a whole. This is of particular concern where research shows that small and under-resourced ‘train and equip’ missions have a tendency towards small security pay-offs.45 For example, it was recognized that the Somali National Army (SNA) were finding it difficult to access key locations in Mogadishu and surrounding regions because it lacked the equipment needed to do so.46 Recognizing these challenges, the European Commission proposed an amendment to the IcSP Regulation in 2014 (see No. 230/2014) to allow for exceptional funding of third-country security and military services. However, while the resulting proposal (see COM(2016) 447 final) did foresee the funding of infrastructure and non-lethal equipment (i.e. communications hardware and medical support) it did not propose any amendments to allow the EU to provide lethal equipment to third-country services during CSDP operations.47 For the time being, therefore, EUTMs will continue to face financial pressures when it relates to equipping third-country forces, although the recently proposed European Peace Facility (EPF) could ease these financial pressures. The EPF would be a fund worth €10.5 billion that would exist outside of the EU budget by bringing together contributions under the Athena mechanism and the APF. The proposed EPF is designed to financially support EU partners with their military training capacities, among other things. Despite the well-founded reservations about ‘train and equip’, certain CSDP military operations face substantial operational constraints because training is only as useful as the equipment (both lethal and non-lethal) armed forces can use. Therefore, somewhere in the ‘security–development nexus’ there are EU military trainers who are currently facing severe tactical and operational restrictions. Calibrating the security–development nexus along EU lines is a particular challenge associated with ensuring that the ‘comprehensive approach’ works effectively. This challenge will likely become even more relevant as the EU builds on the ‘comprehensive approach’ with a new security concept that can be found in the EU Global Strategy: the ‘integrated approach’. Indeed, whereas the comprehensive approach focuses on the tools required to respond to crisis in all of its forms (development, economic, diplomatic and military), the integrated approach expands this by focusing not simply on a crisis but on ‘all stages of the conflict cycle, acting promptly on prevention, responding responsibly and decisively to crises, investing in stabilization, and avoiding premature disengagement when a new crisis erupts’.48 The EU also wants to use the integrated approach as a way to respond to conflicts at the local, national, 45 S Biddle, J Macdonald and R Baker, ‘Small Footprint, Small Payoff: The Military Effectiveness of Security Force Assistance’, Journal of Strategic Studies (early online version) accessed 4 May 2017. 46 European Scrutiny Committee, Capacity Building in the Horn of Africa (2015–16, HC 25)

accessed 16 April 2017. 47 Commission/EEAS (n 32) 4. 48 European External Action Service, ‘A Global Strategy for the European Union’s Foreign and Security Policy’ (2016) accessed 7 May 2017.

124 Research handbook on the EU’s common foreign and security policy regional and global levels. The integrated approach is therefore much more ambitious in scope than the comprehensive approach, but either way the EU will still have to iron out many of the existing creases that affect the EU’s ability to bring together development and security tools effectively.

4. THE QUEST FOR OPERATIONAL EFFECTIVENESS 4.1 Institutional Responses to Global Change Another relevant aspect of the EU’s military operations relates to the shifting context of the EU’s institutional make-up and broader geopolitical shifts. It is possible to point to a number of instances where shifts in the global geopolitical context have directly fed into institutional changes at the EU level. One of the recent examples that should be borne in mind is the establishment of the EEAS. Of course, the EEAS was born of the institutional changes that were deemed necessary in the first decade of the 2000s, which culminated in the Treaty of Lisbon. Along with ‘double hatting’ the High Representative as one of the European Commission’s Vice-Presidents, Article 26(2) TEU made clear that by establishing the EEAS the aim was to ensure unity, consistency and effectiveness of the EU’s approach to external action. The quest for a more coherent and effective EU in the field of foreign, security and defence had long been a stated ambition of EU Member States. The TEU explicitly recognizes that ‘Member States shall support the Union’s external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity’ (see Article 11(3) TEU). Yet coherence and effectiveness were not just about institutional streamlining by bridging the Council of the EU and European Commission’s competencies and tools. Indeed, during the establishment of the EEAS in 2010 a number of international crises emerged to drive home the necessity for more effective EU action. Not only did the global financial crisis of 2008 mean that resources for external action and security and defence were increasingly strained (e.g. defence spending in 27 EU Member States49 fell by approximately €6 billion from 2008 to 201050), but events occurring throughout the establishment of the EEAS (2010–2011), such as the 12 January 2010 earthquake in Haiti (resulting in over 316,000 deaths), the 18 February 2010 coup in Niger and the beginning of the ‘Arab Spring’ in Tunisia in December 2010, seemed to confirm the need for more credible crisis response mechanisms at the EU level. At a time when the EU appeared to be developing the types of institutions required to deal with security crises in its neighbourhood and further afield, the momentous crises that erupted through 2010 and 2011 meant that the EU needed more than just institutional

49

This is 27 rather than 28 because Denmark has an opt-out from CSDP and so its defence spending is not included in European Defence Agency figures. 50 European Defence Agency, ‘Defence Data 2011’ accessed 6 July 2017.

Military CSDP operations 125 streamlining. Indeed, the EU had to mobilize its institutions to craft new responses to crises in the southern and eastern neighbourhoods.51 More specifically on military operations, the EU did attempt to use the transition towards the EEAS to improve its military crisis response mechanisms. Despite being accused of serious divisions preceding the 2011 Libya intervention,52 the EU continued to adapt its institutional structures to support the emerging logic of the ‘comprehensive approach’. This approach, which was defined in clearer terms in a 2013 Joint Communication by the EEAS and European Commission, was supposed to lead ‘to the joined-up deployment of EU instruments and resources’.53 This ethos had already featured during the establishment of the EEAS. For example, the EU Military Staff – which was initially established under the Cologne European Council (1999) as a body within the Council General Secretariat – was moved to the EEAS. The logic here was that the HR/VP would not be able to conduct their duties without having at their disposal all the relevant crisis management institutions.54 Furthermore, by moving the EUMS within the EEAS it would be possible for the EU to focus on the closer civil–military coordination eventually called for as part of the EU’s comprehensive approach to crises.55 A more recent example of where institutional responses emerge out of strategic change can be found in the aftermath of the UK’s decision to leave the EU in 2016. Indeed, the UK’s decision has spurred a number of policy initiatives designed to improve the effectiveness of EU military operations. Once-dormant ideas, such as having a single ‘EU Operation Headquarters’ (EU OHQ),56 re-emerged following the UK referendum result in June 2016. As outlined in the Council conclusions of 14 November 2016, the EU28 have decided to create a ‘Military Planning and Conduct Capability’ (MPCC). The MPCC is being created within the EEAS with a view to providing a command and control facility for all non-executive CSDP operations – rather than relying on individual operation commanders for each operation, one commander in the form of the Director General of the EUMS will steer the operations. The British had for many years effectively blocked the idea of an EU OHQ on the understanding that the establishment of an operational headquarters would somehow duplicate NATO’s SHAPE.57 Intriguingly, however, despite (or indeed because of) the 51

R Whitman and AE Juncos, ‘The Arab Spring, the Eurozone Crisis and the Neighbourhood: A Region in Flux’ (2012) 50 Journal of Common Market Studies 147. 52 N Koenig, ‘The EU and the Libyan Crisis: In Quest of Coherence?’ (2011) 46 The International Spectator: Italian Journal of International Affairs 11; and A Menon, ‘European Defence Policy from Lisbon to Libya’ (2011) 53 Survival: Global Politics and Strategy 75. 53 Commission/EEAS, ‘The EU’s Comprehensive Approach to External Conflict and Crises’ (Joint Communication) JOIN (2013) 30 final 3; and ME Smith, ‘Institutionalising the “Comprehensive Approach” to EU Security’ (2013) 18 European Foreign Affairs Review 25. 54 L Erkelens and S Blockmans, Setting up the European External Action Service: An Institutional Act of Balance (CLEER Working Paper No. 1, TMC Asser 2012) 16. 55 N Hynek, ‘EU Crisis Management after the Lisbon Treaty: Civil-Military Coordination and the Future of the EU OHQ’ (2011) 20 European Security 81. 56 ibid. 57 S Biscop, ‘The UK and European Defence: Leading or Leaving?’ (2012) 88 International Affairs 1297.

126 Research handbook on the EU’s common foreign and security policy UK’s impending departure from the EU, it did not block the creation of the MPCC in the Council of the EU, even though it had some reservations about some of the wording surrounding the MPCC. London’s post-referendum messaging on security and defence relations with the EU has centred on a constructive and close relationship, and it does not appear that the UK wanted to spoil any chances of building healthy security and defence arrangements with the EU by blocking the MPCC.58 4.2 Political Responses to Global Change Even though the EUMS and EEAS have had the time to develop new working practices since 2011, the interplay between geopolitical changes and institutional responses remains a key factor in the evolving nature of the EU’s military response to crises. One of the more recent examples that has had an effect on European defence cooperation was the decision by France to invoke Article 42(7) TEU (otherwise known as the ‘mutual assistance clause’) on 17 November 2015. France’s decision was taken in the wake of the Paris terrorist attacks on 13 November 2015. Article 42(7) stipulates that EU Member States shall have an obligation of aid and assistance to a Member State that is the victim of armed aggression on its territory. While this specific article of the Treaties is vague in what precisely is meant by ‘armed aggression’ or ‘aid and assistance’, the invocation of the Treaty took on a symbolic meaning for European solidarity – even though it would not technically involve the EU institutions or lead to a decision to mount a military CSDP operation (especially not on the territory of the EU).59 It had practical implications too. Indeed, the severity of the Paris attacks and France’s need to respond to homeland security ‘meant that EU Member States could simply not ignore France’s requests’.60 As France would have to concentrate even more on homeland security by enhancing Opération Sentinelle, and as this would mean allocating more troops for deployment in France, the required EU solidarity from other Member States would come in the form of strengthening CSDP operations in sub-Saharan Africa61 and/or coalition operations in Syria and Iraq.62 Germany responded to the mutual assistance clause by looking into increasing its deployments in places such as Mali. Indeed, although the Bundeswehr has been present in Mali since 2013 under the UN MINUSMA mission, the aftermath 58

J Barigazzi, ‘Boris Johnson Plays Down Spat Over EU Military Unit’ Politico Europe (15 May 2017) accessed 6 June 2017. 59 C Hillion and S Blockmans, ‘Europe’s Self-Defence: Tous Pour Un et Un Pour Tous?’ (CEPS Commentary, 20 November 2015) 2 accessed 2 May 2017. 60 T Tardy, ‘Mutual Defence – One Month On’ (2015) (EU-ISS Policy Alert, 17 December 2015) accessed 16 April 2017. 61 ibid. 62 Hillion and Blockmans (n 59) 3; and A Bakker, ‘Defending Europe: Translating Mutual Assistance into Action’ (Clingendael Policy Brief, January 2017) accessed 19 April 2017.

Military CSDP operations 127 of the Paris attacks saw Berlin move to increase its troop, transport and Tiger and NH90 helicopter contingents in Mali.63 Following France’s invocation of Article 42(7), Germany also decided to deploy additional forces in the fight against Islamic State in Syria. In December 2015 Germany ‘decided that up to 1,200 Bundeswehr soldiers would take part in the international coalition’.64 Other countries would also respond to France’s call for assistance65 but the fact that Germany responded is of particular importance given how crucial France and Germany are to European defence cooperation. Significantly, while EU Member State responses to France’s invocation of Article 42(7) TEU were not strictly of relevance to the CSDP, they nonetheless flagged the important dynamic that exists not only between internal and external security challenges, but also between the EU institutions and Member States. More specifically, despite the fact that Article 42(7) TEU presupposes intergovernmental cooperation between EU Member States, it would become evident that any longer-term response to the so-called internal–external security nexus would require the involvement of supranational institutions at some point. As some commentators have observed, counter-terrorism and radicalization strategies, migration, and hybrid threats such as cyber security cannot be dealt with on an entirely intergovernmental basis.66 In fact, the security and defence implementation plan that followed on from the EU Global Strategy recognized this by remarking that if European states want to protect Europe, then attention needs to be focused on those security ‘grey areas’ such as border protection, critical infrastructure and disaster response that require both a defence and a security dimension.67 Thus, while the invocation of the mutual assistance clause had little direct bearing on CSDP, it did force the EU institutions to think rather more seriously about how the EU can support Member States in security and defence. Another instance where geopolitical realities have affected the nature of CSDP military operations relates to the security and defence implementation plan that was agreed in 2016 and which follows on from the EU Global Strategy. Indeed, on 14 November 2016 the Council of the EU elaborated a new level of ambition for the CSDP that is supposed to build on the crisis management tasks laid down in Articles 42(1) and 43(1) TEU (known as the ‘Petersberg Tasks’). The ‘Petersberg Tasks’ stated that the EU’s military level of ambition should include tasks such as humanitarian and 63

German Federal Government, ‘More Soldiers for Mali’ accessed 14 May 2017. 64 J Gotkowska and K Frymark, ‘Germany’s Engagement in the Resolution of the Syrian Conflict’ (OSW Commentary, 25 January 2016) accessed 20 April 2017. 65 For an update on responses to France’s invocation of Article 42(7) read European Parliament, ‘Activation of Article 42(7) TEU: France’s Request for Assistance and Member States’ Responses’ (Briefing, July 2016) accessed 6 June 2017. 66 S Biscop, ‘The European Union and Mutual Assistance: More than Defence’ (2016) 51 The International Spectator: Italian Journal of International Affairs 119. 67 Council of the EU (n 29) 5; and N Tocci, ‘The Making of the EU Global Strategy’ (2016) 37 Contemporary Security Policy 461.

128 Research handbook on the EU’s common foreign and security policy rescue tasks, peacemaking, disarmament, military advice and post-conflict stabilization. The Council conclusions of 14 November 2016, however, build considerably on these tasks. If, for example, one reads the ‘Annex to the Annex’ to the conclusions, it is possible to learn of the EU’s newly found desire to conduct air and special operations, close air support and air surveillance, response to hybrid threats and maritime security or surveillance operations.68 This last task is particularly interesting given the conclusions’ reference to the need to ensure ‘stable access to and use of the global commons, including the high seas and space’.69 It is no coincidence that such ideas have emerged. After all, one of France’s former defence ministers recently asked whether we could ‘not have European navies coordinate in order to ensure a regular and as visible a presence as possible in the maritime areas of Asia?’.70 Furthermore, much greater attention needs to be paid to the shifting operational context in which CSDP military operations will be deployed in the future. For example, the issue of hybrid threats is particularly important here – and not just because the EU sees itself as an ideal organization to deal with such threats (an assessment shared by NATO, incidentally71). Indeed, capabilities such as cyber defence and autonomous weapons systems are already being used by actual and potential adversaries in the field of operations. Here, one should not just think about the hybrid tactics employed by Russia in Crimea in 2014. There is, for example, now evidence to suggest that even in asymmetric situations, groups such as Islamic State and Boko Haram use unmanned aerial systems72 and/or cyber capabilities.73 It will take some time before the EU can fully conceptually and materially accommodate hybrid threats when it deploys CSDP military operations (the EU is not alone here for even the US military is adjusting to the hybrid paradigm74). Nevertheless, the EU has begun to adjust to the changing strategic environment through bodies such as the European Defence Agency (EDA), which is studying and organizing table-top exercises for hybrid operational scenarios.75 A key future opportunity to really prove the EU’s added value for tackling hybrid threats will emerge in 2018, when the EDA will revise the Capability Development Plan and therefore reconfigure the EU’s doctrine and capability requirements for CSDP military operations. 68

Council of the EU (n 29) 15. ibid, 5. 70 French Ministry of Defence, ‘Jean-Yves Le Drian in Singapore for the 15th Shangri-la Dialogue’, speech by the Minister of Defence (5 June 2016) accessed 14 April 2017. 71 P Pindjak, ‘Deterring Hybrid Warfare: A Chance for NATO and the EU to Work Together?’ (2014) NATO Review accessed 7 July 2017. 72 M Gault, ‘Islamic State’s Drone Fleet’ Reuters (31 March 2017) accessed 7 July 2017. 73 T Aladenusi, ‘Cyberharam: Can Nigeria Prepare for the Next Generation of Terrorists?’ (Deloitte June 2015) accessed 7 July 2017. 74 FG Hoffman, ‘Hybrid Warfare and Challenges’ (2009) 52 Small Wars Journal 34. 75 European Defence Agency, ‘Hybrid Warfare’ (16 July 2015) accessed 7 July 2017. 69

Military CSDP operations 129 Of course, the perennial problem for the EU when it conceives of new strategic visions is capabilities (see Chapter 8 in this volume). It is all very well to talk about a potential EU maritime role in the Asia-Pacific but this requires a serious commitment to pooling existing, and (even) developing new, defence capabilities. Although many European states have increased their defence spending in light of the multiple threats on Europe’s borders,76 European forces are increasingly stretched because of responsibilities related to NATO deterrence in Eastern Europe and coalition operations in places such as Iraq and Syria. In a number of countries the armed forces are also undertaking homeland security tasks. CSDP military operations are therefore just one type of tasking that can be handed to forces in individual European countries. European states have but a single set of forces after all, although any cursory glance at the footprint of CSDP operations since the policy’s operational inception in 2003 reveals that there is an emphasis on civilian rather than military operations. This is, of course, not to make the argument that more military operations are required to justify CSDP – that would be absurd – but rather that there is an intimate relationship between strategic objectives and expectations and capability development. Recent initiatives such as the European Defence Fund (EDIF)77 and the Co-ordinated Annual Review on Defence (CARD)78 may in time help with European military capability development, but there remains some way to go before the EU turns what the EU Global Strategy sees as a need to move from a shared vision to common action. In this respect, it will be interesting to see what role Permanent Structured Cooperation (PESCO) could play in enhancing the EU’s military effectiveness. Following the European Council’s launch of PESCO in December 2017,79 this is no longer just a theoretical question. Indeed, in moving forward with PESCO there will be a debate about what such cooperation should be for. One of the perennial issues confronting PESCO has been to agree on what (capability and industrial) projects or (operational) areas to focus on. All one can be certain of is that PESCO is a legal framework that should lead to binding commitments on defence. While PESCO could foreseeably ameliorate some of the financial constraints of EU military operations by encouraging Member States to develop a more efficient funding line for operations,80 structured 76 J Bund, D Fiott, T Tardy and Z Stanley-Lockman, EUISS Yearbook of European Security 2017 (EU Institute for Security Studies 2017) 97. 77 On 30 November 2016 the European Commission unveiled its ‘European Defence Action Plan’. The idea was to create a European Defence Fund. The fund would be divided between defence research investment (directly supported by the EU) and joint capability development projects (based on pooled investment by willing EU Member States). 78 Contained in the Council conclusions of 14 November 2016 is the idea to have a regular – albeit voluntary – common review of defence planning, defence budgets and capability plans at the ministerial level within the European Defence Agency. The idea is to ensure greater ex ante and ex post synchronization of EU Member State defence spending and capability development plans. 79 Council Decision (CFSP) 2017/2315 of 11 December 2017 establishing permanent structured cooperation (PESCO) and determining the list of participating Member States [2017] OJ L331/57. 80 A Bakker, M Drent and D Zandee, ‘European Defence Core Groups: The Why, What and How of Permanent Structured Cooperation’ (Clingendael Policy Brief, November 2016) 2.

130 Research handbook on the EU’s common foreign and security policy cooperation cannot realistically overcome many of the politico-strategic issues discussed at the beginning of this chapter.

5. CONCLUSION This chapter began with the task of analysing the intersection of the legal and operational parameters in which military operations under the CSDP are deployed. Accordingly, this chapter has focused on three broad challenges for CSDP military operations. First, the chapter focused on the interplay between legal parameters and operational needs/resources when CSDP military operations are deployed. Here, the chapter drew on the experiences that have emerged since the deployment of Operation Sophia. It was shown how, although the operation is designed to debilitate smuggling and human trafficking networks, the strategic landscape in the Mediterranean has led to tactical constraints and to questions about capacity in dealing with a range of – non-forceful – security challenges. In this regard, legitimate questions about the strategic rationale for the operation have arisen and on this basis it has been possible to provide a critique of the ‘comprehensive approach’. Indeed, the case of Operation Sophia clearly shows that there are limitations on how far the EU can draw on lessons learned from other military operations when the politico-strategic circumstances are unique to each deployment. Second, the chapter analysed the interaction between operational and development imperatives when the EU deploys certain types of military operations in third countries. Drawing on the experiences of EUTMs to countries such as the Central African Republic, Mali and Somalia, the chapter showed how any ‘train and equip’ operation must navigate the delicate line between security capacity-building and humanitarian/ development principles. Indeed, by looking specifically at the issue of how to fund EUTM exercises, this chapter has shown how tactical necessity – paying for the equipment that forces in third countries require in order to train – meets legal and political realities, such as restrictions on the use of EU funds for military purposes. Such a dilemma has arisen because of the shifting nature of the EU’s military engagement in third countries. In recent years less emphasis has been placed on military deployments for peacekeeping or peacemaking purposes and more on security sector reform and capacity-building. Yet, the less the EU deploys for traditional military deployments, the more the EU will have to craft innovative responses to how it uses development and military tools together. Third, the chapter explained how geopolitical and strategic shifts directly weigh on the rationale and form of EU institutions involved in the deployment of CSDP military operations. The examples of France’s invocation of Article 42(7) and the UK’s decision to leave the EU have shown how institutions are responsive to major political events, especially when they have a direct or indirect bearing on the CSDP. The chapter showed that there still exists a delicate relationship between the EU Member States and EU institutions as providers of security and defence. In the case of the invocation of the mutual assistance clause, despite the fact that EU institutions were not formally included in the call to provide assistance it soon became clear that these institutions would bring added value to Member State efforts. In the case of the UK’s

Military CSDP operations 131 decision to leave the EU, once forbidden initiatives re-emerged with renewed vigour and the EU is now on course to establish a single command and control centre for some of its military operations. Time will tell how far these various initiatives could enhance CSDP military operations. What is apparent is that CSDP military operations do not occur in a political or strategic vacuum. Every military strategist will be familiar with Clausewitz’s term ‘friction’ – the term describes those contingencies that emerge in the battlefield or back home that directly affect the commanders’ ability to wage a successful campaign. In an EU context, ‘friction’ not only relates to tactical challenges such as the need to augment operational objectives or having to fend off harsh weather conditions during operations. The very fact that the EU embodies both Member States and EU institutions means the chances of new and challenging forms of friction emerging is relatively high. The future development of CSDP military operations will occur in a context in which the security landscape will arguably be more demanding and where the EU will need to continue to assess how it financially supports these operations. Of course, layered on top of these challenges are the mores and needs of individual Member States. As the cases that relate to France and the UK in this chapter indicate, CSDP military operations will continue to be largely shaped by intergovernmental dynamics.

7. Responsibility and liability for CSDP operations Joni Heliskoski*

1. INTRODUCTION: THE SCOPE, PURPOSES AND CONCEPTS This chapter addresses questions of responsibility and liability arising in the context of civilian and military crisis management operations conducted within the framework of the Common Security and Defence Policy (CSDP).1 The specific set of legal problems relating to questions of responsibility or liability for such operations stems from their nature as an instance of multi-level governance involving both the European Union and its Member States and, possibly, third states and/or international organizations. While the launch and conduct of a CSDP operation is always based on a decision taken by the EU Council pursuant to the Treaty on European Union (TEU), the operations are, to a considerable degree, carried out with resources provided by the Member States.2 In some cases, third states may also provide personnel to an operation.3 The basis for the authorization of an operation may be found in a resolution of the UN Security Council and sometimes an operation may be conducted having recourse to assets provided by NATO. Hence the specific set of legal problems relating to the topic of responsibility or liability in this context. This brief introduction demonstrates that the present topic not only covers a multiplicity of different actors, but also necessarily involves several different legal orders. At the very least, it stands, so to speak, at the tri-frontier of public international law, EU law and the domestic law of the Member States. These various legal orders, however, intertwine in the sense that a substantive rule or principle of one legal order may be recognized by or applied within another.4 Given this state of affairs, it would * The author is grateful to Frederik Naert for comments and suggestions on an earlier draft. The usual disclaimer applies. 1 See esp. F Naert, ‘The International Responsibility of the Union in the Context of Its CSDP Operations’ in P Koutrakos and M Evans (eds), The International Responsibility of the European Union (Hart 2013) and F Naert, ‘Shared Responsibility in the Framework of the EU’s CSDP Operations’ in A Nollkaemper and I Plakokefalos (eds), The Practice of Shared Responsibility in International Law, Vol. III (CUP 2017). 2 The standard legal bases for establishing an operation are Articles 42(4) and 43(2) TEU. 3 As a rule, the participation of third states in CSDP operations or missions is organized through the conclusion of an agreement between the EU and the third state concerned. See, e.g., the Agreement between the European Union and the Swiss Confederation on the participation of the Swiss Confederation in the European Union military mission to contribute to the training of the Malian Armed Forces (EUTM Mali) [2014] OJ L151/18. 4 By way of illustration, reference could be made to the case law of the Court of Justice of the European Union (CJEU) recognizing that international law is binding on the institutions as a matter of EU law. See e.g. Case C-366/10 Air Transport Association of America and Others [2011] ECLI:EU:C:2011:864, para 101.

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Responsibility and liability for CSDP operations 133 not seem appropriate to seek to address the substantive law of each of the above systems of law in isolation from one another. Rather, it may be more appropriate to look at various different jurisdictions and to seek to map out how they have dealt with questions of responsibility or liability, whatever the origin of the substantive law they are deemed to have applied in a particular context. Accordingly, the structure of this chapter is based on the notion of jurisdiction, beginning with the public international law jurisdiction (Section 2), followed by EU law jurisdiction (Section 3) and concluding with domestic law jurisdiction of the Member States (Section 4). The conclusions from these different approaches will then be brought together and examined by way of a concluding assessment (Section 5). The following introductory remarks are needed. First, for reasons of space, no systematic account will be provided of the legal framework of CSDP operations, let alone a description of the particular features of the individual operations established in practice.5 Secondly, the issue concerning the limits of jurisdiction of the CJEU in the field of the CFSP is specifically covered by another chapter in the volume and therefore will not be addressed in depth by the present chapter.6 Finally, a terminological issue: in accordance with the standard practice, the term ‘responsibility’ is mainly used in the context of rules and principles of public international law, while, for the purposes of EU law as well as the domestic law of the Member States, reference is made to the notion of ‘liability’.

2. PUBLIC INTERNATIONAL LAW JURISDICTION 2.1 The Challenge of Defining the Substantive Law on the Attribution of Conduct Under the orthodox position of general international law, there are two standard elements of an internationally wrongful act capable of entailing the international responsibility of a state or an international organization: first, the conduct concerned must be attributable to the given state or international organization and, secondly, that conduct must constitute a breach of an international obligation of that state or international organization.7 In the context of the EU, including the conduct of the Union’s CSDP operations, it is the question of attribution of conduct to either the EU or one or more of its Member States that has become the centre of attention of the academic scholarship on the matter. In particular, the discussion has focused on 5 See e.g. P Koutrakos, The EU Common Security and Defence Policy (OUP 2013) 64–68 and chapters 5 and 6. See also https://eeas.europa.eu/headquarters/headquarters-homepage/area/ security-and-defence_en. 6 See Chapter 4 in this volume. 7 See Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, adopted by the International Law Commission at its 53rd session in 2001 and submitted to the General Assembly (UN Doc. A/56/10) and Draft Articles on the Responsibility of International Organizations, with commentaries, adopted by the International Law Commission at its 63rd session in 2011 and submitted to the General Assembly (UN Doc. A/66/10) (hereafter ‘the DARIO’).

134 Research handbook on the EU’s common foreign and security policy whether the test of ‘effective control’ exercised by an international organization over the conduct of an organ of state placed at the disposal of that organization8 adequately reflects the specificities of the EU in that regard, or whether CSDP operations should rather be conceived of as de jure or de facto organs of the EU.9 In the view of this author no conclusive appraisal of the above question may be given by way of a deduction from general principles of public international law as described, most notably, in the DARIO or the case law of the European Court of Human Rights.10 Indeed, Draft Article 64 of the DARIO (‘Lex specialis’) recognizes that the Draft Articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act are governed by ‘special rules of international law’, the commentary drawing specific attention to the possibility of the situation of the EU being subject to such ‘special rule’.11 Moreover, as there exists, for the time being, virtually no international dispute settlement practice regarding international responsibility of the EU and its Member States in the context of conduct of CSDP operations,12 one could argue until the Greek calends about the possible features of an appropriate rule of attribution applicable to the Union and its Member States. Therefore, as any attempt to approach the matter on the basis of general principles of public international law would necessarily remain speculative, there appears to be no good reason for taking that debate any further at this stage. At most, one could make some observations on the state of the public international law aspects of responsibility on the basis of the more recent case law of the CJEU concerning the question of attribution under EU law. On the assumption that this case law qualifies as being indicative of the ‘rules of the organization’ envisaged in the DARIO, one could possibly attempt to proceed with the definition of an international law rule of attribution applicable to CSDP operations or missions. This would, however, need to wait until the concluding observations and assessment of the chapter. The realm of public international law governing the international responsibility of the EU and its Member States is not exhausted by the above considerations. At the level of public international law, the EU has entered into contractual commitments aimed at governing, inter alia, the question of third-party claims arising in the context of CSDP operations or missions in agreements concluded between the EU and a given host state on the status of forces (hereafter ‘SOFAs’) or mission (‘SOMAs’). While the question 8

Established by Draft Art. 7 of the DARIO as the central criterion for the conduct concerned being attributable to the organization in question. 9 See Draft Art. 6 of the DARIO and, for scholarly discussion of the issue, esp. A Sari and RA Wessel, ‘International Responsibility for EU Military Operations: Finding the EU’s Place in the Global Accountability Regime’ in B Van Vooren, S Blockmans and J Wouters (eds), The Legal Dimension of Global Governance: What Role for the EU? (OUP 2013) and PJ Kuijper and E Paasivirta, ‘EU International Responsibility and its Attribution: From the Inside Looking Out’ in P Koutrakos and M Evans (eds), The International Responsibility of the European Union (Hart 2013). 10 See Behrami v France and Saramati v France, Germany and Norway (2007) 45 EHRR SE10; Al-Jedda v United Kingdom (2011) 53 EHRR 23. 11 See para 2 of the commentary to Draft Art. 64. 12 The absence of such practice is noted most recently in Naert, ‘Shared Responsibility in the Framework of the EU’s CSDP Operations’ (n 1) 689.

Responsibility and liability for CSDP operations 135 of substantive law governing the question of responsibility may have to be put aside, at least for the time being, for the reasons set out above, an account of the relevant provisions of the SOFAs and SOMAs could nonetheless contribute to a more realistic understanding of the mechanisms through which claims arising from the conduct of CSDP operations may be resolved in practice.13 2.2 The Regime of Responsibility or Liability under EU-SOFAs and EU-SOMAs The purpose of SOFAs and SOMAs is to define the legal position of military forces or civilian personnel deployed by one or more states or by an international organization in the territory of another state with the consent of the latter. In respect of most CSDP operations and missions, the EU has either concluded SOFAs or SOMAs with the third states concerned or extended pre-existing status arrangements to cover EU operations.14 While no comprehensive account of the practice may be provided in the present context,15 the aspects of the SOFAs and SOMAs aimed at governing the question of international responsibility of the EU and its Member States clearly merit attention in the present context. In this respect, the SOFAs and SOMAs operate essentially through the following logic: on the one hand, they exempt the personnel of an operation or a mission from the jurisdiction of the host state through privileges and immunities granted by the latter and, on the other hand, they create alternative procedures by means of which private claimants may seek compensation for acts or omissions attributable to the operation or mission. While there is some diversity in the arrangements in place for various CSDP operations or missions, the principal features of the arrangements governing the question of responsibility or liability may be described through the generic model agreements (hereafter referred to as ‘Model SOFA’ and ‘Model SOMA’, respectively) which nowadays constitute the basis for negotiating SOFAs and SOMAs for individual crisis management operations.16 In respect of the immunity of the personnel from local jurisdiction, there is a distinction between criminal jurisdiction on the one hand and civil and administrative jurisdiction on the other. While the former applies ‘under all circumstances’,17 the latter only applies to ‘words spoken or written and all acts performed … in the exercise of their official functions’, together with a procedure for determining whether or not a given act had been performed in the exercise of the official functions of the 13 A similar approach is followed in respect of settlement of claims relating to military operations in D Fleck (ed.), The Handbook of the Law of Visiting Forces (OUP 2001) 159–186. 14 In the case of participation of third states in CSDP operations or missions the SOFAs and SOMAs are made applicable to the personnel contributed to a given operation or mission by a third state by virtue of an agreement concluded between the EU and the third state concerned. See e.g. Art. 2(1) of the Agreement between the European Union and the Swiss Confederation on the participation of the Swiss Confederation in EUTM Mali (n 3). 15 For a treatment of the practice up to 2007, see A Sari, ‘Status of Forces and Status of Mission Agreements under the ESDP: The EU’s Evolving Practice’ (2008) European Journal of International Law 67. 16 For the EU Model SOFA, see Council document 11894/07 (20 July 2007) and the EU Model SOMA, Council document 17141/08 (15 December 2008). 17 See Art. 6(3) of the EU Model SOFA and Art. 6(4) of the EU Model SOMA.

136 Research handbook on the EU’s common foreign and security policy personnel.18 Regarding the arrangement concerning the treatment of claims, both the Model SOFA and the Model SOMA exclude the liability of the personnel for ‘any damage to or loss of civilian or government property which is related to operational necessities or caused by activities in connection with civil disturbances or the protection of the [EU force or mission]’.19 For other claims for damage to, or loss of, civilian or government property, and for any claims for death of, or injury to, persons as well as claims for damage to, or loss of property of the EU force or mission, the Model SOFA and the Model SOMA put in place a three-step settlement procedure as follows. In the first instance, these claims are forwarded to the EU force or mission via the competent authorities of the host state, with regard to claims brought by a legal or natural person from the host state, and to the competent authorities of the host state, with regard to claims brought by the EU force or mission. Where no amicable settlement can be found, the claim shall be submitted to a claims commission composed on an equal basis of representatives of the EU force or mission and representatives of the host state. Settlement of claims shall be reached by common agreement. Finally, where no settlement can be reached within the claims commission, the dispute shall be settled by diplomatic means between the host state and EU representatives for claims up to and including EUR 40,000. For claims exceeding that amount, the dispute shall be submitted to an arbitration tribunal,20 whose decisions shall be binding. The primary objective of the above provisions of the SOFAs and SOMAs is to bring about an amicable settlement of claims through the internal mechanisms of the CSDP operation.21 In the light of the existing practice, it appears that this objective has been largely achieved: virtually all claims lodged under SOFAs and SOMAs in the context of CSDP operations are resolved by means of amicable settlement.22 18

Art. 6(4) of the EU Model SOFA and Art. 6(5) of the EU Model SOMA. Art. 15(1) of the EU Model SOFA and Art. 16(1) of the EU Model SOMA. 20 The arbitration tribunal shall be composed of three arbitrators, one being appointed by the host state, one being appointed by the EU force or mission, and the third being appointed jointly by the host state and the EU force or mission. Where one of the parties does not appoint an arbitrator within two months or where no agreement can be found between the host state and the EU force or mission on the appointment of the third arbitrator, the arbitrator in question shall be appointed by the President of the CJEU. The EU force or mission and administrative authorities of the host state shall conclude an administrative arrangement in order to determine the terms of reference of the claims commission and the arbitration tribunal, the procedure applicable within these bodies, and the conditions under which claims are to be lodged. 21 Sari (n 15) 95. 22 Email of 27 April 2016 from E Chaboureau, Legal Adviser, Legal Affairs Division, European External Action Service. Naert, ‘Shared Responsibility in the Framework of the EU’s CSDP Operations’, above n 1, reports that ‘no claims commission or arbitral tribunal has actually been set up, with the possible exception of Althea and two arbitrations in relation to staff in a civilian mission’. According to the same author, ‘most claims have been settled amicably [and] … rather few claims have been brought at all’ (689, footnotes omitted). He notes that Althea (EU military operation in Bosnia and Herzegovina, established by Council Joint Action 2004/570/CFSP [2004] OJ L252/10), applies the SOFA that applied to NATO’s Implementation Force (IFOR) and Stabilisation Force (SFOR) operations. 19

Responsibility and liability for CSDP operations 137 In the rather unlikely event that no amicable settlement of a claim is achieved, which may then give rise to the question as to whom – the operation or mission concerned, the ‘European Union’ or a Member State – a given conduct (and, as a corollary, the international responsibility) is to be attributed, considerations of general public international law could be supplemented by the following observations that are more specific to the situation of the EU and its Member States. Notwithstanding the fact that individual CSDP operations or missions do not possess international legal personality of their own,23 the above standard provisions of the Model SOFA and Model SOMA on claims are designed in a way that identifies the given ‘EU force’ or ‘EU mission’ – that is, an entity the legal basis of which is the TEU – as the ‘party’ to the procedure of dispute settlement. In other words, there are no cases where a ‘Member State’ (or ‘Member States’) would play any role in the establishment of responsibility or liability under a SOFA or a SOMA. Indeed, all of the status agreements relating to CSDP operations or missions have been concluded in the name of the ‘European Union’ without the participation of the Member States in their individual capacity. Therefore, unless substantial grounds to the contrary could be identified from the corpus of general international law of responsibility, the design of the SOFAs and SOMAs would appear to warrant, if not a conclusion, a presumption that responsibility under public international law for the conduct of CSDP operation or missions is borne by the EU in its own right rather than by the Member States.

3. EUROPEAN UNION JURISDICTION 3.1 On the Concepts of Attribution, Representation and Jurisdiction As regards EU law, there are two principal branches governing the question of liability: first, the contractual and non-contractual liability of the Union under the first and second paragraphs of Article 340 TFEU; and secondly, the liability of a Member State for breaches of EU law under the case law of the Court in Francovich24 and Brasserie du Pêcheur/Factortame,25 as further defined in subsequent cases.26 As far as the discharge of liability is concerned, the above two branches fall, in principle, within two distinct realms of jurisdiction. Under Articles 268 and 272 TFEU it is the CJEU that has jurisdiction in disputes relating to compensation for damage arising under the contractual and non-contractual liability of the Union, as provided for in the first and second paragraphs of Article 340 TFEU.27 Secondly, as regards the liability of a 23 It should, however, be noted that civilian CSDP missions now have a legal capacity in EU law. See further Section 3.3 below. 24 Joined Cases C-6/90 and C-9/90 Francovich and Bonifaci v Italy ECLI:EU:C:1991:42. 25 Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur v Bundesrepublik Deutschland and The Queen/Secretary of State for Transport, ex parte Factortame and Others ECLI:EU: C:1996:79. 26 See P Aalto, Public Liability in EU Law – Brasserie, Bergaderm and Beyond (Hart 2011). 27 In light of Art. 274 TFEU it cannot be ruled out that proceedings might be brought against the EU or its bodies, offices or agencies before domestic courts of a Member State.

138 Research handbook on the EU’s common foreign and security policy Member State for breaches of EU law, the relevant remedies exist before the domestic courts of the Member State concerned.28 This section will address the first branch while the second one, together with the question of the liability of a Member State under domestic law, will be dealt with in Section 4 below. Before embarking on a more detailed analysis of the liability of the EU under Article 340 TFEU, a few important conceptual issues will first have to be clarified. To begin with, it follows both from the combined reading of Articles 268, 272 and 340 TFEU and from the Court’s case law that the Court has no jurisdiction to rule on liability arising from the unlawfulness of conduct by a Member State; therefore, a basic precondition for the jurisdiction of the Court to rule on the liability of the Union is the attribution of the conduct concerned to the EU.29 Secondly, once the relevant conduct has adequately been attributed to the Union, it needs to be established whether the action for damages has been brought against the correct defendant.30 Finally, it will have to be ascertained that the Court’s jurisdiction to examine the action is not affected by the limitations of its jurisdiction set out in paragraph 1 of Article 24 TEU and the first paragraph of Article 275 TFEU. While a more general treatment of each of the above issues is beyond the scope of this chapter, they will be addressed in light of the recent case law specifically concerning the liability of the Union for CSDP operations.31 3.2 The Attribution of Conduct to the EU As already noted, the CJEU has no jurisdiction to rule on an action concerning liability arising from the unlawfulness of conduct by a Member State. Therefore, the precondition for the establishment of liability of the EU under Article 340 TFEU is the attribution of the given conduct to the Union. In that regard, a distinction should be drawn between, on the one hand, contractual liability of the Union governed by Article 272 and the first paragraph of Article 340 TFEU and, on the other hand, the non-contractual liability falling within the scope of Article 268 and the second paragraph of Article 340 TFEU. As far as the contractual liability of the Union is concerned – that is, liability arising out of a contract entered into ‘by or on behalf of the Union’ – it suffices to point out that under Article 272 TFEU the jurisdiction of the Court may only be based upon an arbitration clause contained in such a contract. In the absence of an arbitration clause, 28

Unless jurisdiction of the CJEU is excluded by virtue of Art. 24(1) second subparagraph TEU and Art. 275(1) TFEU, the domestic courts of Member States exercise their jurisdiction subject to their obligations deriving from Art. 267 TFEU. See Case C-72/15 Rosneft ECLI: EU:C:2017:236 and further Chapter 4 in this volume. 29 See e.g. Case C-72/90 Asia Motor France v Commission ECLI:EU:C:1990:230, para 14 and Case T-277/97 Ismeri Europa v Court of Auditors ECLI:EU:T:1999:124, para 49. 30 See e.g. Joined Cases C-63-69/72 Werhahn Hansamuehle and Others v Council ECLI: EU:C:1973:121, para 7. 31 It must be noted, for the sake of clarity, that this chapter does not examine heads of jurisdiction other than Arts 268 and 272 TFEU and, in respect of the question of jurisdiction of the CJEU in the context of proceedings brought before domestic courts of Member States, Art. 267 TFEU. In particular, issues specific to actions for annulment (Art. 263 TFEU) are excluded.

Responsibility and liability for CSDP operations 139 the Court cannot adjudicate on what in reality is an action for the performance of a contract entered into by the Union as to do so would be to extend its jurisdiction beyond the limits imposed by Article 274 TFEU – a provision specifically giving national courts or tribunals of the Member States general jurisdiction over disputes to which the Union is a party.32 In the context of civilian CSDP missions, an arbitral clause granting the Court jurisdiction on the basis of Article 272 TFEU may be contained, for instance, in an employment contract concluded between a mission and a member of its personnel employed on a contractual basis.33 In the case of operations with military or defence implications – the operating expenditure of which are as a rule charged to the budgets of Member States34 – contractual liability of the Union based on Article 272 TFEU and on the first paragraph of Article 340 TFEU would, however, appear to be excluded by virtue of the relevant provisions of Council Decision (2015/528/CFSP) of 27 March 2015 establishing a mechanism to administer the financing of the common costs of EU operations having military or defence implications (Athena) and repealing Decision 2011/871/CFSP (hereafter the ‘Athena Decision’).35 According to the Decision, contracts of employment (relating, for example, to staff employed on a contractual basis) are entered into by the operation commander ‘on behalf of Athena’36 and the contractual liability is ‘covered through Athena by the contributing States or third parties’.37 Hence, contractual liability of the EU governed by Articles 272 and 340 TFEU would not seem to arise. As regards, secondly, the non-contractual liability of the Union based on the second paragraph of Article 340 TFEU, the question of attribution of a given conduct to either the Union or one its Member States (or, indeed, a third state participating in an operation or a mission) may prove more problematic. This may be illustrated through H v Commission and Council – an action, first, for annulment of a decision signed by the Chief of Personnel of the European Union Police Mission in Bosnia and Herzegovina (EUPM) and, if needed, of a decision signed by the Head of Mission38 32 See e.g. Case T-186/96 Mutual Aid Administration Services v Commission ECLI:EU: T:1997:149, paras 46–47. 33 See the Order of the General Court of 9 November 2016 in Case T-602/15 Jenkinson v Council and Others ECLI:EU:T:2016:660, para 38. Depending on the contract in question, the situation of a person employed by a mission on a contractual basis may also be governed by the national law of a Member State and fall within the jurisdiction of national courts of the Member State concerned. See e.g. Case T-410/13 Burim Bitigi and Others v Commission ECLI:EU: T:2014:871. 34 According to Art. 41(2), first subparagraph TEU, ‘[o]perating expenditure to which the implementation of this Chapter [on the CFPS] gives rise shall also be charged to the Union budget, except for such expenditure arising from operations having military or defence implications and cases where the Council acting unanimously decides otherwise’. 35 [2015] OJ L84/39. 36 See Art. 8(2)(b), Annex II and para 1.2(e) of the Athena Decision. 37 See Art. 44(3) of the Athena Decision. Art. 3 of the Decision provides that ‘[w]ith a view to the administrative management of the financing of Union operations with military or defence implications, Athena shall have the necessary legal capacity, in particular, to hold bank accounts, acquire, hold or dispose of property, enter into contracts and administrative arrangements and be a party to legal proceedings’. 38 Referred to in Art. 6 of Council Decision 2009/906/CFSP of 8 December 2009 on the EUPM in Bosnia and Herzegovina (BiH) [2009] OJ L322/22.

140 Research handbook on the EU’s common foreign and security policy confirming the above decision of the Chief of Personnel, entailing the redeployment of the applicant and, secondly, for damages.39 While in H v Commission and Council the judgments of both the General Court and the Court of Justice mainly focus on the issue of jurisdiction of the Court to rule on the action in the light of the limitations set out in paragraph 1 of Article 24 TEU and Article 275 TFEU, the case is also illustrative of the question whether the measures (of the Head of Mission) in question should be attributed to the Union or to Member State (that is, Italian) authorities. Indeed, starting from a premise that they were attributable to the Union, the applicant argued for the need to recognize the jurisdiction of the CJEU: her argument was that in the absence of such jurisdiction, she would be denied the right to an effective remedy given that the national courts could neither annul those decisions nor order the institutions of the EU to compensate her for the harm that they have caused.40 The General Court, however, dismissed that argument by affirming that the contested decisions could ‘in principle be attributed to the Italian authorities’41 and that, accordingly, ‘the legality of those measures must be reviewed by the Italian court’.42 This conclusion was essentially based on the assessment that, in adopting the decisions in question, the Head of Mission had acted pursuant to the powers delegated to him by the Italian authorities as regards seconded staff as well as on the principle that measures adopted pursuant to delegated powers are normally attributed to the delegating institution. According to the General Court, it was for the Italian courts to review the legality of the contested decision and to rule on possible damages.43 On appeal, Advocate General Wahl, while agreeing with the General Court that it was (in the absence of jurisdiction of the CJEU) for the Italian courts to examine the lawfulness of the contested decisions and to rule on the claim for damages, took a different view on the question of attribution of the decisions in question.44 In his submission, the fact that the contested measure had not been taken on behalf or in the name of a Member State (Italy) but on behalf of the Union was evident given the chain of command of the EUPM as set out in Article 9 of the Decision 2009/906/CFSP:45 while the political control and strategic direction of the mission is exercised by the Political Committee of the Council (PSC) under the responsibility of the Council and the High Representative, the mission is, for the purposes of its actual conduct and day-to-day management, headed by the Civilian Operation Commander at the ‘strategic level’ and by the Head of Mission who exercises command and control ‘at theatre level’. Given that both are appointed, and entrusted with their respective powers, by the Council and/or the PSC, to whom they also report, the Head of Mission, in adopting the contested decisions, had acted as an EU body on the basis of provisions of EU law. Accordingly, the Advocate General concluded the applicant should have brought proceedings against the EU before the national courts, requesting a declaration of 39 Case T-271/10 H v Council ECLI:EU:T:2014:702 and, on appeal, Case C-455/14 P H v Council and Commission ECLI:EU:C:2016:569. 40 Case T-271/10 H v Council (n 39) para 30. 41 ibid, para 50. 42 ibid, para 52. 43 ibid, paras 50–53. 44 Case C-455/14 P H v Council and Commission (n 39), Opinion of AG Wahl. 45 ibid, para 97.

Responsibility and liability for CSDP operations 141 inapplicability of the contested decisions and/or reparation for damages.46 The Court of Justice essentially agreed with the Advocate General on the question of attribution of the contested decisions: having regard to the relevant provisions of Decision 2009/906/ CFSP on the chain of command of the EUPM, the Court concluded, those decisions were ‘imputable’ to the Council.47 It disagreed, however, with both the General Court and the Advocate General on the question of jurisdiction and concluded that the acts in question did not fall within the scope of application of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU and the Court therefore had jurisdiction to rule on the action. It is submitted that the conclusion reached by the Advocate General and the Court of Justice on the question of attribution of the contested decisions is probably a correct one. The claim concerning the redeployment of the applicant should not be conceived as ‘linked to the secondment’ of the staff member concerned, for which the Member State having seconded the applicant would remain responsible under Article 8(2) of Decision 2009/906/CFSP. The contested decisions on the reassignment of the applicant within the EUPM in Bosnia and Herzegovina rather constituted, as the Court put it, ‘acts of staff management whose purpose is the redeployment of members of the mission at theatre level’.48 According to the Decision, such decisions fall within the scope of operational control of the personnel, a power transferred by the national authorities to the Civilian Operation Commander and exercised by the Head of Mission at ‘theatre level’ under the instructions of the Commander. Thus, the redeployment of the applicant constituted an action taken by the Head of Mission in strict compliance with the command and control structure laid down by the act of the Council pursuant to which the mission had been established, that is, Decision 2009/906/CFSP.49 Therefore, the authority exercised by the Head of Mission had not been delegated to him by the Italian authorities but rather by the Council. Another matter is that according to Decision 2009/906/CFSP it is the sending Member State that retains control of the seconded staff outside ‘theatre level’. Therefore, in principle, only the sending Member State is empowered to take acts that affect the conditions of employment of the seconded staff in such a way which may alter the legal situation of that member of staff. 46

ibid, para 99. Case C-455/14 P H v Council and Commission (n 39), para 68 of the judgment. 48 ibid, para 59. As the Advocate General pointed out in para 85 of his opinion, the legal or economic status of the appellant was, in substance, not altered by the decision to relocate her to the regional office of Banja Luka. In particular, neither her occupational grade nor her remuneration was affected by that decision. The appellant had explicitly agreed to serve in a position in the EUPM other than that she had originally applied for. 49 In that regard, see also the judgment of the General Court, to which the case was referred back for the judgment on the substance of the action, in Case T-271/10 RENV, H v Council, ECLI:EU:T:2018:180, paras 57–72. The General Court concluded that, in adopting the contested decisions, the Head of Mission had acted in conformity with Council Decision 2009/906, as complemented by the Operation Plan (OPLAN) of the EUPM and the Guidelines for Command and Control Structure for EU Civilian Operations in Crises Management. An appeal (Case C-413/18 P, H v Council) is currently pending before the Court of Justice. 47

142 Research handbook on the EU’s common foreign and security policy While H v Commission and Council was about attribution, as between the Union and one of its Member States, of conduct in the context of a civilian CSDP mission, another question would be whether the EU could incur non-contractual liability in the sense of the second paragraph of Article 340 TFEU on the basis of conduct related to the CSDP missions having military or defence implications. It has already been pointed out that the administrative expenditure arising from military operations is not charged to the EU budget but to the budgets of the relevant Member States and administered through the mechanisms set out in the Athena Decision.50 Athena is endowed with the legal capacity, inter alia, to ‘be a party to legal proceedings’.51 As far as non-contractual liability is concerned, Article 44(4) of the Decision provides that any damage caused by the operation headquarters, force headquarters and component headquarters of the crisis structure, the composition of which shall be approved by the operation commander, or by their staff in the course of their duties shall be covered through Athena by the contributing states, ‘in accordance with the general principles common to the laws of the Member States and the staff regulations of the forces, applicable in the theatre of operations’. Article 44(5) of the Athena Decision then explicitly rules out (subsidiary) liability of the Union or the Member States (for both contractual and non-contractual liability) for damage caused by the units and departments of the crisis structure, the composition of which shall be approved by the operation commander, or by their staff in the course of their duties. These specific arrangements would appear to indicate that non-contractual liability of the Union under Article 340 TFEU is excluded as far as military operations are concerned. Be that as it may, a puzzling aspect of H v Commission and Council concerns the manner in which the General Court, the Advocate General and the Court of Justice first address the question of the limits of the Court’s jurisdiction in the light of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU and only thereafter consider the issue of attribution of the decision in question to either the Union or the Member State concerned. By so doing they sideline the principle that, logically, the question of attribution always arises before there is a need to consider the scope of the exception to the Court’s jurisdiction in the field of the CFSP. As already noted, this is the case because the CJEU does not, in any event, have jurisdiction to review conduct attributable to a Member State, nor to award damages on the basis of such conduct. 3.3 The Question of the Proper Defendant before the CJEU Once it has been established that a given conduct forming the basis for the alleged contractual or non-contractual liability is attributable to the Union, it will have to be determined against whom the action should be brought before the General Court. As a general rule, where proceedings are brought in respect of its non-contractual liability, the Union is represented before the CJEU by the institution or institutions responsible 50

Under Art. 15(1) of Annex I to the Athena Decision, the mechanism shall bear as ‘common costs’, inter alia, ‘indemnities for damages and costs resulting from claims and legal actions to be paid through Athena’. 51 See Art. 3 of the Athena Decision.

Responsibility and liability for CSDP operations 143 for the matters at the origin of the alleged damage.52 Should the action have been directed against a defendant other than the one deemed to be responsible for the damage, the Court would hold the action inadmissible.53 If, by mistake, a defendant other than the one responsible for the act in question has been identified and if it is clear, in the light of the application, against whom the action ought to have been directed, the Court would order the former to be replaced by the latter.54 A specific question arising in the present context is whether a claim for damages originating in the conduct of a CSDP mission may be brought against the mission or operation concerned in its own right or, alternatively, against one (or several) of the Union’s institutions. In that regard, a distinction should be drawn between, on the one hand, civilian CSDP missions and, on the other hand, operations having military or defence implications. As regards, first, civilian CSDP missions, it now follows from an express provision in their constituent instruments that such missions are endowed with legal personality, including ‘the capacity to … be a party to legal proceedings, as required in order to implement [the] Joint Action [concerned]’.55 Accordingly, it has been confirmed by the General Court that such missions may act as a defendant in legal proceedings before Union courts.56 Therefore, actions aimed at discharging, on the one hand, contractual liability of the Union under Article 272 and the first paragraph of Article 340 TFEU and, on the other hand, non-contractual liability under Article 268 and the second paragraph of Article 340 TFEU, for conduct attributable to a civilian CSDP mission should be directed against the relevant mission, rather than the institution that may have delegated powers to that mission. The position of civilian missions is therefore similar to Union bodies, offices and agencies having legal personality and, as such, capable of incurring contractual and non-contractual liability.57 52

See e.g. Case T-383/00 Beamglow v Parliament and Others ECLI:EU:T:2005:453, para

68. 53

Case T-162/89 Mommer v Parliament ECLI:EU:T:1990:72, paras 19–20. See e.g. the order of the Tribunal of 16 October 2006 in Case T-173/06 Aisne and Nature v Commission ECLI:EU:T:2006:320, paras 17–18 and the order of the General Court of 6 January 2015 in Case T-479/14 Kendrion v European Union ECLI:EU:T:2015:2, para 13. Cf, however, Opinion of AG Lenz in Case C-62/83 Eximo v Commission ECLI:EU:C:1984:197. Indeed, in H v Council and Commission, the Court held that, since the Commission was not involved in the chain of command of the EUPM in Bosnia and Herzegovina, and the contested decisions did not concern the implementation of the EUPM’s budget, those decisions could not be ‘imputed’ to the Commission. Consequently, the action was dismissed as inadmissible in so far as it had been directed against the Commission. See Case C-455/14 P H v Council and Commission (n 39), para 65. 55 See e.g. Art. 15 bis of Council Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO [2008] OJ L340/73, as amended by Council Decision 2014/349/CFSP [2014] OJ L174/42. A similar provision has been introduced into the constituent instruments of other civilian CSDP missions. 56 Order of the General Court of 9 November 2016 in Case T-602/15 Jenkinson v Council and Others (n 33) para 35. 57 The current legal situation is therefore different from the one at issue in Case T-213/12 Elitaliana v Eulex Kosovo ECLI:EU:T:2013:292, and, on appeal, Case C-439/13 P Elitaliana v Eulex Kosovo ECLI:EU:C:2015:753 – a dispute relating to the award of a public service contract 54

144 Research handbook on the EU’s common foreign and security policy As regards, secondly, operations with military or defence implications, no grant of legal personality has been provided. Therefore, any action aimed at discharging contractual or non-contractual liability before the Union courts should in all likelihood be directed at either Athena58 or the Council as the institution which has delegated to the EU Operation Commander and/or EU Force Commander the authority to conduct the operation. Given that military operations are charged to the budgets of the Member States, claims against the Commission would clearly be excluded. Insofar as military operations are concerned, the question of the representation of the Union before Union courts would, in any event, appear as a theoretical one given the limitations of the jurisdiction of the CJEU based on paragraph 1 of Article 24 TEU and Article 275 TFEU.59 Jurisdiction for these claims would in all likelihood fall upon domestic courts of the Member States.60 3.4 Limitation of Jurisdiction of the CJEU in the Field of the CFSP Once it has been established that any given conduct in the course of a CSDP mission or operation is attributable to the Union and once the claim is deemed to have been brought against the correct defendant, it will still have to be confirmed that the Court’s jurisdiction to examine the action is not affected by the limitations of its jurisdiction set out in paragraph 1 of Article 24 TEU61 and the first paragraph of Article 275 TFEU.62 concerning a project involving helicopter support for EULEX Kosovo. The General Court dismissed the action as inadmissible on the ground that Eulex Kosovo did not (at the time) have legal capacity to be a defendant. On appeal, the Court of Justice reached the same conclusion, drawing attention to the fact that, having regard to Arts 8(5) and 16(4) of the Joint Action 2008/124/CFSP, the Head of Mission was, when signing the procurement contract, exercising his powers on the basis of a delegation from and under the supervision and authority of the Commission. Hence, the contested measures being attributable to the Commission as the delegating authority, the action (for annulment and for damages) should have been brought against that institution rather than Eulex Kosovo. 58 See Art. 3 of the Athena Decision. 59 In his opinion of 21 May 2015 in Case C-439/13 P Elitaliana v Eulex Kosovo (n 57), AG Jääskinen pointed out that the award of contracts similar to the one at issue in the case could nonetheless fall outside the jurisdiction of the EU Courts if those contracts relate to military actions (para 60). 60 Naert, ‘Shared Responsibility in the Framework of the EU’s CSDP Operations’ (n 1) 695, reports a judgment of the Brussels Court of First Instance of 27 November 2015, ruling that the court had jurisdiction over a claim against Athena relating to the award of a contract for the EU military operation in the Central African Republic (EUFOR RCA). 61 The final sentence of paragraph 1 of Art. 24 TEU provides that ‘[t]he Court of Justice of the European Union shall not have jurisdiction with respect to these provisions, with the exception of its jurisdiction to monitor compliance with Article 40 of this Treaty and to review the legality of certain decisions as provided for by the second paragraph of Article 275 of the Treaty on the Functioning of the European Union’. 62 According to the first paragraph of art 275 TFEU, ‘[t]he Court of Justice of the European Union shall not have jurisdiction with respect to the provisions relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions’. The second paragraph, however, ‘re-introduces’ the Court’s jurisdiction by providing that ‘[h]owever, the Court shall have jurisdiction to monitor compliance with Article 40 of the Treaty on European

Responsibility and liability for CSDP operations 145 Should the Court’s jurisdiction be excluded on that basis, the liability of the Union cannot be discharged before Union courts.63 A more general analysis of the limitations of the jurisdiction of the CJEU in the field of the CFSP exceeds the scope of the present chapter. It is enough to note that the question concerning the limitations to the jurisdiction of the Court has been treated in two recent judgments specifically concerning the liability of the Union for conduct attributable to the Union in the context of CSDP operations, that is, Elitaliana SpA v Eulex Kosovo64 and H v Council and Commission.65 The jurisdiction aspect of this case law is addressed in another chapter.66

4. DOMESTIC JURISDICTION OF THE MEMBER STATES In some cases, proceedings aimed at discharging liability arising from the conduct of CSDP operations may also fall within the jurisdiction of domestic courts of a Member State.67 While in most cases the defendant before a domestic court would be the Member State concerned, the Member State typically having contributed troops or personnel to an operation, it cannot be ruled out that proceedings before a domestic court might be brought either against the EU in its own right or against bodies, offices or agencies of the Union endowed with a capacity to be a party to legal proceedings.68

Union and to rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 of this Treaty, reviewing the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union’. 63 As the General Court has confirmed in Case T-328/14 Jannatian v Council ECLI: EU:T:2016:86 para 31, ‘a claim seeking compensation for the damage allegedly suffered as a result of the adoption of an act relating to the CFSP falls outside the jurisdiction of the Court’. 64 Case T-213/12 Elitaliana v Eulex Kosovo and, on appeal, Case C-439/13 P Elitaliana v Eulex Kosovo (n 57). 65 Case T-271/10 H v Council and, on appeal, Case C-455/14 P H v Council and Commission (n 39). As regards the Court’s jurisdiction to review CFSP acts post Lisbon, see also Case C-658/11 Parliament v Council ECLI:EU:C:2014:2025, concerning the legality of Council Decision 2011/640/CFSP of 12 July 2011 on the signing and conclusion of the Agreement between the European Union and the Republic of Mauritius on the conditions of transfer of suspected pirates and associated seized property from the European Union-led naval force to the Republic of Mauritius and on the conditions of suspected pirates after transfer [2011] OJ L254/1. 66 See Chapter 4 in this volume. 67 Or, as the case may be, a third state that has provided personnel to a CFSP mission or operation. 68 Proceedings might be brought against civilian CSDP missions or the Athena mechanism, for example.

146 Research handbook on the EU’s common foreign and security policy It follows from Article 274 TFEU69 that the Union does not have immunity before domestic courts of the Member States.70 In relation to questions of contractual liability, the jurisdiction of a domestic court may be based on an arbitration clause contained in a contract of employment between the mission and local or international staff recruited on a contractual basis.71 While the CJEU has, in principle, exclusive jurisdiction to adjudicate actions concerning the Union’s non-contractual liability under Articles 268 TFEU and the second paragraph of Article 340 TFEU,72 it has been recently suggested that – regard being had to the limitations to the jurisdiction of the CJEU in the field of the CFSP73 – Article 274 TFEU could provide an individual with access to domestic courts in those cases where the CFSP is implemented by the EU’s institutions, bodies, offices or agencies in such a way as to be of direct and individual concern to an applicant; those courts could then review the CFSP acts in question as to their compatibility with higher-ranking EU law and, as the case may be, suspend their application in the given case74 and, possibly, award damages.75 In that regard, the state of the law is uncertain given that the Court has not yet had an occasion to rule on the issue76 and given that no proceedings have been brought against the Union before Member State courts aimed at discharging the liability of the Union arising from the conduct of the CFSP in general or CSDP operations in particular. In the submission of the present author, that question is not decided by the Rosneft case: in that judgment, the Court merely confirmed that it also has (an exclusive) jurisdiction under Article 267 TFEU to review the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the TEU.77 The judgment therefore has no bearing on the issue whether or not domestic courts of Member States might be entitled to suspend the application of CFSP acts 69 According to Art. 274 TFEU, ‘[s]ave where jurisdiction is conferred on the Court of Justice of the European Union by the Treaties, disputes to which the Union is a party shall not on that ground be excluded from the jurisdiction of the courts or tribunals of the Member States’. 70 It may observed that the immunity of officials and other servants of the Union from legal proceedings in Member State courts, based on Art. 11 of the Protocol (No. 7) on the privileges and immunities of the European Union [2012] OJ C326/266, has no bearing on the liability of the Union. See Case 5/68 Sayag and others ECLI:EU:C:1968:42. 71 See e.g. the order of the General Court of 30 September 2014 in Case T-410/13 Burim Bitigi and others v Commission and others (n 33). 72 See e.g. K Lenaerts, I Maselis and K Gutman, EU Procedural Law (OUP 2014) 691. 73 See Case T-328/14 Jannatian v Council (n 63), paras 30–32. 74 See the view of AG Kokott in Opinion 2/13 regarding accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms ECLI:EU:C:2014:2475, paras 99–100. 75 See Case C-455/14 P H v Council and Commission (n 39), Opinion of AG Wahl, paras 41–44 and 101–103. 76 Notably, while not contesting the jurisdiction of domestic courts as such, in his Opinion in Case C-72/15 Rosneft (n 28), AG Wathelet, arguing in favour of acknowledging the jurisdiction of the CJEU under Article 267 TFEU in matters of the CFSP, seems to distance himself from the position expressed by AG Kokott in Opinion 2/13. See especially footnote 15 of the Opinion AG Wathelet. 77 Case C-72/15 Rosneft (n 28), paras 77–80.

Responsibility and liability for CSDP operations 147 other than restrictive measures against natural or legal persons, that is, those CFSP acts that do not fall within the jurisdiction of the CJEU or, as the case may be, award damages on the basis of breaches of EU law falling within the scope of the CFSP, as proposed by AG Kokott in Opinion 2/13 and AG Wahl in H v Commission and Council. Another matter is that neither Advocate General articulates in any detail the conditions for, or the implications of, a decision by a domestic court to suspend the operation of a CFSP act without the possibility of referring the question of its validity to the CJEU. What is clear is that the conditions for the suspension of the implementation of an act adopted within the ‘communitarised’ EU policies set out in Zuckerfabrik78 would not apply. Presumably, the suspension of the implementation of a CFSP act would only apply vis-à-vis the applicant in the given case and, in the absence of the jurisdiction of the CJEU, ‘it would then be for the EU institution responsible for the act to draw the necessary inferences from the decision of the national court; by repealing or amending the act whose application vis-à-vis the applicant has been suspended’.79 As far as the liability of a Member State is concerned, that could be based on the principle of liability of a Member State for breaches of EU law. In the field of the CFSP, however, the reliance on the Court’s case law governing such liability might prove challenging, if only in the light of the requirement to establish a breach of a rule of EU law of a kind that is intended to grant rights to individuals.80 Given the inherently inter-governmental nature of CFSP acts, such a prospect would seem merely theoretical and, to the knowledge of the present author, there is no case law on the matter. In a much more realistic scenario, a domestic court of a Member State (or a third state participating in an operation or a mission) could be required to decide on claims aimed at discharging liability incurred in the context of a CSDP operation as a matter of domestic law (or international law applied by such courts). In this regard, relevant claims would fall into two main categories. First, domestic courts of a Member State have (civil, criminal or administrative) jurisdiction in respect of the personnel transferred or seconded to an operation by the Member State concerned.81 In the case of civilian missions, the act establishing a mission usually provides in express terms for the responsibility of the Member State having seconded a member of staff for any claims ‘linked to the secondment’, from or concerning the member of staff, as well as for the responsibility of that state for bringing any action against the seconded person.82 Likewise, responsibility for any disciplinary action or the exercise of criminal jurisdiction rests with the Member State having seconded the member of personnel 78 Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen and Others ECLI: EU:C:1991:65, para 33. 79 Case C-455/14 P H v Council and Commission (n 39), Opinion of AG Wahl, para 103. 80 See e.g. Joined Cases C-6/90 and C-9/90 Francovich and Bonifaci v Italy (n 24), para 40. 81 SOFAs and SOMAs provide that the personnel of an EU force or mission are not exempted from the jurisdiction of the respective sending states. See Art. 6(7) of the EU Model SOFA and Art. 6(8) of the EU Model SOMA. The provisions of the relevant SOFA or SOMA are made applicable to the personnel contributed to a given operation or mission by a third state by virtue of an agreement concluded between the EU and the third state concerned. 82 See e.g. Art. 10(2) of the Council Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo (n 55).

148 Research handbook on the EU’s common foreign and security policy concerned.83 As an example from actual practice, Naert reports of a French soldier who served in the EU military operation in the Republic of Chad and in the Central African Republic (EUFOR Chad/CAR)84 and killed two fellow French soldiers, a UN peacekeeper and a local peasant, and who was prosecuted in France.85 More recently, cases of sexual exploitation and abuse of minors by Georgian troops participating in the EU military operation in the Central African Republic (EUFOR RCA)86 have also been reported87 and investigated.88 Secondly, domestic courts of Member States may also be requested to entertain claims against Member State authorities by third parties alleging to have suffered damage from actions taken in the context of a CSDP operation. While the powers of review of those courts might in certain Member States be circumscribed by doctrines such as ‘non-justiciability’89 or ‘acte de gouvernement’,90 reflecting the principle that certain activities of the government relating to foreign policy remain outside the jurisdiction of courts,91 one finds no evidence of the application of such considerations to acts relating to the day-to-day conduct of CSDP operations of the EU. On the contrary, in a rare instance of domestic case law concerning a third-party action against Member State authorities relating to acts committed by German forces in the context of 83 ibid, Art. 8(6). The Model SOFAs and SOMAs further provide that ‘the competent authorities of a Sending State shall have the right to exercise on the territory of the Host State all the criminal jurisdiction and disciplinary powers conferred on them by the law of the Sending State with regard to … personnel’. 84 See e.g. Council Joint Action 2007/677/CFSP on the European Union military operation in the Republic of Chad and in the Central African Republic [2007] OJ L279/21. 85 Naert, ‘The International Responsibility of the Union in the Context of its CSDP Operations’ (n 1) 323. 86 See Council Decision 2014/73/CFSP on a European Union military operation in the Central African Republic (EUFOR RCA) [2014] OJ L40/59. 87 See press release of the UN High Commissioner for Human Rights (29 January 2016) http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16995. 88 See the report of the UN Secretary General, Special measures for protection from sexual exploitation and abuse: a new approach, UN Doc. A/71/818 (28 February 2017) 63. 89 For the United Kingdom, see e.g. R (Abbasi and Anor) v Secretary of State for Foreign & Commonwealth Affairs and Anor [2002] EWCA Civ 1598, paras 99 and 106. 90 For France, see e.g. Conseil d’Etat (23 juillet 2010, Société Touax, n° 328757), for the holding that ‘les opérations militaires ne sont, par nature, pas susceptibles d’engager la responsabilité de l’Etat, y compris sur le fondement de la rupture de l’égalité devant les charges publiques [i.e.: responsabilité sans faute]; que les préjudices résultant d’opérations ayant ce caractère ne sauraient ainsi ouvrir aux victimes droit à réparation à la charge de l’Etat que sur le fondement de dispositions législatives expresses’. The question, however, is what constitutes a ‘military operation’ in the sense of this case law. As the rapporteur public (equivalent to an Advocate General of the CJEU) held in Société Touax: ‘L’îlot d’irresponsabilité lié à la conduite des opérations militaires nous semble pouvoir, encore aujourd’hui, trouver une justification … à la condition d’user de ce régime avec modération, à la fois dans l’identification des opérations militaires mais aussi dans l’appréciation du lien avec la conduite de ces opérations. C’est dire qu’il convient de s’en tenir à une application stricte du principe d’irresponsabilité à raison des opérations militaires, comme pour tout régime dérogatoire.’ 91 See J Crawford, Brownlie’s Principles of Public International Law (8th edn, OUP 2012) 72ff.

Responsibility and liability for CSDP operations 149 a CSDP military operation, there is no indication of limitations of the above kind to the jurisdiction of the courts in question. The case at hand concerned the review – by, first, the Administrative Court of Cologne92 and, on appeal, the Oberverwaltungsgericht Nordrhein-Westfalen93 – of measures taken by the German authorities in the course of Operation Atalanta,94 involving the capture, detention and transfer of nine suspected pirates of the Somalian nationality to the authorities of Kenya for criminal proceedings and sentencing in March 2009. According to the claimants, the right to a fair trial enshrined in Article 6 of the European Convention on Human Rights had been breached by the contested measures, which did not meet the basic standards of the rule of law relating to the rights of defence, the duration of the procedure and the conditions of detention. In their defence, the German authorities submitted that the proceedings had been brought against the wrong defendant in the light of the fact that both the capture and transfer of the claimants were based on Joint Action 2008/851/CFSP and, as such, attributable to the EU. In respect of the contested measures the German naval forces had not acted in their national capacity but as part of the EUNAVFOR (EU Naval Force) given that the command and control over Operation Atalanta resided with the Union. In relation to the capture and detention of the suspected pirates, it could, according to the Administrative Court, be left open whether the measures concerned should be attributed to either the German or the EU authorities; in any event, there existed no basis in substantive law for their challenge. As regards, however, the transfer of the persons concerned to the Kenyan authorities, the Court admitted the claim, considering that the act of transfer was an act of the German State (‘Akt deutscher Staatgewalt’) attributable to the German authorities.95 Notwithstanding the fact that it was, fundamentally, the EU institutions that had had the command and control of the forces in the operation area, the concrete orders in respect of the transfer of the claimants had been made by the German authorities. First, immediately following the capture of the suspected pirates an inter-ministerial decision-making forum had been created in Germany to examine the further measures concerning the captured individuals. In that context, the transfer of the persons concerned to Germany for trial had been cancelled and replaced by the objective of their surrender to Kenya. That latter objective was then communicated by the Ministry of Defence to the captain of the vessel on board which the suspected pirates were held, together with an order to take a course to Mombasa. In the view of the Court, the German authorities had had the choice to cancel the transfer of the suspects for trial to either Kenya or another third state and to have them put on trial in Germany instead. Even if those authorities might appear also to have taken 92 VG Köln, Urteil vom 11. November 2011, Az. 25 K 4280/09, openJur 2012, 83059, available in German at http://openjur.de/u/451905.html. 93 Oberverwaltungsgericht Nordrhein-Westfalen, Urteil vom 18. September 2014, available in German at http://openjur.de/u/731026.html. 94 Council Joint Action 2008/851/CFSP on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast [2008] OJ L301/33. 95 The central reasoning is at paras 60–61 of the judgment of the Administrative Court.

150 Research handbook on the EU’s common foreign and security policy directions from the EU Operation Commander (EUOPC),96 this would not, according to the Administrative Court, have led to a different conclusion as far as the attribution of the contested measures is concerned since those directions appeared as nothing more than a (subsequent) approval of the decisions previously taken solely by the German authorities. Finally, the central role of the authorities in the transfer was also illustrated by the fact that the preparations for the transfer of the persons concerned with the Kenyan authorities had been undertaken essentially by the embassy of the Federal Republic and not by the representatives of the EU. On appeal, the Oberverwaltungsgericht Nordrhein-Westfalen agreed with the Administrative Court on the question of attribution of the contested measures. While the Oberverwaltungsgericht first addressed at length the question whether the lack of international personality of the Union prior to the entry into force of the Treaty of Lisbon as such precluded the attribution of the contested measures to the Union,97 that circumstance was not, according to the Appeal Court, decisive for the dismissal of the appeal: even on the assumption that the EU had been considered to possess international legal personality at the time, the contested measures were to be attributed to the German authorities in the light of the fact that the transfer of the suspected pirates had been both initiated and implemented solely by those authorities. In that regard, it could also be left open whether the vessel in question had been under the operative command and control of the EU Operational Headquarters (OHG) of the EUNAFOR.98 According to the Appeal Court it had already become clear at the meeting of the inter-ministerial decision-making forum on 4 March 2009 that a transfer of the suspects to Kenya was to be favoured by the German authorities, who then, on the following days, prepared the concrete framework for the transfer together with the Kenyan authorities. While on 6 March 2009 an Exchange of Letters was made between the EU and Kenya with a view to defining the conditions and modalities for the transfer of persons suspected of having committed acts of piracy on the high seas and detained by EUNAFOR,99 there apparently was – in the context of the concrete case – no willingness on the part of the German authorities to involve the Presidency of the Council in the negotiations on the preparation of the transfer of the suspects in question.100 The Appeal Court also placed emphasis on the fact that, within the German inter-ministerial forum, several alternative courses of action (including a criminal trial in Germany) had stood open to the authorities, who had, however, preferred a transfer

96 In this regard, the Court makes reference to the Decision of the EUOPC of 8 March 2009 reading as follows: ‘Decision to transfer to any third country is made by OPCDR [Operation Commander] based on available evidence. OPCDR has made this decision today, 08.03.2009, and approved transfer.’ 97 See paras 80–92 of the judgment. 98 ibid, para 93. 99 [2009] OJ L79/49. 100 Para 94 of the judgment.

Responsibility and liability for CSDP operations 151 of the suspects to Kenya.101 Moreover, there was, according to the Oberverwaltungsgericht, no evidence that an order concerning the transfer had been given by the OHQ:102 on the contrary, the Court agreed with the assessment of the Administrative Court that the Decision of the EUOPC of 8 March 2009 on the ‘approval’ of the transfer could be considered as nothing other than a (subsequent) approval of a decision on the transfer made by the German authorities.103 Finally, even if those authorities had been considered to have acted on the basis of an authorization from Union institutions – that is, Joint Action 2008/851/CFSP – the Appeal Court concluded that it fell to the domestic courts of the Member States to grant legal protection in regard to the measures of those authorities as, in any event, the CJEU would have no jurisdiction over measures falling within the CFSP.104 The judgments of both the Administrative Court and the Appeal Court leave open whether the assessment of the question of attribution would have been different had the German authorities acted upon orders of the OHQ or the EUOPC, or had the input of the EUNAVFOR command structure been greater in some other way. On the one hand, the judgments emphasize that no orders were given by the OHQ. On the other hand, the Appeal Court notes that it would not have made any difference in regard to the question of attribution even if the EU had made an ‘autonomous decision’ on the transfer.105 Be that as it may, the reasoning of both courts appears to be based on the understanding that the implementation of CFSP measures by Member State authorities in any event entails the liability of the Member State in question before a domestic court, irrespective of whether EU institutions might also be held liable as a matter of EU law. Insofar as the Appeal Court in particular is concerned, this conclusion appears to have been motivated by the desire to ensure that adequate legal protection is provided by a court of law, something the CJEU might not be in a position to do in light of the limitations to its jurisdiction in the field of the CFSP. As to the substance, both the Administrative Court and the Oberverwaltungsgericht held that the surrender of the suspected pirates to Kenya had been unlawful, including in light of the fact that the conditions of detention in the said country amounted to inhuman or degrading treatment in the sense of Article 3 of the European Convention.

5. CONCLUSIONS AND EVALUATION Any attempt to assess the question of responsibility or (for the purposes of EU law as well as domestic law of the Member States) liability in the context of CSDP operations is still marked by the fact that the relevant case law and other judicial practice remain rather limited. As regards international responsibility and non-contractual liability 101

ibid, para 95. As the Appeal Court put it at para 140, ‘die Übergabe was jedenfalls zwangsläufige Folge ihrer Entscheidung, ihrer Vorrecht auf eine Strafverfolgung in Deutschland nicht wahrzunehmen’. 102 ibid, para 109. 103 Ibid, para 111. 104 ibid, paras 115–119. 105 ibid, para 140.

152 Research handbook on the EU’s common foreign and security policy vis-à-vis third parties in particular, the claims are as a rule settled amicably through ex gratia payments. So far, relatively few cases have ended up either before a claims commission, the CJEU (Elitaliana v Council and Commission; H v Council and Commission as well as a number of staff cases) or domestic courts of a Member State (the German case concerning the surrender of pirates). In spite of the limited scope of the existing practice, some conclusions on the question of the distribution of responsibility or liability as between the EU and its Member States may nonetheless be drawn from both the institutional practice of the CSDP and the case law of the European and domestic courts. First, having regard to the chain of command designed for CSDP operations, running from the level of the Council right down to the Head of Mission or the Operation Commander, the CJEU is inclined to treat the conduct of such operation as being attributable to the EU in its own right (H v Commission and Council). Coupled with the Court’s narrow understanding of the limits of its jurisdiction in the field of the CFSP (Elitaliana; H v Commission and Council; Rosneft), the case law suggests that there would be at least some legal remedies available before the EU Courts even in matters relating to operational activity of the CFSP. Secondly, for those cases where no remedies before the CJEU exist (either as a consequence of the attribution of a given conduct to a Member State or in view of the limitations of the Court’s jurisdiction specific to the CFSP), the Court seems to acknowledge that remedies may still exist before the domestic courts of the Member States. The German practice provides an illustration of how the liability of a Member State for an action related to the conduct of a CFSP operation may effectively be charged before domestic courts. In that regard, one should also recall the possibility of an individual bringing a case against the given Member State before the ECHR. As regards, thirdly, the question of an appropriate rule of attribution under public international law in general and the DARIO of the International Law Commission in particular, the manner in which that question is treated in the case law of the CJEU appears to place less weight upon the actual command and control over a given conduct, the focus being more on the formal structure of the chain of command laid down in generalized fashion for all CSDP operations. This, it is submitted, could be interpreted as speaking for the treatment of such operations as de facto organs of the EU. While the question of attribution of conduct as between the EU and its Member States would seem to remain relevant at the level of public international law, if only in light of the fact that CSDP operations do not possess international legal personality of their own (and, as a corollary, may not be regarded as being internationally responsible in their own right), the same may not be true for the level of EU law or the domestic laws of the Member States. This is the fourth concluding point: this chapter suggests that, within those legal orders, there may be other entities capable of charging the requisite liability. Indeed, civilian CSDP missions have recently been endowed with legal personality of their own, including the capacity to be a party to legal proceedings before courts of law. In relation to military operations, claims for compensation may be directed against the Athena mechanism in its own right, possibly before a domestic court. Consequently, redress may be obtained without necessarily having to address the

Responsibility and liability for CSDP operations 153 question of whether any given conduct undertaken within the framework of a CSDP operation should, in the final analysis, be attributed to the EU or (one or more of) the Member States.

8. Capabilities and CSDP: resourcing political will or paper armies Simon Duke

1. INTRODUCTION AND TERMINOLOGY The term ‘capabilities’ is used variously in CSDP to denote resources that can be used collectively to attain a given goal. Resources, in turn, can be considered a reference to physical assets, which may take the form of either equipment or trained personnel. There is, however, no generally agreed definition for capabilities, resources or other associated terms like competences. In a useful discussion on terminology Galavan defines capabilities as ‘the capacity to deploy a combination of resources through collective organizational routines to achieve goals’. Resources, in this context, are ‘tangible and intangible assets under the effective control of the organization’.1 There is the risk that generic definitions of capabilities may lead to rather static ideas or bean counter exercises to establish physical assets, whereas it should be considered to be a dynamic concept that includes not only identifiable and quantifiable ‘assets’, but also the ability to improve the use of assets (and thus upgrade them in a sense) through training and the incorporation of lessons learned from field use. A further definitional quandary arises in the case of CSDP since the capabilities employed for missions or operations are, with a few minor exceptions, not those of the EU but those of the Member States.2 Capabilities in this context cannot therefore be divorced from the idea of competences and must be understood as those capabilities that might be available to CSDP. Any discussion of ‘capabilities’ is therefore notional in the sense that assumptions have to be made about their availability although, in reality, they may not be. The Member States are nevertheless to operate in accordance with the principle of a ‘single set of forces’ which can be used nationally or in multilateral frameworks.3 This implies that duplications should be avoided within the ‘single set of forces’ although there is ample evidence of duplications of systems across the EU’s members.4 It is this essential uncertainty that has led some to advocate more predictable forms of ‘on-call’ capabilities or even EU-owned resources. There is nevertheless an inherent 1 RJ Galavan, ‘Understanding Resources, Competences, and Capabilities in EU Common Security and Defence Policy’ (2015) IECEU Working Paper at . 2 Generally, the EU has used the term ‘mission’ for civilian activities and ‘operations’ for military ones. 3 Council of the European Union, ‘Implementation Plan on Security and Defence’ (14 November 2016) 1, 4. 4 European Commission, ‘Reflection Paper on the Future of European Defence’ (7 June 2017) 9.

154

Capabilities and CSDP 155 ambiguity about when the EU should act as the EU and the extent to which subsidiarity should apply to crisis scenarios. In particular, the presence of mindsets that are conditioned to think in terms of national security and defence, as well as legal barriers and conditions applying to the use of force, have proven significant impediments since it is often only after resource sufficiency at the national level is satisfied that thoughts (might) turn to the provision of collective capabilities at the European level. This is of course an imperfect state of affairs since it leads, in circular motion, back to the very surpluses, duplication and shortcomings that CSDP has been battling since inception. It remains to be seen whether the newly established European Defence Fund, which offers up to €5.5 billion to facilitate research, as well as development and acquisition, will attain its core goal of helping the Member States to ‘spend money more efficiently, reduce duplications in spending, and get better value for money’.5 The existence of high levels of duplication of assets when it comes to larger-scale and more expensive items, like destroyers or fighter aircraft, should not be read as an indictment of the more recent initiatives since the development of capabilities, or changes to existing ones, demands a longer-term perspective of a decade or more. This, typically, represents the horizon for the development and production of the higherticket capabilities. Given the relatively recent development of CSDP, many of the capabilities shortfalls, to use the jargon, are still with us. This applies in particular to the military aspects of CSDP, whereas capabilities in the civilian realm tend to put more emphasis on training, common standards and dynamism (see Chapter 5 in this volume). The presence, or otherwise, of capabilities has been one of the fundamental concerns of CSDP, even avant la lettre. For instance, it was an integral part of Hill’s ‘capabilities-expectations gap’. Indeed, Hill commented that in the absence of an effective military capability the Community (as it then was) ‘would have to face the dilemma of either trusting to other forms of security and/or leaving in place the individual Member State’s armed forces and rights to use them’.6 The EU has in effect tried to do elements of both by developing CSDP as a ‘common’ policy in a highly intergovernmental space. This has created an often-awkward duality in the policy whereby consensus is required for a political decision at the European level to use military force or to launch other types of mission or operation, but this may have little bearing on the national decision on whether to make available the required personnel and resources for a CSDP mission or operation. The capabilities issue is therefore at the heart of the perceived effectiveness of CSDP and is subject to political contention. Reliance upon one of the bigger Member States (a so-called ‘framework nation’) is open to charges by smaller Member States that those missions or operations that are successfully adopted often reflect not only the capabilities, but also the will of the larger members, as was the case with the French 5

European Commission ‘A European Defence Fund’ (Press Release, 7 June 2017). C Hill, ‘The Capability-Expectations Gap, or Conceptualizing Europe’s International Role’ (1993) 31(3) Journal of Common Market Studies 305. It should be recalled that Hill’s remarks came the year after the adoption of the Petersberg tasks by the Western European Union (WEU) and well before these tasks were incorporated into the Treaty on European Union in 1997 during the European Council in Amsterdam. 6

156 Research handbook on the EU’s common foreign and security policy lead in military operations in the Democratic Republic of the Congo and Mali. From a planning perspective, it is obviously difficult to plan for timely interventions when there is a fundamental uncertainty about what and who is available (this, incidentally, is not uniquely an EU issue since it also applies to UN peacekeeping operations). The response to this has been to advocate various forms of standing or on-call capabilities, as well as various types of sharing, pooling and joint development of platforms. This chapter will commence by considering CSDP capabilities from a legal perspective, especially whether there are implied or stronger commitments on the part of the Member States to provide capabilities. I shall then consider the manner in which capabilities have been developed in the military and civilian spheres respectively, including the policies and strategies that frame the capabilities debate. Finally, I shall assess the more recent initiatives mentioned above to develop capabilities, especially in the military domain. It should, however, be noted that the defence industrial aspects of capability development are of considerable and growing importance. The European Defence Action Plan (EDAP), in particular, refers to the defence industrial aspects which, to do them justice, merit separate consideration.

2. CAPABILITIES AND THE LEGAL DIMENSION Questions of capabilities pre-date CSDP.7 The introduction of stipulations on security and defence were first specified in the new Common Foreign and Security Policy (CFSP), which formed a new ‘title’ of the 1993 Maastricht Treaty. The early days of CFSP were, in some ways literally, a baptism by fire since they coincided with the disintegration of federal Yugoslavia and the ensuing conflicts fought over a decade or so. The EU itself had no military capabilities at its disposal and had to rely upon the Western European Union (WEU) to ‘elaborate and implement decisions and actions of the Union which have defence implications’ (Article 17(3) TEU at Maastricht). The types of mission for which an ‘operational capacity’ might be necessary are framed by the 1992 Petersberg tasks, which now appear, in updated form, in Article 43(1) TEU. The terminology is general (including, for example, reference to ‘tasks of combat forces in crisis management’) and does not indicate in any detail what kind of capacities might be necessary since this falls beyond the scope of the Treaties. The role of the WEU as a capacity provider was also hampered by the fact that only ten of the EU’s members were full members. Frustration turned to embarrassment as the EU and WEU did little to stabilize the chaotic situation in former Yugoslavia or the unrest in Albania in 1997 following the unravelling of a government-backed pyramid investment scheme. Frustration at the EU’s obvious inadequacies led France and the UK to agree that the EU needs to be in a position to ‘play its full role on the international stage’ and that this should include the development of ‘the capacity for autonomous action, backed up by credible military forces, the means to decide to use them, and a readiness 7

Historically CSDP first emerged as the European Security and Defence Policy (ESDP) and, for a short time, was even called the Common European Security and Defence Policy (CESDP), before becoming CSDP. For the sake of simplicity, I shall refer to CSDP throughout although this is not strictly accurate historically.

Capabilities and CSDP 157 to do so, in order to respond to international crises’.8 Although the precise interpretation of autonomy was open to debate, the push to create what eventually became CSDP had to come from these two sources since France and the UK were, and remain, the EU’s two main military powers and are also the only members with a global horizon to their foreign policies.9 The Anglo-French political push, provided by the St Malo Declaration, was subsequently developed by the European Council and, in time, by specialist military and civilian bodies within the EU. This included the capabilities aspects which are covered in more detail in the following sections. Notwithstanding the development of what became CSDP and the demise of the WEU, the EU remained reliant upon its members. The TEU is clear about this when it states that the Petersberg tasks ‘shall be undertaken using capabilities provided by the Member States’ (Art. 42(1) TEU). This raises the question of whether there is any legal obligation under EU law on the Member States to place ‘capabilities’ at the disposal of the EU for the execution of (Petersberg) tasks. The simple answer is negative in the sense that there is no specific obligation, but there are nevertheless some general obligations relating to capabilities that are worth noting. Since CSDP is an integral part of CFSP, there are a number of stipulations that apply per extensionem to security and defence. For instance, there is the need to ‘support the Union’s external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity’ (Art. 24(3) TEU). More specifically, the purpose of CSDP is to ‘provide the Union with an operational capacity drawing on civilian and military assets. The Union may use them on missions outside the Union for peacekeeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter’ (Art. 42(1) TEU). Member States are also expected to ‘progressively improve their military capabilities’ (while not specifically mentioning civilian capabilities) (Art. 42(3) TEU).10 The stipulation that any operational capability may be used outside the Union is obvious enough but it should be noted that Article 42(7) TEU could imply the use of assets on the territory of a Member State, and the ‘Solidarity Clause’, or Article 222 TFEU, relates to assistance to a Member State ‘in its territory’.11 Article 42(7) TEU notes that ‘[i]f a Member State is a victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all means within their power, in accordance with Article 51 of the United Nations Charter’ 8

Saint-Malo, Joint Declaration Issued at the British-French Summit, Saint-Malo, France, 3–4 December 1998. 9 This chapter was written at a time when the UK was still a full member of the European Union. Although somewhat conjectural, the potential impact of Brexit upon capabilities is discussed throughout the text. 10 It should be noted that the initial emphasis was upon the military dimensions of crisis management, as a reaction to the unrest in the Western Balkans in the early 1990s. The civilian aspects of crisis management were included later following the 2000 European Council in Feira. Other parts of the Lisbon Treaty (like Article 42(1)) clarified the scope of EU crisis management to include both the military and civilian dimensions. 11 See P Koutrakos, The EU Common Security and Defence Policy (OUP 2013) 68–72; European Parliament, ‘The EU’s mutual assistance clause’ (Briefing, November 2015).

158 Research handbook on the EU’s common foreign and security policy (emphasis added). Although the Treaty is careful to note that this shall not ‘prejudice the specific character of the security and defence policy of certain Member States’ (such as the six neutral or non-aligned EU members), the general remit of ‘all means’ could extend to various forms of security and defence assistance. This particular part of the Treaty is stronger than the Article 5 counterpart found in the 1949 Washington Treaty, which obliges NATO members to take ‘individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force …’ (emphasis added). The only example of the invocation of Article 42(7), following the November 2015 Paris attacks, led rather surprisingly not to direct support for the security of France per se, but to the relief of French military commitments overseas so that French security assets could be concentrated on national security tasks following the bombings. Although there was no obligation on other Member States to provide military assistance, there was nevertheless a bilateral obligation upon the EU’s members rather than one that applies specifically to the EU context.12 With the sole and rather rarefied exception of Article 42(7) TEU, any obligation to provide capabilities to CSDP missions or operations should be considered as a general commitment but subject to decisions by the relevant national authorities. There is, in other words, no automatic right of release that would be required to constitute a ‘European army’. The other associated issue is who should provide capabilities. As has been observed, there are varying levels of capabilities and preparedness among the EU Member States and it is unlikely that all EU members will be able, or willing, to contribute. This was foreseen in the Treaties through the provision for flexible forms of CSDP engagement in missions and operations. An issue that has resurfaced in current debates is permanent structured cooperation (PESCO), which is open to 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’ (Art. 42(6) TEU). Article 46 TEU refers to a protocol on PESCO which lays down some of the requirements, albeit in somewhat non-specific terms (see Protocol 10 on PESCO). The emphasis is, however, on exclusivity with reference to those who proceed to develop their defence capacities ‘more intensively’, or to those who have the capacity to supply ‘targeted combat units for missions planned’ and those who will bring their defence apparatus ‘into line with each other as far as possible’ and ‘take concrete measures to enhance the availability, interoperability, flexibility and deployability of their forces’ (Protocol 10: Arts 1–2). PESCO has generated considerable interest as a way to boost the EU’s military capabilities post Brexit. I shall discuss this in more detail later. Article 42(5) TEU makes it possible to entrust the ‘execution of a task, within the Union framework, to a group of Member States in order to protect the Union’s values and serve its interests’. This rather pragmatic provision recognizes the disparities in capabilities between the Members and foresaw that it would be impossible to insist on every member contributing to a task, in much the same way that PESCO implicitly 12 See C Hillion and S Blockmans, ‘Europe’s Self-defence: Tous pour un et un pour tous?’ CEPS Commentary, 25 November 2015; European Parliament, ‘The EU’s mutual assistance clause’ (n 11).

Capabilities and CSDP 159 recognizes the desire of EU members to move at different speeds. How then are we to understand this provision, along with Article 46, when set against Article 42(3) TEU which obliges Member States to ‘make civilian and military capabilities available to the Union for the implementation of the common security and defence policy’? Article 42(4) TEU requires that decisions relating to CSDP shall be adopted by the Council acting unanimously. Such decisions will typically lay out the mandate and objectives of a CSDP mission, the general requirements, as well as details such as the operational headquarters and commander. Any associated force generation is, however, a separate process that relies in most cases upon capabilities that fall under national command structures and thus the relevant national decision-making structures (which may, in some cases, even include the need for an affirmative decision by the national parliament). In other cases, participation in a CSDP mission by a given Member State may hinge upon a prior UN Security Council resolution (this became a bone of contention in the case of the EU’s Rule of Law mission to Kosovo where the anticipated UN Security Council resolution never materialized). The political-level decision, which requires unanimity, does not therefore extend to an obligation on the Member States to provide the necessary military or civilian capabilities. This logic is consonant with the inclusion of PESCO and the ability to entrust tasks to groups of Member States in the Treaties since it was recognized that not only are there differences in capabilities between the Union’s members, but that not all may wish to be involved in contributing to a CSDP mission or operation since decisions on nearly all resources and personnel are made on a national basis. The role of the European Defence Agency (EDA) is a further indication of the restricted role that the EU can play in capabilities issues. The powers of the Agency are set out in Article 45 TEU and are generally advisory and, at best, rely upon persuasion. The general lack of authority of the European Court of Justice in CFSP and CSDP also means that the commitments in the articles mentioned above have to be viewed as essentially political in nature (for an in-depth analysis of this point see Chapter 4 in this volume). Security and defence priorities continue to be decided upon at the national level subject to strategic defence reviews that are largely uncoordinated between the Member States. As we shall see later, the EU’s members have (so far) been resistant to most of the arguments put forward by the EDA, which often appeal to economic rationale in a time of austerity. The arguments so far have suggested that there is no binding obligation for the Member States to provide capabilities, with the possible exceptions of Article 42(7) TEU and Article 222 TFEU. But in both of these cases the precise nature of any assistance, and thus capabilities, lies beyond the Treaties. Generally, the EU continues to rely upon the willingness of its members to make the necessary capabilities available, but this is subject to national determination and the aforementioned principle of a single set of forces. Having said this, there have been numerous efforts on the EU side to make the generation of the required forces and assets more predictable since the effectiveness of the Union will ultimately depend upon the application of the required expertise and capabilities at the right time and in the right place. Since the capability development processes for military and civilian operations and missions have developed in a rather distinct manner, they will be treated separately in the following

160 Research handbook on the EU’s common foreign and security policy sections, notwithstanding the many efforts to harmonize more closely the civilian and military aspects of crisis management.

3. MILITARY CAPABILITY DEVELOPMENT Until recently it was normal to speak of capabilities as falling under the EU’s Comprehensive Approach to external conflicts and crises.13 This has now been supplemented by an ‘integrated approach to conflicts’, stressing the need for coherent use of all of the instruments at the EU’s disposal.14 It is also framed by proposals for a ‘new level of ambition’ in the EU’s security and defence, as expressed in the 2016 Implementation Plan on Security and Defence (IPSD).15 Part of the IPSD involves using the full potential of the Lisbon Treaty (hence the renewed interest in PESCO and entrusting tasks to groups of Member States). In this document the EDA and the Member States have agreed to ‘specify and complement capability priorities based on the Level of Ambition and the EUGS, as part of the revision process of the Capability Development Plan’.16 The capability requirements therefore stem from strategic perspectives (the European Security Strategy of 2003, its update in 2008 and, more recently, the EUGS) as well as the ‘level of ambition’. The adoption of the Petersberg tasks, mentioned above, framed the initial level of ambition in terms of capacity. Following the St Malo Declaration, also mentioned above, the first of a number of ‘Headline Goals’ (HLGs) was established at the Helsinki European Council in 1999 and were supposed to be implemented by 2003 (they are therefore often referred to as HLG 2003). The aim set in Helsinki was described as follows: To develop European capabilities, Member States have set themselves the headline goal: by the year 2003, cooperating together voluntarily, they will be able to deploy rapidly and then sustain forces capable of the full range of Petersberg tasks as set out in the Amsterdam Treaty, including the most demanding, in operations up to corps level (up to 15 brigades or 50,000–60,000 persons). These forces should be militarily self-sustaining with the necessary command, control and intelligence capabilities, logistics, other combat support services and additionally, as appropriate, air and naval elements. Member States should be able to deploy in full at this level within 60 days, and within this to provide smaller rapid response elements available and deployable at very high readiness. They must be able to sustain such a deployment for at least one year. This will require an 13

Joint Communication to the European Parliament and the Council from the European Commission and the High Representative of the European Union for Foreign Affairs and Security Policy, ‘The EU’s comprehensive approach to external conflict and crises’ JOIN (2013) 30 Final. 14 European External Action Service, ‘Shared Vision, Common Action: A Stronger Europe. A Global Strategy for the European Union’s Foreign and Security Policy’ (28 June 2016) 9. 15 European Commission, ‘European Defence Action Plan: Towards a European Defence Fund’ (30 November 2016) 2–4. 16 Council of the European Union, ‘Implementation Plan on Security and Defence’ (n 3) 5.

Capabilities and CSDP 161 additional pool of deployable units (and supporting elements) at lower readiness to provide replacements for the initial forces.17

A year later a Capabilities Commitment Conference was held in Brussels where Member States took it upon themselves to make national contributions to the HLGs on a voluntary basis.18 But no sooner had the deadline arrived for the implementation of the HLG 2003 than the Council approved new HLGs in 2004 to support the recently adopted European Security Strategy (ESS). The December 2003 ESS called for a ‘more capable’ Europe, which included the exhortation to use pooled or shared assets to avoid duplication and overheads’.19 The military capabilities for the new HLGs were calculated on the basis of five illustrative scenarios ranging from separation of forces; stabilization, reconstruction and military advice to third countries; conflict prevention; evacuation operation; and assistance to humanitarian operations.20 The new HLGs envisaged 2010 as the adoption date. HLG 2010 opened the possibility of either a major operation or the ability to conduct a series of operations and missions of varying scope. The EDA was created in 2004 and its role was therefore included in the HLG 2010, with an emphasis on interoperability at the technical, procedural and conceptual levels. The Battlegroup concept was also woven into the new HLGs.21 The actual development of capabilities is carried out through three catalogues. The first is the Requirements Catalogue (RC), which is a compilation of the capabilities the EU would be likely to need, based on the five illustrative scenarios outlined above. These estimates were then fed into generic force packages and reference units, which formed the basis for the RC. It should, however, be noted that any capabilities in the catalogue ‘are voluntary and non-binding and cannot be used for Force Generation processes’.22 A Force Catalogue (FC) lists actual qualitative and quantitative capabilities which the Member States could make available to the EU on a case-by-case basis.23 The FC is regularly updated by the EU Military Committee (EUMC) and the EUMC Working Group/Headline Goal Task Force. The FC is then compared to the HLGs and in those capability areas where shortages are identified as ‘shortfalls’ a third 17 Council of the European Union, Annex iv of the Presidency Conclusions, Helsinki European Council, 10–11 December 1999 2–3 at . 18 Denmark did not participate, having obtained an opt-out on all defence-related provisions of the Treaties prior to its second referendum on the Maastricht Treaty. 19 ESS, ‘European Security Strategy: A Secure Europe in a better world’ (12 December 2003) 12. 20 Council of the European Union, ‘Development of European Military Capabilities’ (July 2009) at . 21 Council of the European Union, ‘Headline Goal 2010’ (17 May 2004) . 22 See P. van der Heijden, ‘Military Capability Development’ in CSDP Handbook: Missions and Operations (Federal Ministry of Defence and Sports, Republic of Austria 2015) 238. 23 The initial Force Catalogue has been updated to reflect not only new EU members, but also voluntary contributions by non-EU states.

162 Research handbook on the EU’s common foreign and security policy catalogue, the Progress Catalogue (PC), comes into play. The PC ‘identifies quantitative and qualitative military capability shortfalls on the basis of requirements set out in the Requirements Catalogue 2005 and the contributions compiled in the Force Catalogue 2007’.24, 25 An initial cross-referencing of the catalogues indicated that around 104 of 144 capabilities had been ‘filled’, leaving 40 or so shortfalls, but of these 21 were deemed ‘significant’.26 A European Capability Action Plan (ECAP) was launched in 2002 to address these shortfalls. Nineteen panels of national experts developed possible solutions in the main shortfall areas.27 Addressing the shortfalls was, however, reliant upon a ‘bottom-up’ approach where the Member States were expected to make voluntary national commitments.28 Some commitments might therefore depend upon Member States making available national capabilities that had not previously been offered. The more difficult problem was to address shortfalls where no capabilities exist at the European level. Although some shortfalls could be rectified with short-term solutions (such as leasing large transport aircraft), others were more likely to require major investment. ECAP had its limitations, stemming from its voluntary nature, often vague timelines, difficulties for the EU Military Staff to follow the deliberations and the ad hoc nature of the exercise.29 Responsibility for monitoring shortfalls was transferred to the EDA, as were some of the flaws inherent in ECAP. ECAP’s successor, the Capability Development Plan (CDP), was developed in close collaboration with the EDA, the EUMC and the Member States. CDP is built around four chapters addressing: short-term capability shortfall analysis against HLG requirements; long-term challenges and risks based on a Long-Term Vision 2025; the identification of potential cooperation at the national level; and lessons learned from CSDP operations and missions. It is therefore not a ‘plan’ as such, but a basic planning element showing the likely short- and longer-term capability needs. CDP is regularly updated at the biannual meetings of the EDA Steering Board in Defence Minister format, based upon longer-term strategic perspectives (2030 and beyond). It differs 24

Council of the EU, ‘Development of European Military Capabilities’ (n 20). It has become increasingly difficult for the external analyst to monitor progress on shortfalls since the EU stopped publishing its shortfalls in public in 2006 (presumably for well-founded security reasons). The basic shortfalls have, however, remained more or less consistent over the last decade. 26 AJK Shepherd, ‘EU Military Capabilities Development and the EDA: Ideas, Interests and Institutions’ in N Karampekios and I Oikonomou I (eds), The European Defence Agency: Arming Europe (Routledge 2015) 68. 27 These were: attack/support helicopters; nuclear, biological and chemical protection; unmanned aerial vehicles; medical role and protection role; special operations forces; suppression of enemy air defences; air-to-air refuelling; combat search and rescue; cruise missile/ precision guided munitions; theatre ballistic missile defences; deployable communications modules; headquarters; theatre surveillance and reconnaissance air picture; strategic image intelligence collection; early warning and distant detection strategic level; strategic air mobility/ outsize transport aircraft; roll-on-roll-off vessels. 28 Council of the European Union (2001), General Affairs, 2386th Council meeting, Press Release 13802/01, Brussels, 19–20 November, Section III. 29 See B Schmitt, European Capabilities Action Plan (EU Institute for Security Studies 2003). 25

Capabilities and CSDP 163 from ECAP in the sense that its primary focus is on the future development of research, technology, armaments and industry, which are at the centre of the EDA’s work. The CDP was able to incorporate the consequences of HLG 2010, estimates of capability requirements in 2025 (see below), plans and programmes announced by Member States and the ‘lessons learned’ from CSDP operations.30 Since a number of non-EU NATO members have been involved in CSDP missions or operations (such as Canada and Norway) complementarity between the EU and NATO capability plans was essential and led to the development of common Capability Codes and Statements, which apply in either context. Timelines for reporting and longer-term development are coordinated between the EU and NATO. The EDA also placed more emphasis on pooling and sharing of military capabilities, as well on the education and training of military staff. A 2010 Pooling and Sharing initiative, based upon a German-Swedish food for thought paper (also known as the Ghent initiative), was launched the following year with the adoption of a list of priorities.31 This, in turn, was followed by a ‘Code of Conduct on Pooling and Sharing’ in 2012 in an attempt to incorporate pooling and sharing into national planning and decision-making processes.32 Thereafter the Council regularly called for further development of military capabilities ‘for sustaining and enhancing CSDP’.33 The December 2013 European Council held its first thematic debate on defence since the entry into force of the Lisbon Treaty. The European Council identified three axes or priority areas: increasing the effectiveness, visibility and impact of CSDP; enhancing the development of capabilities; and strengthening Europe’s defence industry.34 With regard to the second priority, the European Council identified several capability developments in particular: + the development of Remotely Piloted Aircraft Systems (RPAS) in the 2020–2025 timeframe; a programme for the next-generation European Medium-Altitude Long Endurance MALE RPAS; a RPAS user’s community; synergies with the European Commission on regulation; and appropriate funding for RPAS activities; + air-to-air refuelling capacity: progress in establishing a Multi-Role Tanker Transport capacity, with synergies in certification, qualification, in-service support and training; + satellite communications: preparations for the next-generation Government Satellite Communication through close cooperation between Member States, the Commission and the European Space Agency; + cyber defence: the development of a roadmap and concrete training and exercises, improving civilian/military cooperation on the basis of the EU Cybersecurity Strategy as well as the protection of assets in EU missions and operations.35 30

Council of the EU, ‘Development of European Military Capabilities’ (n 20). The list currently concentrates on air-to-air refuelling, medical support, helicopter initiatives, counter improvised explosive devices and the European Air Transport Fleet. 32 European Defence Agency, ‘Code of Conduct on Pooling and Sharing’ (2012) at . 33 Foreign Affairs Council, 19 November 2012, Conclusions. 34 European Council, European Council Conclusions EUCO 217/13, 19–20 December 2013, 2. 35 ibid 5–6. 31

164 Research handbook on the EU’s common foreign and security policy The fact that many of the major capability programmes have a horizon of beyond 2025 tells us something about the research, development and manufacturing cycles of major defence assets. Nevertheless, the EDA’s provisional assessment is positive, with ‘good progress’ in the four key capability programmes.36 To summarize, military capability requirements are derived from the HLGs and more recently the EUGS and its ‘Level of Ambition’. The strategic level will, in turn, inform the illustrative scenarios and the strategic planning assumptions, which will then lead to the identification of shortfalls as input into the CDP. The EDA is the primary body with responsibility for working with the Member States to develop military capabilities, although progress thus far has depended heavily on voluntary actions and national calculations.

4. CIVILIAN CAPABILITY DEVELOPMENT The civilian aspects of crisis management developed after the initial emphasis on the military aspects, with the 2000 Feira European Council often being marked as the starting point. Despite this, most CSDP operations have been civilian in nature, as are the majority of the ongoing operations (which include police, rule of law, training and advice missions). As of 2015, the EU deployed 1,500 international experts on three continents for CSDP civilian missions.37 Unlike their military counterparts, which were able to draw upon a long history of collaboration prior to CSDP through the WEU, NATO or even the UN, much of the Union’s civilian crisis management capacities had to be built up from scratch. Most of the EU’s civilian crisis management experts are volunteers from the Member States who are usually available for a year at a time. As with military experts, the Member States have to make an often-difficult cost-benefit calculation about the relative merits and demerits of seconding a national expert to EU missions. Based upon evidence from the Annual CSDP Lessons from 2013–2015, the EU has been beset by shortages of adequately trained and experienced staff for its civilian missions, especially when it comes to niche specializations and senior experienced staff. The issue is compounded by different national procedures for assessing the range and quality of civilian personnel; an issue that will hopefully be addressed through Goalkeeper’s ‘Registrar’ module (see below). Further problems with availability have arisen due to legal, administrative and financial conditions applying to secondment to CSDP missions. Legal issues have arisen as a result of variations in contract terms for seconded personnel from one seconding agency to the other, while the financial complications arise from the fact that the contributing states bear all personnel-related costs for seconded personnel. There have also been administrative issues due to the differences between the EU’s members on training, coaching (before and after deployment) and reintegration into the domestic labour markets. Other more general challenges arise 36

European Defence Agency, Annual Report 2015, 3 at . NA Tovornik, ‘Civilian Capability Development’ in CSDP Handbook: Missions and Operations (n 22). 37

Capabilities and CSDP 165 from debates about what should constitute ‘best practice’ at the European level for civilian missions.38 Generating the required civilian capabilities and expertise for CSDP missions has proven challenging due, in large part, to the scarcity of trained expertise at the Member State level or, where it exists, the reluctance of members to spare such expertise. Capability development in the civilian sphere is broadly modelled on that in the military sphere, outlined above. As has been noted, this is logical enough given the prior development of the military aspects. The civilian aspects were first clearly enunciated in 2000 at the Feira European Council, which also adopted ‘priority areas for targets in civilian aspects of crisis management and of specific targets for civilian policy capabilities’.39 These priorities were listed in an annex to the Presidency Conclusions as police, strengthening the rule of law, strengthening civilian administration and civil protection. A further annex laid down specific targets for the development of police capabilities, which are sometimes referred to as the ‘Civilian Headline Goals’, whereby the Member States undertook to provide up to 5,000 police officers for international missions ‘across the range of conflict prevention and crisis management operations’ by 2003. In addition, 1,000 police officers should be deployable within 30 days. This necessitated the preidentification and training of a large pool of police staff. Their identification, ‘levels of expertise’ (DEL and expertise) were fed into a police database originally housed in the Council Secretariat. The ESS provided the political-level justification for the development of civilian crisis management capabilities, having noted the value added of developing ‘operations involving both military and civilian capabilities’.40 Subsequently two civilian HLGs established the level of ambition, tasks and thus capabilities. The first, adopted in 2008, had as the level of ambition approximately a dozen CSDP civilian missions of varying types, alongside a major mission, which could involve up to 3,000 experts for several years.41 The 2008 goals formulated the capability requirements around the four priority areas identified at Feira. But they also noted the importance of contributing to monitoring missions, providing support to Special Representatives as well as, inter alia, contributing to ‘activities such as security sector reform and support disarmament, demobilisation/reintegration processes’.42 The emphasis was not upon substitution of local forces or authorities, but to strengthen local institutions, as well as upon preventative activities. Since few crises are uni-dimensional, emphasis was also placed on the development of ‘integrated civilian crisis management packages’ and providing ‘an effective response across the full range of tasks in conflict prevention and crisis 38

European Parliament, ‘Civilian and military personnel in CSDP missions and operations’ PE 578.035 (February 2015); and ME Smith, Europe’s Common Security and Defence Policy: Capacity-Building, Experiential Learning and Institutional Change (CUP 2017) 128–173. 39 European Council, Conclusions of the Presidency, Santa Maria da Feira, 19–20 June 2003. 40 ESS, ‘European Security Strategy: A Secure Europe in a better world’ (12 December 2003) 11. 41 Council of the European Union, ‘Civilian Headline Goal 2008’ 15863/4 (7 December 2003). 42 ibid, 2.

166 Research handbook on the EU’s common foreign and security policy management’.43 The emphasis of the 2008 Headline Goals was very much upon personnel and establishing what and who might potentially be available. A further set of Civilian Headline Goals (2010) were approved by the Council in 2007. The main purpose of the second set was to help the EU ‘establish a clear illustrative framework for civilian capability planning and development, drawing on civilian European Security and Defence Policy (ESDP) mission experience and informed assessment of the expected and most urgent threats and challenges, and set capability targets accordingly’.44 A Civilian ESDP Capability Planning Process was agreed to in 2007 and work began the following year to review illustrative scenarios (as in the military case), assess required capabilities and survey civilian capabilities. A report on civilian preparedness would then be fed into national ministerial guidelines and civilian capability targets. As in the case of their military counterparts, a series of ‘conferences’ was envisaged from 2009 onwards to assess the state of play, monitor progress and guide future efforts. The 2010 Civilian Headline Goals were more sophisticated in the sense that the latter could benefit from the lessons learned from the first civilian missions, as well as being able to consider other important aspects such as the emerging synergies between the Area of Freedom, Security and Justice and CSDP and other relevant actors. In December 2010 the Council extended the implementation of the civilian (and military) HLGs beyond 2010, thus offering the opportunity to explore in greater depth the synergies mentioned above, the chance to build in ‘lessons learned’ (as the result of CSDP missions), national strategies and other changes in the strategic environment (such as the 2016 EUGS). The extension also permitted more effective use of support instruments (such as the ‘Goalkeeper’ software mentioned below) and other technological innovations (including those developed through or notified by the EDA). The Civilian HLGs, like their military counterparts, are scenario driven. Based on various scenarios, Member State capabilities will be identified, the availability of resources will be based on a questionnaire and the subsequent responses will then lead to the identification of shortfalls. This process is supported by the ‘Goalkeeper’ information hub in the EEAS, which is based upon the Civilian HLGs, mission outcomes, agreed concepts for the conduct of civilian CSDP missions and training offered to support civilian CSDP.45 The ‘Goalkeeper’ software is built around training (schoolmaster), standard job descriptions (head-hunter), rosters in the Member States and electronic responses (registrar) and EU Concepts and national measures (governor). Each of the components of ‘Goalkeeper’ has specific access protocols, with the intention of allowing appropriate access to each of its components. In the post-Lisbon context, the HLGs continued to provide the general level of ambition for capability development. In December 2011 the Council called for a multi-annual capability development approach, which led the following year in July to the Civilian Capability Development Plan (CCDP). The CCDP adopts a multi-annual 43

ibid, 3. Council of the European Union, ‘Civilian Headline Goal 2010’, approved by the Civilian Capabilities Improvement Conference and noted by the General Affairs and External Relations Council (19 November 2007). 45 EEAS, Goalkeeper, at . 44

Capabilities and CSDP 167 approach, incorporating the software environment, with the overall aim of making better use of existing resources as well as efforts to facilitate rapid deployment of personnel and assets. The objective of the CCDP, based on the HLGs, was to establish a ‘list of generic CSDP tasks’ based on abstractions from the (civilian) scenarios.46 A permanent CSDP warehouse for civilian assets was established in 2012 to support the launch of operations with around 200 personnel within 30 days of the approval of the Crisis Management Concept.47 The May 2015 Foreign Affairs Council noted that ‘[r]ecognising the continuous high demand for rapidly deployable, well trained civilian experts, including specialised profiles, the Council underlines the need to further improve and expedite the development of civilian capabilities’, while noting that the CCDP was still not fully implemented.48 It is, however, worth noting that the formulation of a number of generic civilian CSDP tasks in 2015 was an important step towards the implementation of the CCDP. In terms of the EEAS’s support structures the most relevant in this domain are the Committee for the Civilian Aspects of Crisis Management (CivCom), an advisory body composed of Member State representatives, and the Crisis Management and Planning Directorate (CMPD). CivCom was established in 2000 and it advises the Political and Security Committee (PSC), an ambassadorial-level committee, on the civilian aspects of crisis management. It also prepares planning documents for new missions, makes recommendations to the PSC and helps develop strategies for the civilian crisis management and capabilities. CMPD also reports to the PSC but was only created in 2009 and is also composed of representatives of the Member States. Among its mandates is the development of the EU’s civilian and military capabilities, with special attention being paid to the synergies between the two aspects of crisis management. It is worth noting several contrasts between the civilian and military capability processes. The former suffered from having far less information on availability of assets and levels of training and expertise than their military counterparts. As noted, the latter could benefit from decades of coordination and information stemming from collaboration through other organizations (such as the WEU or NATO). There was no such civilian crisis management collective memory to build upon from the outset. The lack of a ‘one-stop shop’ in the civilian arena was a further source of frustration although, unlike the military domain, civilian missions can at least draw upon a modest but permanent CSDP warehouse.49 The CSDP permanent warehouse for civilian assets was established in 2012 and became operational in June 2013. The warehouse is, however, limited to providing storage for strategic equipment for the rapid deployment of up to 200 personnel of newly launched missions within 30 days. It was used to provide equipment for EUBAM Libya. The European Parliament has since urged the 46

Council of the European Union, ‘Multi-annual Civilian Capability Development Plan: Action Lines for 2012–2013’ 12111/12 (6 July 2012). 47 Council of the European Union, ‘Council conclusions on Common Security and Defence Policy’, 3130th Foreign Affairs Council (1 December 2011) 4. 48 Council of the European Union (2015), ‘Council conclusions on CSDP’ 8971/15 (18 May 2015) 12. 49 ‘Council conclusions on Common Security and Defence Policy’ (n 47).

168 Research handbook on the EU’s common foreign and security policy expansion of its stocks and mission service under a new Shared Services Centre. Currently, The involvement of different national ministries, personnel and contacts complicates the collection of basic information and liaison. From the perspective of many of the national ministries, the primary purpose of personnel and resources that could be of potential interest for civilian CSDP missions remains, in the first place, subject to national priorities. The first sections addressed the nature of the obligations of the Member States to provide capabilities for CSDP operations and missions. At the political level, provision of the necessary capabilities has been driven by a series of ‘Headline Goals’. This led the European Council, with a carefully parsed statement, to claim at Laeken in 2001 that ‘[t]hrough the continuing development of ESDP, the strengthening of its capabilities, both civil and military, and the creation of the appropriate EU structures, the EU is now ready to conduct some crisis-management operations’ (emphasis added).50 By 2003 the European Council was ready to declare that ‘[b]ased on the Forces contributed to the Helsinki Force Catalogue 2003, the current military assessment of the EU military capabilities is that the EU now has operational capability across the full range of Petersberg tasks’.51 In retrospect, both declarations seem optimistic since the EU remains reliant upon the willingness of its members to provide the political will and capabilities, notwithstanding efforts to develop common understanding of capability shortfalls and development, or pooling and sharing, options. The voluntary nature of capability development is an obvious pitfall, which explains some of the enthusiasm for pooling and sharing, but this has only produced ‘marginal results’ that are ‘not yet an adequate response to the size of the problems’.52 The procedures to identify military capability shortfalls were developed reasonably rapidly, largely due to the legacy of similar exercises carried out in the WEU or NATO context. By way of contrast, there was little legacy to build upon when it came to civilian capabilities. But the issues encountered with civilian CSDP missions were more related to the availability of personnel, their training and compatibility of standards and procedures. Those relating to the military operations were in many ways more difficult to address, due, in large part, to the challenges associated with the transition from Cold War contingencies, which stressed defensive postures and equipment, to those that required expeditionary-type forces for out-of-area operations. Other issues, such as austerity measures across much of the EU following the financial crisis, also had an impact upon capabilities for CSDP missions and operations. The previous sections prompt obvious questions about the future. Will there be more initiatives at the EU level which will be frustrated by decisions made at the national level predicated upon calculations of national interest or perhaps even the lack of political will to back up the rhetoric? Or, are we at a watershed where the economics 50 Laeken Declaration, ‘Declaration on the Operational Capability of the Common European Security and Defence Policy’ (2001). 51 Council of the European Union, ‘Declaration on EU Military Capabilities’ Press Release 9379/03 (19–20 May 2003). 52 European Parliament, ‘State of play of the implementation of EDA’s pooling and sharing initiatives and its impact on the European Defence Industry’ PE 534988 (6 June 2015).

Capabilities and CSDP 169 associated with affording comprehensive national civilian and military capabilities has become simply unaffordable, thus making joint development, pooling and sharing necessities? If so, are there any initiatives that are likely to upset the trends outlined so far that will not only bolster the Union’s security capabilities but might also lead to a common defence? These are the questions that underpin the following section.

5. FUTURE CAPABILITY REQUIREMENTS This section will discuss future capability requirements based primarily on the EUGS and the IPSD, both of which were mentioned briefly in an earlier section. A third document, the Commission’s European Defence Action Plan, which, among other things, proposed the establishment of a European Defence Fund (EDF) to support investment in joint research and the joint development of defence equipment and technologies, SMEs and start-ups, and a strengthening of the Single Market for defence. The EDF has two windows, one for ‘research’ and the other for ‘capabilities’, although it is not yet entirely clear how complementarity between the two will be ensured. This, as Fiott has observed, marks ‘a radical shift in the way the EU thinks about and supports defence’.53 The EUGS makes a number of striking comments with potentially far-reaching implications for CSDP capabilities. To start with, it nicely encapsulates almost 35 years of debate on capability issues when it states that ‘Member States remain sovereign in their defence decisions: nevertheless, to acquire and maintain many of these capabilities, defence cooperation must become the norm’. The strategy then maintains that the EU needs to be strengthened as a security community: European security and defence efforts should enable the EU to act autonomously while also contributing to and undertaking actions in cooperation with NATO. A more credible European defence is essential also for the sake of a healthy transatlantic partnership with the United States.54

The EUGS introduces three important notions that may both have important implications for capabilities issues. First, it introduces the notion of autonomy under the general heading of Europe taking more responsibility for its own security. The EUGS acknowledges that [w]hile NATO exists to defend its members – most of which are European – from external attack, Europeans must be better equipped, trained and organised to contribute decisively to such collective efforts, as well as to act autonomously if and when necessary. An appropriate level of ambition and strategic autonomy is important for Europe’s ability to foster peace and safeguard security within and beyond its borders.55

53

D Fiott, ‘Promoting European Defence Cooperation and the Promise of Financial Incentives’ (Comment No. 16, Armament Industry Research Group 2017). 54 ‘Shared Vision, Common Action’ (n 14) 20. 55 ibid, 22.

170 Research handbook on the EU’s common foreign and security policy What exactly does this mean? As explained elsewhere in the EUGS, it implies that ‘European security and defence efforts should enable the EU to act autonomously while also contributing to and undertaking actions in cooperation with NATO’.56 Indeed, ‘strategic autonomy’ informs the underpinning level of ambition of the strategy. The phraseology employed is reminiscent of that employed in the 1998 St Malo Declaration, which also mentioned ‘the capacity for autonomous action’, largely to pander to French political wishes, but also referred to the ability of the EU to ‘take decisions and approve military action where the Alliance as a whole is not engaged’, presumably to placate British anxieties. The EUGS introduces a similar dilemma of what might happen when, for whatever reason, NATO (which usually means the US) does not come to the assistance of its European allies. A second term which is hard to ignore is ‘resilience’ since this word and ‘resilient’ are used no fewer than 41 times in the EUGS. This suggests that CSDP has a responsibility to bear for the security of its own citizens and societies and a wider (not entirely altruistic) duty to enhance different types of resilience, including those pertaining to a wide variety of security challenges.57 Part of resilience, which is seen as something that encompasses all individuals and the whole of society, involves intensifying EU–NATO cooperation in order to ‘bolster resilience as part of their work on countering hybrid threats’.58 In practical terms this involves, inter alia, greater coherence between the EU CDP and NATO’s Defence Planning Process (NDPP). While they are broadly compatible, there are also notable differences.59 The CDP is analytical but it is still based upon five illustrative scenarios developed as part of the 2003 HLG (which tend to reflect the EU’s experience in the Western Balkans at that time). This leaves significant gaps in the overall capability assessments. Traditionally, the bigger-ticket items, at the higher end of the combat spectrum, have been left to NATO’s NDPP. Unlike CDP, which is based on overall shortfalls, NDPP assigns national targets but it is worth noting that US capabilities often have a distorting effect (which, if unavailable for a non-Article 5 contingency, could leave NATO with significant shortfalls). The focus of NDPP also tends to be far shorter, with a horizon of around 4–5 years, in contrast to the longer-term horizon of CDP. The assignation of national targets by NDPP also moves the focus away from multilateral research, development and procurement, which tends to be the focus of CDP. The largely overlapping membership of NATO and the EU also poses the question of whether a common defence planning system might not be preferable to further align the two organizations and to avoid duplicative reporting. Since NDPP is older and in many ways better established, this might be the default choice. There is, however, no consensus on this point and both CDP and NDPP are at the mercy of the sovereign members of the respective organizations who make the ultimate decisions on which capabilities are required and what to develop. 56

ibid, 20. Joint Communication to the European Parliament and the Council, ‘A Strategic Approach to Resilience in the EU’s external action’ JOIN (2017) 21 Final. 58 ibid, 17. 59 European Parliament, ‘State of play of the implementation of EDA’s pooling and sharing initiatives and its impact on the European Defence Industry’ (n 52). 57

Capabilities and CSDP 171 More broadly, EU–NATO cooperation has been frequently discussed, even if it has been circumscribed in practice by differences over Cyprus. Most recently this resulted in a declaration designed to give ‘new impetus and substance’ to mutual relations.60 The capabilities implications are not entirely clear since they involve boosting abilities to counter hybrid threats (that is, hostile acts that may employ irregular warfare, terrorism, indiscriminate violence, criminal acts and propaganda) and bolstering ‘resilience’, including that of the Union’s neighbours. Cooperation at sea and on migration, cyber security and defence is also advocated. Defence capabilities should be ‘coherent, complementary and interoperable’ while defence industries, defence research and industrial cooperation will also need strengthening. If such declarations are to be taken seriously, the need for full-spectrum capabilities is evident, albeit subject to the inevitable political questions of who should do what (which will be complicated by uncertainties over US political will and commitments to the defence of NATO allies, as well as by the ambiguities surrounding the UK’s future relations with the EU). It is far from clear that the type of ‘step-change’ that this would necessitate is anywhere on the horizon since it would imply far more accountability and commitment on the part of the Member States.61 This brings us to the third notion, the frequent use of the term ‘defence’. This could be explained by the tendency in this and other EU documents to use security and defence as interchangeable terms. For instance, the EUGS exhorts members to take ‘greater responsibility for our security’ but then states that ‘[w]e must be ready and able to deter, respond to, and protect ourselves against external threats’ – deterrence and defence, in other words.62 It may also be explained by the historical reservations and political reluctance, at least until the EUGS, to clearly define the ‘D’ in CSDP. Yet the use of both terms in the EUGS has elements that go beyond random word choice. Take the example above where strategic autonomy implies the need for the EU to have the requisite capabilities for security (addressing challenges external to the EU) as well as defence (deterring or meeting challenges to the territory of the EU’s members). While the EUGS acknowledges that NATO is the ‘primary’ collective defence framework, the Alliance does not extend to all of the EU’s members. For these countries, whether they are then left to rely on national defence efforts, or if there is some implied EU responsibility for their collective defence, remains an open question. Care is taken to make it clear that the EU is not presenting itself as an alternative to NATO, but that ‘a more credible European defence is essential also for the sake of a healthy transatlantic partnership with the United States’.63 This resonates with the demands made by Donald Trump during his presidency campaign that US allies shoulder more equal shares of the collective defence burden, demands repeated by Mr Trump when he visited Brussels as President in May 2017. There are nevertheless 60

NATO Declaration, ‘Joint Declaration by the President of the European Council, the President of the European Commission and the Secretary-General of the North Atlantic Treaty Organization’ (8 July 2016). 61 M Drent, L Landman and D Zandee, ‘A New Strategy: Implications for CSDP’ (Clingendael 2016). 62 ‘Shared Vision, Common Action’ (n 14) 19. 63 ibid, 20.

172 Research handbook on the EU’s common foreign and security policy residual doubts surrounding the Trump administration’s observance of the collective defence guarantees under Article 5 of NATO’s founding treaty, which may make the quest for strategic autonomy in security and defence less of a choice for the EU and its members and more a matter of a necessity. This led Chancellor Merkel to observe two days after President Trump’s visit that ‘the times in which we can fully count on others are somewhat over’.64 Either way, the development of a genuine ‘D’ for CSDP will have widespread implications for capabilities and it will be a matter of diplomatic finesse whether this is perceived as an alternative to NATO or the emergence of a more credible European partner. The overall rise in defence expenditure in the EU during 2015–2017 may in part be a result of hectoring by the Trump administration but it is more likely to be the result of support for local arms industries, in the Italian case, and heightened threat perceptions of Russia, in Central Europe.65 The difference between ‘security’ and ‘defence’ could be dismissed as semantic quibbling but in capability terms the importance is crucial. Currently the types of capabilities required for missions outside the EU will tend to emphasize ‘expeditionary force’ military structures for low-intensity operations; in other words, forces that put more emphasis on the ability to move forces and their associated hardware from A to B, that are sustainable, networked and nimble. Those tasks, however, that are more associated with defence are likely to emphasize less mobility, more emphasis on air, land and sea (where applicable) interdiction, static defence installations, as well as quite different implications for logistics and intelligence support. As Luis Simón has observed, if the EU and its members are to rely less upon NATO, or the US specifically, it will imply serious thought and investment into anti-access and area denial (A2/AD) capabilities, including precision-guided munitions, short-range guided rockets, guided artillery and mortars, direct-energy or rail guns, stealth aircraft and greater numbers of submarines.66 The EU’s members are evidently torn on this issue, with some favouring ‘rebuilding the credibility of conventional deterrence and collective defence in light of a resurgent Russia’, while others ‘remain keen to engage in multi-faceted crisis management operations, and are prepared to ramp up efforts in defence capacity building to train and equip missions for which the EU seems to be a more natural fit’.67 As Schilde has aptly commented, a succession of crises surrounding the EU (in Georgia in 2008 and in Ukraine in 2014) has changed aspects of force structure in some, but not all, EU Member States with indications of a shift from the dominant 2000s pattern of investing in expeditionary capabilities (those of a discretionary nature for managing conflict or projecting power outside the continent) back 64

P McGee and G Parker, ‘Europe cannot rely on US and faces life without UK, says Merkel’ Financial Times (London, 28 May 2017). 65 See SIPRI Yearbook 2017, chapter 9, ‘Armaments, Disarmament and International Security, “Military Expenditure”’ (OUP 2018). 66 L Simón, ‘The “Third” Offset Strategy and Europe’s “Anti-access” Challenge’ (2016) 39(3) Journal of Strategic Studies 417. 67 B Giegrich, ‘European military capabilities and future conflict’ Geostrategy (5 March 2016) at .

Capabilities and CSDP 173 towards territorial capabilities (resources towards defending territory or projecting power within Europe).68

The threat from the south is less obvious, but the sale of sophisticated weapons systems by Russia to Syria, or the arming of terrorists or rebels in Libya or Yemen with precision-guided munitions give pause for thought. Until then direct territorial aggression against an EU member had been a rather abstract notion, especially since most of the Union’s members are also NATO members and could therefore count on US security guarantees. The advent of the Trump administration and allied concerns about the reliability of these guarantees has renewed debates about the desirable extent of European autonomy from NATO and its principal benefactor. The possible twin demands of providing for both expeditionary-style capabilities as well as those of a more defensive nature will not only lead to intense political debate (notably among the six neutral and non-aligned EU members), but it will also require far more serious thought about the type of capabilities required, including the question of who should provide for them. These are not entirely new concerns, since similar debates erupted in the 1950s and 1960s, but they have taken CSDP into strange terrain that considers not only defence but its adjunct deterrence. The very thought of a nuclear dimension to CFSP would until very recently have been dismissed as completely outré. Yet, although still rather unlikely, the very fact that the notion of a European nuclear deterrent was introduced by Roderich Kiesewetter, a senior member of Merkel’s CDU, into a debate in the Bundestag is a remarkable, if surreal, development.69 Suffice it to say that the possibility of a common defence policy and a common defence in the EU context has yet to be linked up to any purposive capabilities considerations. If the uncertainties introduced in the early stages of Donald Trump’s presidency can be overcome, it is possible that EU–NATO relations will follow the path suggested by the July 2016 EU-NATO declaration and that these debates will become less relevant (but are still worth having). If they do not, it is important to recognize that the types of investments and capabilities that the EU institutions are currently advocating are linked to the Petersberg tasks and are generally speaking not those associated with defence and deterrence. It could plausibly be argued that the capability aspects of security and defence are tangentially linked in the sense that A2/AD capabilities may be required to access operational theatres in Africa or elsewhere and that some capabilities may serve dual purposes, but the overall capability requirements for successful A2/AD in Europe would imply a radically different debate on capabilities and a change in investment and industrial perspectives from those currently under way. There is little indication that the 68 K Schilde, ‘European Military Capabilities: Enablers and Constraints on EU Power?’ (2016) Journal of Common Market Studies 1, 3 (pre-publication version DOI: 10.1111/ jcms.12444). 69 A Shalal, ‘German lawmaker says Europe must consider own nuclear deterrence plan’ Reuters (16 November 2016) at ; and B Kohler, ‘Das ganz und gar Undenkbare’ Frankfurter Allgemeine Zeitung (27 November 2016) at .

174 Research handbook on the EU’s common foreign and security policy EU’s members are ready for this debate, unless they are forced to this point by an increasingly recalcitrant Trump administration and a hollowed-out NATO. The ambiguous language regarding security and defence has also crept into the CSDP lexicon as a reaction to the UK ‘Brexit’ referendum result of 23 June 2016 after which the French and German Foreign Ministers advocated a European Security Compact encompassing ‘all aspects of security and defence dealt with at the European level’, promoting the EU as an independent actor.70 Their Italian counterpart, Paolo Gentiloni, called for a ‘Schengen for defence’ and the development of ‘the defence capabilities needed to be a prominent player on the international scene’.71 In both cases the foreign ministers recognized that core groups may wish to move ahead more swiftly with defence integration. An informal meeting of 27 EU defence ministers (minus the UK) in Bratislava in September led to a declaration and the adoption of a ‘roadmap’.72 The ‘roadmap’ was high on ambition but less specific when it came to capabilities, which was left to the IPSD. The IPSD, adopted by the Council in November 2016, makes the case for a new Capability Development Plan, a review of military requirements, revisiting the Feira priority areas for civilian missions in light of the changing security environment, and emphasizes the key role of the EDA.73 On the development of civilian capabilities, the plan recommends: + establishing a list of generic civilian CSDP tasks common to all missions and identifying the required capabilities; + ensuring more effective and rapid force generation, including by deploying specialized teams of experts; + strengthening capacities available for generic functions common to all missions; + improved training of mission staff, including through the new CSDP Training Policy. On the military side the plan wants the Member States to ‘collectively retain and further develop full-spectrum military land, air, space and maritime capabilities’ (emphasis added).74 The areas that need investment and collaborative approaches are those identified in the earlier HLGs, namely: + intelligence, surveillance and reconnaissance, RPAS, satellite communications, and autonomous access to space and permanent earth observation; + high-end military capabilities, including strategic enablers; + cyber and maritime security. 70 J-M Ayrault and F-W Steinmeier, ‘A Strong Europe in a World of Uncertainties’ (Voltaire Network, 27 June 2016) 3 at . 71 P Gentiloni, ‘Europe needs “Schengen for Defence”’ Politico.eu (15 September 2016). 72 Council of the European Union Presidency, ‘The Bratislava Declaration’ (16 September 2016). 73 Council of the European Union, ‘Implementation Plan on Security and Defence’ (n 3) 2–4. 74 ibid, 20.

Capabilities and CSDP 175 Precise military requirements, over and above the four priority areas identified by the European Council in 2013, will derive from the EUGS and the Level of Ambition, based on a review of the illustrative scenarios and strategic planning assumptions. The need to deepen defence cooperation is noted due to the rising cost of defence technology and the need to retain full-spectrum armed forces. Yet, as the IPSD notes, ‘80% of defence investment in Europe is still spent nationally and our collective output need to be increased substantially’.75 There remains the question of why so little seems to have changed since the EDA was founded in 2004 in terms of changes in defence expenditure habits and procurement of big-ticket items. There is the hope though that the injection of funding, in the form of a proposed EDF, may redirect defence expenditure towards joint research and the joint development of defence equipment and technologies.76 There is also the possibility that funding for the EDA may also increase since British objections to increasing funding for the agency will disappear. Recent progress has been made on building the EU’s capacity to respond to civilian and military contingencies through, for example, the introduction of a new Military Planning and Conduct Capability (MPCC) and a Joint Support Coordination Cell to strengthen civilian–military coordination.77 Without dismissing the potential benefits of streamlining and various other forms of institutional plumbing, it is evident that any real movement on the underlying capability issues will be far more difficult and less amenable to quick fixes. A Coordinated Annual Review on Defence (CARD), as advocated in the IPSD, is a good place to start, since it would allow coordination between EU (EDAP and the revised CAP), NATO (NDPP) and national planning processes and capability requirements. CARD could then ‘provide an overarching assessment on capability-related issues contributing to political guidance by the Council’.78 CARD has been promoted as a ‘more structured way to deliver the key capabilities needed in Europe, based on greater transparency, political visibility and commitment from Member States, while avoiding any unnecessary additional administrative effort by Member States and EU institutions’.79 CARD could also be of importance in terms of coherence with NATO’s NDPP since it would facilitate information on the contributions provided to NATO through NDPP (or the Defense Investment Pledge or the Partnership for Peace Planning and Review Process) which is currently not automatically released to the EDA.80 CARD could also complement the activities of the NATO-EU Capability Group, which was established in May 2003 to reinforce the respective capability development efforts. The Group, which comprises officials from the EDA and NATO, identifies and attempts to address common capability shortfalls, while promoting ‘Smart Defence’ in the NATO context and the EU’s Pooling and Sharing Initiative. However, it is worth noting that CARD relies entirely upon voluntary efforts in ‘full respect of Member State’s 75

ibid, 21. See European Commission, ‘European Defence Action Plan’ (n 15). 77 Council of the European Union, ‘Council conclusions on progress in implementing the EU Global Strategy in the area of Security and Defence’ Press Release 110/17 (6 March 2017). 78 ibid. 79 ibid, para 10. 80 Council of the European Union, ‘Council conclusions on Security and Defence in the context of the EU Global Strategy’ 9178/17 (18 May 2017) 13. 76

176 Research handbook on the EU’s common foreign and security policy prerogatives and commitments in defence, including, where it applies, in collective defence, and their defence planning processes, and taking into account external threats and security’.81 The EDA would support the biannual meeting of defence ministers through assessments and supporting analysis (they would, in essence, play the role of a secretariat). Progress on the civilian capability aspects should, in theory, be slightly easier with the emergence of ‘standing capacity, pre-configured specialised teams of experts and contingents of police and/or other professional categories …’.82 Even here though, tensions between the internal security demands on Member State human resources and budgets will be an important determinant of the willingness to create any standing capacity and other forms of investment. (The experience of the EU’s Battlegroups on the military side, which, having been created have never been used, offers a salutary lesson on the creation of standing capacities.) The extent of any capability development in the civilian or military realms will also depend upon wider political developments. A Commission follow-up to their ‘White Paper’ on the future of Europe, addressing security and defence, presents three possible scenarios.83 Each has implications for capabilities. First, a continuation of voluntary cooperation with no binding common direction for security and defence. While this scenario envisages greater exchange of information on external threats between the Member States, defence cooperation would be driven in a ‘bottom-up’ manner by economic and technological drivers. This could result in reliance on voluntary national contributions ‘leading to insufficient national cooperation in critical areas such as high-end capabilities’.84 A slightly rosier scenario sees the Member States move towards shared security and defence. Under this, ‘[n]ational defence planning would become far more aligned, facilitating Member States’ cooperation on the acquisition and maintenance of capabilities, thus improving interoperability’.85 The EDF would also come into its own by facilitating the development of multinational capabilities, supported by joint planning, command and logistics at the EU level. Finally, a move towards common security and defence (a Security and Defence Union) would involve fully integrated defence forces which are pre-positioned and permanently available for rapid deployment on behalf of the Union. Defence planning would be fully synchronized and national capability development would take into account European priorities. Capabilities in such areas as ‘space, air and maritime surveillance, communications, strategic airlift and cyber would be commonly procured by the Member States’ with the support of the EDF. This would be underpinned by

81

European Commission, ‘Reflection Paper on the Future of European Defence’ (n 4), para 11. 82 Council of the European Union, ‘Council conclusions on progress in implementing the EU Global Strategy in the area of Security and Defence’ Press Release 110/17 (6 March 2017). 83 ibid. 84 ibid, 13. 85 European Commission, ‘Reflection Paper on the Future of European Defence’ (n 4) 14.

Capabilities and CSDP 177 a genuine European defence market and a dedicated European Defence Research Agency.86

6. PESCO TO THE RESCUE? It is too soon to ascertain which of the three scenarios might transpire but there has never been so much political momentum behind European security and defence. The gap between political vision and actual capabilities remains wide but there is at least now acknowledgement of this fact. The Council’s conclusions of 18 May 2017 noted that there remains the need to ‘substantially update civilian capability development in order to address both identified new challenges and persisting gaps in the originally agreed capabilities’.87 PESCO has gained momentum as the vehicle to develop capabilities which will remain owned and operated by the Member States and which will remain a ‘single set of forces’ that can be employed in other frameworks, like NATO and the UN.88 The frequency of its mention, in the EU Global Strategy, in the EU-NATO declaration and the EDAP, all point to the political weight now attached to PESCO as a core means of addressing the EU’s capabilities and strategic shortcomings. The debates surrounding the extent to which PESCO would be exclusive or inclusive were eventually answered by the European Council, which states that it would be ‘inclusive and ambitious’.89 The European Council acknowledged that any common criteria and commitments that include the most demanding missions will apply to ‘those Member States which are in a position’ to enter into binding commitments based upon agreed criteria.90 Twenty-three EU members signed the joint notification on PESCO in November 2017 and they were soon joined by Portugal and Ireland (leaving only Malta, Denmark and the UK outside). Although PESCO is an intergovernmental programme, the European Commission saw the role of the EDF and the European Defence Industrial Development Programme as a way not only of supporting PESCO, but also of moving the EU and its members towards a European Defence Union. In a further significant development with implications for capabilities, the European Council also advocated that the deployment costs of Battlegroups, which have largely fallen to the Member States participating in the six-monthly rotating Battlegroup, should be borne as a common cost under the Athena mechanism on a permanent basis. This could also be a positive development but it skirts significant questions about the size and utility of the Battlegroups themselves, which have been on standby since 2005 but never used. 86

Council of the European Union, ‘Council conclusions on progress in implementing the EU Global Strategy in the area of Security and Defence’ Press Release 110/17 (6 March 2017) 15. 87 Council of the European Union, ‘Council conclusions on Security and Defence in the context of the EU Global Strategy’ (n 80). 88 ibid, 11. 89 European Council, ‘European Council conclusions on security and defence’ Press Release 403/17 (22 June 2017). 90 ibid.

178 Research handbook on the EU’s common foreign and security policy In order to be workable, PESCO will have to have stability in the form of either permanent or long-term arrangements and it will have to be linked to capability commitments including joint development and procurement, which, as we have seen, is the Commission’s preference. Aside from these important practical stipulations, some additional issues will need to be answered if PESCO is to fulfil its potential. Three issues stand out. First, the incentives for joint procurement, pooling and sharing are probably highest among the main defence industrial powers in the EU but any commitments via PESCO would inevitably create the expectation of returns in the defence industrial sector. The question arises whether PESCO participants would be expected to assume the main burden when it comes to RPAS, air-to-air refuelling, strategic surveillance and satellite imagery, as common assets that could feasibly be called upon by not only PESCO countries, but also those with lower capabilities. If so, the idea of some kind of return on investment, quite aside from the security provided, would be bound to surface.91 It could of course be argued that CSDP missions and operations have tended to be heavily influenced by the interests of the larger Member States and that PESCO would merely formalize what is already evident. But it is unclear whether a club of those who fulfil ‘higher criteria’ might not discourage those who do not meet the criteria for participation. It may even encourage free-rider behaviour and the eruption of intra-EU burden-sharing debates, which have been a feature of transatlantic security relations for almost five decades. Second, PESCO would have to be linked with existing initiatives and EU institutions. Fortunately, there is ample scope for the EDA to take a leading role in the capabilities dimensions of PESCO and other plans mentioned above, such as CARDS, EDAP, the CDP and the EDF, and the envisaged European Defence Research Programme could also be incorporated. The necessary linkages between PESCO, the High Representative, the EUMC and EU Military Staff would also have to be developed. Similar links would have to be established with NATO’s NDPP as well as between the respective military staffs. PESCO is, however, more ambiguous when it comes to civilian capabilities since it was conceptually designed with military missions in mind. It is therefore unclear how PESCO relates to civilian capabilities and, if included, whether the ‘higher criteria’ would be applied to different types of capabilities (this may be especially relevant if a Member State might qualify on the grounds of civilian criteria but not the military ones). Finally, PESCO mentions ‘defence’ at frequent intervals although, in line with the preceding section, there is a tendency to use security and defence as interchangeable terms. Protocol 10 on PESCO, attached to the Final Act of the Lisbon Treaty, clearly has in mind the Petersberg tasks (reference is made to Article 43 TEU) and not those of collective defence. If the current debates take the EU towards a common defence policy and common defence it is not entirely clear if PESCO reinforces or detracts from the ‘three musketeers’ principle that underpins any common defence (to paraphrase, ‘Some 91 A Marrone, N Pirozzi and P Sartori, PESCO: An Ace in the Hand for European Defence (Instituto Affari Internazionali 2017).

Capabilities and CSDP 179 for one, and one for some’ is counter to the original spirit). Certainly, potential resentment of free riders on the Petersberg tasks could sour the notion of a common EU defence.

7. CSDP CAPABILITIES AND BREXIT Little is known about the implications of Brexit for the ongoing CSDP capability discussions. One analyst has argued that Brexit will make little difference since the UK has not been particularly involved in CSDP for the last decade or so, with the important exception of the ongoing anti-piracy operations in the Indian Ocean and Gulf of Aden. He also observed that CSDP was not even mentioned in the UK’s 2015 Strategic Defence and Security Review.92 At the time of writing the nature of any agreement between the EU and the UK on security and defence cooperation is difficult to determine, beyond its presence as a potential bargaining chip (which logically implies that UK cooperation in security and defence could be used for potentially important concessions, but it also implies that the denial of such cooperation could be used punitively). Paradoxically, the departure of one of the EU’s most capable security and defence partners has not led to despondency or death knells. The UK and France account for around 40 per cent of public defence investments in the EU and the UK’s military expenditure is (just) above the 2 per cent of GDP threshold established by NATO in 2014 (in 2017 Estonia, Greece and Poland also met this basic target). The UK, alongside France, has the largest range of combat means, including high-intensity capabilities.93 Serious discussion about CSDP without the UK has been overshadowed by the charges from the Trump administration that Germany, Italy, Spain and other allies do not meet the basic GDP target, although such claims are often countered by the observation that the 2 per cent target is largely fictitious, that defence expenditure is actually rising and that the European allies contribute substantially to peace and security in other ways. More damagingly, it has sparked a debate about the reliability of American security guarantees and their apparently transactional nature at the same time as one of the EU’s most capable military powers prepares to leave.94 Brexit may imply that the EU will lose access to capabilities but it could also mean that the considerable experience of UK civilian and defence personnel would be missed. Operation Atalanta’s headquarters at Northwood will have to be relocated. Recent UK investments in big-ticket items (including two aircraft carriers and fighters) could also have been useful for more distance missions or operations and would have decreased over-reliance on the US. In the event that some kind of association between the EU and the UK is forthcoming, perhaps along the lines of the Framework 92 R Whitman, ‘Defence on the Brexit frontline’ The UK in a Changing Europe (26 February 2016) at . 93 G Faleg, ‘The Implications of Brexit for the EU’s Common Security and Defence Policy’ CEPS Commentary (26 July 2016). 94 A Rettman, ‘Merkel urges EU to take care of own security’ EU Observer (13 January 2017).

180 Research handbook on the EU’s common foreign and security policy Participation Agreements that currently exist with over 15 non-EU states, the dilemmas for CSDP capacities will not be as sharp as they might be. If there is no such accommodation, much of the capacity burden will fall upon the larger EU members, notably France and Germany. It is unclear whether either is willing to shoulder the responsibilities for the new Level of Ambition outlined in the EUGS at the very time when a major military power and co-founder of CSDP is leaving. The UK also has extensive bilateral military ties with, for example, France and the Netherlands, and these too may have to be reassessed. The UK could conceivably contribute to missions or operations as a third party on an ad hoc basis and join industrial defence cooperation programmes. Intelligence cooperation may pose greater hurdles but would presumably be on a reciprocal basis. President Emmanuel Macron’s suggestions for a European Intervention Initiative (EII) made in September 2017 may be one way of involving the UK through the Anglo-French Combined Joint Expeditionary Force. But EEI lacks specificity and it is unclear whether it is designed as an alternative to PESCO (based on the French belief that PESCO concentrates on capabilities to the detriment of important issues of common strategic outlook and culture). If EII is extended to other critical allies, such as Germany, Italy and Spain, as well as non-EU European NATO members such as Norway, it may provide a useful way of involving the UK in European security post Brexit. Fears that Brexit might heighten sensitivities about duplication of NATO assets with a UK in the Alliance, but out of the EU, can be ameliorated by the enhancement of cooperation between the organizations, as was suggested at the July 2016 Declaration on EU–NATO Cooperation. This argued for closer cooperation on hybrid threats, early detection, information sharing and strategic communication. It also advocated broadened maritime cooperation, including on migration. Cyber security is also likely to be another area of growing cooperation.95 In so far as capabilities are concerned, pledges were made to increase interoperability and complementarity with, wherever possible, multilateral projects.

8. CONCLUSIONS Capability issues have generated a modest but specialized literature, much of it stemming from official sources or policy-oriented think tanks. It has not generally penetrated the mainstream academic literature other than at a rather superficial level.96 But it is likely to become an area of more academic scrutiny as the high-level political pressure to address CSDP shortfalls escalates. Recent initiatives stemming from the EUGS and Brexit suggest, at least prima facie, renewed political determination to provide for Europe’s security and defence in an uncertain world. A flurry of national initiatives has ensured that the issue has remained at the top of the agenda. The IPSD is the first of its kind and more will follow to implement other aspects of the EUGS. There are, of course, risks associated with the presence of security and defence at the forefront of efforts to reinvigorate the European project. The most obvious is that it is 95 96

NATO Declaration (n 60). For an exception, see Shepherd (n 26).

Capabilities and CSDP 181 up to the Member States to deliver the capabilities to underpin the new Level of Ambition contained in the strategy. If the 27, without the UK’s sizeable military capabilities and know-how, fail to do so it will not only impact on Europe’s security and defence, but perhaps also upon the progression of European integration in other areas. It is also striking how little has actually changed since the first ‘headline goals’ were adopted. With a few exceptions, Member States have not spent more on defence and most calls for more pooling, sharing and joint development have gone unheeded. Like diplomacy, issues of national security and defence are often at the heart of notions of sovereignty and, in many cases, national pride. The necessary changes of mindset are not evident yet, unless of course an external shock nudges the collective consciousness of the Member States in an appropriate direction (which may be prompted by ongoing concerns about US defence guarantees to its allies or further acts of Russian military aggression) or perhaps by internal inducements (such as the EDF) that change the nature and content of national defence planning and expenditure. In any event, the first concrete attempt to implement the EUGS happens to be in the area of security and defence. It is for this reason that capabilities have become a (or even the) critical issue, not just for Europe’s security and defence, but for the future of the European project itself.

9. Non-proliferation of weapons of mass destruction Eileen Denza

1. INTRODUCTION Efforts by the European Union to coordinate policies of Member States and to take positive action to control the proliferation of weapons of mass destruction (WMD) are long standing, multifaceted and for the most part conducted without high-profile successes or failures. The primary purpose of the work is to reinforce the international agreements which control non-proliferation of WMD – both generally and by concentrating on states of significant concern. Non-proliferation work is integrated with many other aspects of the Union’s CFSP, given its importance in the context of security policy and conflict prevention activities conducted by the Union.

2. THE INTERNATIONAL FRAMEWORK The most important of the three key multilateral agreements which form the background to EU policy is the 1968 Treaty on Non-Proliferation of Nuclear Weapons (NPT).1 The nuclear weapon states (NWS) were at that time limited to the five Permanent Members of the Security Council and Article I of the Treaty imposed a total ban on the direct or indirect transfer of ownership and control of their nuclear weapons. The non-nuclear-weapon states (NNWS) undertook under in Article II ‘not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices; and not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices’. Verification of this obligation and control of any diversion was to be guaranteed by technical Comprehensive Safeguards Agreements concluded between each NNWS and the International Atomic Energy Agency (IAEA) – a UN Specialized Agency – and in the ensuing years most NNWS concluded and implemented safeguards agreements. Every year the IAEA issues a Safeguards Implementation Report with its conclusions for each NNWS as to the effectiveness of these agreements in ensuring that nuclear material is in use for peaceful purposes or otherwise accounted for.2 Verification is further enhanced by the conclusion between all NWS, many NNWS and the IAEA of 1 729 UN Treaty Series 161; UK Treaty Series No. 88 (1970). The Treaty was opened for signature and ratification in London, Moscow and Washington, in the hope of attracting universal participation, including entities such as North Korea and Taiwan not then generally recognized as states. 2 See ‘IAEA Safeguards Overview’, available at www.iaea.org/publications/factsheets/iaeasafeguards-overview.

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Non-proliferation of weapons of mass destruction 183 additional bilateral protocols which permit IAEA inspectors not only to verify the use of declared nuclear material, but also to investigate possible unauthorized activities or undeclared nuclear material. In exchange for these commitments to abstention or renunciation, the NNWS are entitled under the NPT to an ‘inalienable right … to develop research, production and use of nuclear energy for peaceful purposes without discrimination’ and there is to be full exchange among all parties of equipment, materials and information for peaceful use of nuclear energy. The NWS, moreover, are required to pursue negotiations in good faith on effective measures towards nuclear disarmament and towards a treaty on complete nuclear disarmament under effective international control. These reciprocal commitments have been described as a ‘grand bargain’ based on balanced mutuality.3 Chemical weapons are very much older than nuclear weapons and can be traced back to the use of poisoned arrows by Neolithic peoples and to records of the fifth century BC Peloponnesian wars between Athens and Sparta. They were extensively used by both sides during the First World War notwithstanding early attempts to prohibit their use in warfare through the Hague Regulations of 1899 and 1907. Widespread experience and descriptions of the resulting horrors led to the conclusion in 1925 of the Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare – an instrument widely accepted among states but dependent on reciprocity and containing other defects of clarity and enforcement.4 A multilateral convention which bans outright the possession and use of chemical weapons, remedies the defects in earlier treaties and contains effective supervisory and enforcement mechanisms is the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC).5 The Convention contains a precise definition of the term ‘chemical weapon’, a detailed non-exhaustive list of materials covered in an Annex on Chemicals, and a description of permitted purposes for the use of chemical weapons – for example industrial and pharmaceutical purposes, protection and law enforcement. There is an Annex on Implementation and Verification which establishes procedures for checking compliance and the Organisation for the Prohibition of Chemical Weapons (OPCW) is established and entrusted with the task of monitoring and assisting implementation. The third of the key international treaties is the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction6 – also elaborating the prohibition in the 1925 Geneva Protocol but concluded earlier when it was realized that a multilateral prohibition on possession could be achieved more easily in the field of biological weapons than in that of chemical weapons. Parties to the Convention undertake ‘never 3

DH Joyner, International Law and the Proliferation of Weapons of Mass Destruction (OUP 2009) ch 1: ‘The Nuclear Non-proliferation Regime’, esp. 8–9. 4 LNTS vol. 94, 66. 140 states are now parties. 5 32 ILM 800. 192 states are now parties – almost all states are entitled to join. For detailed analysis of the Convention and practice in applying it, see W Krutsch, E Myjer and R Trapp (eds), The Chemical Weapons Convention (OUP 2014). 6 1015 UNTS 163. 175 states are now parties.

184 Research handbook on the EU’s common foreign and security policy in any circumstances to develop, produce or stockpile or otherwise acquire or retain microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes …’ and to prohibit ‘weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict’. The purpose-related nature of the definition makes it difficult to apply given the high proportion of biological agents which have multiple purposes, and in contrast to the Chemical Weapons Convention there is no list of prohibited substances or methods of delivery. As the Convention was concluded during the Cold War, the verification and dispute resolution provisions are also markedly weaker than in the case of the later Convention.7 In addition to those three Conventions, other multilateral international agreements have been concluded or are under active negotiation – the most important being the 1996 Comprehensive Nuclear Test Ban Treaty (CTBT).8 This Treaty would complement the 1963 Treaty Banning Nuclear Weapon States in the Atmosphere, in Outer Space and Under Water9 by seeking to achieve the discontinuance of all test explosions of nuclear weapons, but it cannot come into force without ratification by states listed in Annex II, of which the most significant is the United States. These Treaties are supplemented by UN Security Council Resolution 1540,10 adopted in 2004 under Chapter VII of the Charter so as impose legal obligations on all UN Members, but expressly excluding authorization of the use of force. Its main focus is to prohibit States Parties from providing support to non-state actors attempting to manufacture, possess, transport or use WMD or their means of delivery, to require the parties to adopt domestic laws prohibiting support for such activities by non-state actors and to establish effective national border controls and laws to ensure physical protection of WMD-related materials. The use of a Security Council Resolution for what is essentially a multilateral legislative instrument is almost unprecedented, but was justified by the gaps in the treaty-based system and by the urgency of the problem, particularly the risk of terrorists acquiring or using WMD.11

3. EU CONTRIBUTIONS Although Euratom has extensive rules relating to the peaceful use of nuclear energy, neither the European Communities nor now the EU have internal rules regarding the possession of nuclear weapons or on nuclear disarmament. The Union was from the earliest years of European Political Cooperation intensely concerned with nonproliferation of nuclear weapons in particular, but despite the shared objectives among 7 8 9 10 11

2004.

Joyner (n 3) ch 2: ‘The Chemical and Biological Weapons Non-proliferation Régimes’. Cm 3665. UKTS No. 3 (1964), Cmnd. 2245. S/RES/1540 (2004). GH Oosthuizen and ES Wilmshurst, Chatham House Briefing Paper 04/01, September

Non-proliferation of weapons of mass destruction 185 the Member States there was always difficulty in formulating a common position on the interrelated issues involved between the UK and France as NWS and the others as NNWS. A key objective of the Union in the earliest years of CFSP was to encourage and support the newly independent former Soviet republics which held nuclear weapons on their territories (Belarus, Kazakhstan and Ukraine) to transfer these weapons to Russia to be decommissioned and decontaminated and then to accede to the NPT as NNWS. In return, the three post-Soviet states received security assurances from three nuclear powers – Russia, the US and the UK – in the form of three identical political agreements signed at the OSCE conference in Budapest in December 1994 (the ‘Budapest Memorandum’). China and France gave somewhat weaker individual assurances in separate documents. An extensive and coordinated lobbying exercise was carried out by the Member States using agreed arguments and incentives, which included the promise of full integration into the international community and closer relations with the EU. By 2000 it could be said that the EU had contributed to the achievement of this objective in that all three states had decommissioned their nuclear weapons or surrendered them to Russia and had acceded to the NPT as NNWS – a success from the early years of CFSP which could not have been confidently foreseen following the disintegration of the Soviet Union but which received little recognition.12 When Russian armed forces violated Ukrainian sovereignty and territorial integrity in March 2014, the EU institutions were quick to condemn these actions as clear breaches of the UN Charter and the OSCE Helsinki Final Act, as well as of Russia’s specific commitments to respect Ukraine’s sovereignty and territorial integrity under the Budapest Memorandum of 1994.13 At the time of writing the Council of the EU maintains a non-recognition policy of Russia’s annexation of Crimea, supported by CFSP decisions and sanctions regulations.14 Within the framework of the EU Common Strategy on Russia, the Council established a Cooperation Programme financed and administered by the Commission for non-proliferation and disarmament in Russia. The Programme assisted Russian efforts towards secure and environmentally sound dismantlement of infrastructure and equipment linked to WMD.15 Current actions continuing this support include assistance

12

For detail, see E Denza, The Intergovernmental Pillars of the European Union (OUP 2002) 98–100. 13 See European Commission and High Representative of the Union for Foreign Affairs and Security Policy, ‘Implementation of the European Neighbourhood Policy in Ukraine: Progress in 2013 and recommendations for action’(Joint Staff Working Document) SWD (2014) 96 final 2; and European Parliament resolution of 17 July 2014 on Ukraine (2014/2717(RSP) [2016] OJ C224). 14 Council Decision 2014/386/CFSP of 23 June 2014 concerning restrictive measures in response to the illegal annexation of Crimea and Sevastopol, and Council Regulation (EU) No. 692/2014 of 23 June 2014 concerning restrictive measures in response to the illegal annexation of Crimea and Sevastopol, both in OJ 2014 L 183 (as amended). 15 Joint Action 2003/472/CFSP of 24 June 2003, OJ 2003 L 157/69; Council Decision 2003/874 of 8 December 2003, OJ 2003 L 326/49; K Zwolski, ‘The External Dimension of the EU’s Non-proliferation Policy: Overcoming Inter-institutional Competition’ (2011) 16 European Foreign Affairs Review 325, 330 and 334.

186 Research handbook on the EU’s common foreign and security policy to a Russian non-profit organization to enhance expertise on export control of dual-use items, and assistance to Georgia with border monitoring and detection of exports.16 In December 2003 the European Council endorsed two related documents prepared by the then High Representative for the CFSP, Javier Solana – a European Security Strategy and an Action Plan for the Implementation of the Basic Principles for an EU Strategy against Proliferation of Weapons of Mass Destruction.17 Both strategies were formulated in response to the failure of the EU to articulate a common policy in regard to the invasion of Iraq and also to the US National Security Strategy of 2002 – widely seen as articulating the Bush doctrine authorizing pre-emptive war against a range of threats. While recognizing the need to tackle the sources of the desire for WMD such as instability and conflict situations, the European Strategy emphasized practical steps which the EU should take. These included increasing participation in, and strengthening compliance and verification of, multilateral treaty regimes, enforcing export controls, interdicting international movement of prohibited materials, improving safeguards of WMD-related material and interdicting their international movement, and integrating these objectives into EU negotiations with non-member states. In succeeding years, all these methods have been systematically applied using the various tools – legal instruments and financial resources – offered by the CFSP. Every six months, the Council issues a Progress Report on the Implementation of the Strategy.18 Five years later the Council supplemented the Strategy by adopting Conclusions on new lines for action by the EU on combating the proliferation of WMD and their delivery systems.19 This noted the emerging risk of WMD being developed and used by terrorists. It sought to raise awareness of the threats among scientific and academic circles, to make greater use of consular cooperation and to assist non-member states to improve their export control procedures. 3.1 Successes with High-risk States – Libya and Iran In addition to the assistance to the former Soviet republics mentioned above, it can be said that the EU has made substantial contributions to non-proliferation objectives in the cases of Libya and Iran. In the case of Libya, the EC and then the EU from the mid-1980s applied sanctions that were more extensive than required under the Security Council Resolution in solidarity with the UK and France whose nationals had been direct victims of Libyan terrorism. Although Libya was a party to the NPT, it actively 16

See Council Six-Monthly Progress Reports on the Implementation of the EU Strategy OJ C 54, 296. 17 Council Doc. 10352/03, Conclusions of European Council, December 2003. The Strategy is analysed in House of Lords EU Committee 13th Report 2004–05, Preventing Proliferation of Weapons of Mass Destruction: The EU Contribution, HL Paper 96. For extensive analysis of the Strategy, with particular emphasis on the constitutional aspects, see P Koutrakos, ‘The Non-proliferation Policy of the European Union’ in M Evans and P Koutrakos (eds), Beyond the Established Legal Orders: Policy Inter-connections between the EU and the Rest of the World (Hart Publishing 2011). 18 See, for example, Council Docs. 2014/C 54, 25.2.2014, 2015/C 41, 5.2.2015, 2015/C 296, 8.9.2015. 19 Council Doc. 17172/08, 17.12.2008.

Non-proliferation of weapons of mass destruction 187 pursued a nuclear programme throughout the 1980s and 1990s, confirmed by inspection by the IAEA. In 2003 a German-owned vessel, the BBC China, was intercepted under the Proliferation Security Initiative (described below), taken to Italy and found to be carrying nuclear material supplied through the A.Q. Khan network.20 Confronted by hard evidence of deception and following intensive negotiations with the UK, Colonel Gaddafi on 19 December 2003 announced a decision to disarm and agreed that US and UK experts would remove and destroy illegally held equipment. In January 2004 it was agreed that US and UK experts would remove and destroy weapons and that this would be verified by the IAEA. Libya ratified the Comprehensive Test Ban Treaty in January 2004 and in March 2004 ratified an Additional Protocol to the NPT opening the way to more intensive inspections by the IAEA.21 Responding also to other measures taken by Libya to end its support for terrorism, the EU revoked sanctions on Libya going beyond those required by the Security Council in October 2004.22 There has been much criticism of wider actions – and inaction – by the EU in the context of the later collapse of the Gaddafi regime but it can certainly be said that the ensuing chaos would have been much worse had the stockpiles of WMD held earlier in Libya been appropriated by the various factions competing for power. Iran is where the EU has made its most high-profile contribution to containing the risks arising from proliferation of nuclear capacity. Iran’s programme of enrichment was for a number of years suspected of being capable of turning Iran in a relatively short time into an NWS. Iran consistently claimed that its activities were justified by its right under the NPT ‘to develop research, production and use of nuclear energy for peaceful purposes without discrimination’ – pursuant to which it intended to construct nuclear power plants over a 20-year period. In 2003, however, the Director-General, Mohamed El-Baradei, reported to the Board of Governors of the IAEA the existence of uranium enrichment facilities at Natanz which had not been declared to the Agency as required under Iran’s Safeguards Agreement. Under sustained pressure from the EU, Iran agreed to negotiate an Additional Protocol to its Safeguards Agreement, and the Foreign Ministers of France, Germany and the UK visited Iran to try to resolve the issues. Under the informal settlement reached, Iran agreed to suspend further enrichment and reprocessing, and the EU Ministers stated that dialogue would open on wider cooperation, including security guarantees and the possibility of a nuclear-free zone in the Middle East. After a further visit by the EU High Representative for the CFSP, Javier Solana, Iran suspended enrichment to the provisional satisfaction of the IAEA and on 18 December 2003 signed an Additional Protocol which it implemented in advance of ratification.23 20

See D Albright and L Hinderstein, ‘Uncovering the Nuclear Black Market: Working Toward Closing Gaps in the International Nonproliferation Regime’, paper prepared for the Institution of Nuclear Materials Management 2004 Annual Meeting; Bronwen Maddox Briefing, The Times, 13 February 2004; G Corera, Shopping for Bombs (OUP 2006), esp. chs 5 and 8. 21 ‘Contemporary Practice of the United States’ (2004) 98 American Journal of International Law 195, (2005) 99 American Journal of International Law 195; The Times, 29 May 2004. 22 Council Common Position 2004/698/CFSP of 14 October 2004, OJ 2004 L 317/40. 23 This episode is described in detail in T Cronberg, Nuclear Multilateralism and Iran: Inside EU Negotiations (Routledge 2017). Iran has still not ratified the Additional Protocol.

188 Research handbook on the EU’s common foreign and security policy In September 2004, however, the IAEA Board of Governors concluded that Iran had failed to observe these commitments and called for immediate suspension by Iran of all enrichment-related activity. The EU joined the US in threatening to refer Iran’s activities to the UN Security Council but the Foreign Ministers of France, Germany and the UK expressed to Iran readiness to conclude a wider and more generous agreement in exchange for full transparency and a halt to enrichment. The Paris Agreement concluded in November 2004 between Iran on the one hand and France, Germany and the UK, with the support of the EU, on the other, implemented this offer and included commitments on the EU side to resume the suspended negotiations for a Trade and Cooperation Agreement, to support Iran’s accession to the World Trade Organization and to join forces in fighting terrorism and in supporting the establishment of a constitutionally elected government in Iraq.24 In June 2005, however, Iran elected President Ahmadinejad, who quickly rejected the Paris Agreement, resumed enrichment at the Uranium Conversion Facility in Isfahan, and described a further European offer as ‘an insult to the Iranian nation’.25 In September the IAEA Board agreed to refer Iran’s conduct to the Security Council.26 The following month, President Ahmadinejad called for Israel to be ‘wiped off the map’, and Iranian Ambassadors to France, the UK, Germany and the UN (among others) were dismissed from the diplomatic service.27 The IAEA voted to report Iran to the UN Security Council, and in response Iran withdrew from the Additional Protocol – which it had not yet ratified. The Security Council was not then ready to impose sanctions on Iran but a statement was sent by the five permanent members plus Germany giving Iran 30 days to show that its nuclear programme was as peaceful as claimed. The US joined the diplomatic efforts where the EU had already taken the lead – offering direct talks with Iran for the first time since 1979 (when the hostages were detained in the US Embassy) as well as technical assistance and a guaranteed supply of nuclear fuel.28 In July 2006 the Security Council, acting under Chapter VII of the Charter, required Iran to suspend all uranium enrichment and reprocessing, and from that point Iran could no longer rely on its rights under the NPT, on the inconsistency of the conduct of the US, the UK and France, or on their failure to carry out meaningful disarmament as required by the NPT, but was in clear breach of international law by continuing and later extending its activities.29 The Security Council in response to Iran’s continuing

24

Iran’s Nuclear Programme: A Collection of Documents, Cm. 6443; Report of the IAEA Director-General 15.11.2004, GOV 2004/03; E Denza, ‘The EU, Iran and Non-proliferation of Nuclear Weapons’ (2005) 10 European Foreign Affairs Review 289, 301–311. 25 The Times, 10, 12 and 15 August 2005. IAEA Resolution of 11 August in Doc. GOV/2005/64. 26 Joint statement by the Foreign Ministers of the UK, France and Germany and the EU High Representative, 22 September, published in The Wall Street Journal; The Observer, 25 September 2005. 27 The Times, 29 October 2005, 2 November 2005 and 4 January 2006. 28 The Times, 31 March 2006, 1 June 2006, 7 June 2006. 29 UNSC Res 1696 (31 July 2006); DH Joyner, ‘Why Less is More: Law and Policy Considerations on the Iranian Nuclear Issue’ (Harvard Law and Policy Review, 23 October

Non-proliferation of weapons of mass destruction 189 enrichment imposed wider sanctions on Iran’s export of arms and on financial assistance to Iran and froze the assets of more individuals.30 While the US and Israel refused to rule out the use of force to destroy Iran’s nuclear facilities, the EU, while implementing wider sanctions than those required by the UN, continued to express the readiness of its High Representative to work for a diplomatic solution.31 The election of President Obama opened the way to direct though largely discreet negotiations in which the US – which harboured the greatest suspicions of Iran’s activities and which held the most attractive carrots as well as the most persuasive sticks – took the lead. There was, however, continuing and constant support (and pressure) from the EU. This wider support offered cover to the US and to Iran, both of which for historical reasons found it difficult to be seen to engage in bilateral relations. In November 2013 the negotiations between Iran and the Permanent Members of the Security Council (the P5), Germany and the EU resulted in a provisional deal in Geneva. Iran undertook to halt uranium enrichment above 5 per cent purity, to dilute or transform uranium stockpiles enriched above that level and – for the first time in eight years – to open its facilities to intensive IAEA inspection. On the other side there was a commitment not to impose new sanctions and some relaxation of sanctions on precious metals and on oil. If Iran was fully compliant, talks on a permanent arrangement would begin after six months.32 The final deal – a non-binding Joint Comprehensive Plan of Action (JCPOA) – was concluded in July 2015. The non-binding nature of the deal avoided the need for the US Senate to give positive approval (though other complex constitutional procedures did offer Congress an opportunity to block it). The commitments on both sides in the 2013 deal were extended, there was an elaborate timetable for implementation, which would require IAEA confirmation that Iran had taken the key steps required, and oversight by a Joint Commission as well as a ten-year ‘snapback provision’ enabling the Security Council effectively to re-impose sanctions on Iran on the demand of only one of its permanent members. President Obama made clear that the snapback provision was the real guarantee of Iran’s compliance with the JCPOA. He made no claim that the deal would result in any improvement in Iran’s human rights performance or lessen its destabilization activities in Syria or Yemen, but said that it would ‘result in cutting off all four pathways Iran could use to develop enough fissile material for a nuclear weapon’.33 2010) available at http://harvardlpr.com/online-articles/why-less-is-more-law-and-policyconsiderations-on-the-iranian-nuclear-issue/. 30 UNSC Res 1747 (24 March 2007). Later UNSC Resolutions over the next few years reaffirmed and extended sanctions on Iran. 31 Conclusions of the European Council, 17.6.2010, Annex II; The Times, 12 June 2010; T Sauer, Coercive Diplomacy by the EU: The Case of Iran (Netherlands Institute of International Relations, ‘Clingendael’ 2007); M Tocha, ‘The EU and Iran’s Nuclear Programme: Testing the Limits of Coercive Diplomacy’, EU Diplomacy Papers 1/2009. 32 The Times, 26 November 2013. 33 The Times, 15 July 2015; ‘Contemporary Practice of the US relating to International Law’ (2015) 109 American Journal of International Law 649, 874; (2016) 110 American Journal of International Law 347; S Blockmans, ‘The Nuclear Deal with Iran: Le Moment Suprême?’, CEPS Commentary, 16 July 2015.

190 Research handbook on the EU’s common foreign and security policy The JCPOA was met with suspicion and hostility, particularly in Israel, Saudi Arabia and the US, where there were strenuous attempts to block it. In January 2016 the IAEA confirmed Iran’s compliance – so opening the way to the dismantling of nuclear-related sanctions. The EU High Representative, Federica Mogherini, and the Iranian Foreign Minister issued a joint statement saying that ‘with political will, perseverance and through multilateral diplomacy, we can solve the most difficult issues and find practical solutions that are effectively implemented’.34 Thirteen years elapsed between the decision by the EU to engage Iran at the highest level in a sustained diplomatic effort to contain the risks to nuclear non-proliferation arising from its activities and ambitions and the full verification and implementation of the final deal. As with most foreign relations initiatives, success took a very long time and readiness to accept many setbacks. The EU was able to deploy political and economic carrots at the outset and was ready to engage with Iran at a time when the US could not do so, and this helped the US to move away from its historically understandable refusal to negotiate directly with Iran.35 When agreements patiently negotiated were flouted and further offers were contemptuously rejected, the EU continued to insist on the possibility of further diplomacy rather than retaliating and threatening even tougher sanctions or the use of force. It was ready to pass the baton to the US when the ground had been prepared and the US showed itself willing to assume primary responsibility. It showed sensitivity to the preoccupations of Iran, worked in close cooperation with the IAEA and later made effective use of Security Council powers. Taken as a whole it was a good example of action through collective diplomacy, which could not have been achieved by any one of the states acting alone. The EU bears a continuing responsibility for the implementation of the JCPOA since under its terms the High Representative is coordinator of the supervisory Joint Commission. In May 2016, responding to Iranian complaints that lifting of sanctions had been imperfect, the EU and the US issued a joint statement emphasizing that the JCPOA did not extend to sanctions unrelated to Iran’s nuclear development programme.36 The EU, and France and the UK in particular, have sought to restrain President Trump from carrying out his campaign threat to ‘tear up or rewrite the agreement’ and have contradicted his suggestions that it is not being honoured by Iran. The UK Foreign Secretary has told the US Congress that it was vital to preserve the deal.37

34 The Observer, 17 January 2016; European Council Press Release, 16 January 2016. For extensive analysis of the JCPOA, its operation and wider implications, see S Blockmans, A Ahteshami and G Baghat (eds), EU-Iran Relations after the Nuclear Deal (CEPS e-book 2016); DH Joyner, Iran’s Nuclear Program and International Law (OUP 2016) esp ch. 7. 35 A Cottey, ‘The EU’s Non-proliferation Strategy Ten Years On’ (2014) 19 European Foreign Affairs Review 45, 57–59. 36 US Department of State Press Release, Statement by France, Germany, UK, US and the High Representative of the EU for Foreign Affairs and Security on Post-JCPOA Business with Iran (2016) 110 American Journal of International Law 789–795. 37 The Times, 17 January 2017, 1 February and 10 November 2017.

Non-proliferation of weapons of mass destruction 191 3.2 Failures with High-risk States: North Korea and Syria By the terms of the 1992 Joint Declaration of the Denuclearization of the Korean Peninsula, both North and South Korea agreed not to ‘test, manufacture, produce, possess, store or deploy, or use nuclear weapons’. They undertook to use nuclear energy for peaceful purposes and not to possess reprocessing or uranium enrichment facilities.38 North Korea had become a party to the NPT in 1985 – motivated by the need to secure nuclear energy – and concluded a Safeguards Agreement with the IAEA in 1992 on the basis of assurances from the US and from South Korea that no NPT Party would deploy nuclear weapons on the Korean peninsula. In 2003, however, it withdrew from the NPT, citing a ‘serious threat’ from the US in the form of breach of undertakings to provide reactors and oil shipments, though at first it said that its activities would continue to be limited to peaceful purposes. For some time there was uncertainty as to whether North Korea possessed nuclear weapons but evidence emerged of assistance to it being given by the A.Q. Khan network, and in 2006, 2009, 2013, 2016 and 2017 it carried out nuclear tests which have provided evidence of its growing capacities both in regard to bombs and in regard to means of delivery.39 In response, the Security Council has under Chapter VII of the Charter imposed comprehensive sanctions on North Korea.40 The EU has gone beyond the requirements of the Security Council sanctions and has terminated financial assistance to North Korea. The sanctions have, however, had no impact in terms of influencing its defiant behaviour – largely because of the limited dependence of the country on imports and the willingness of its government to inflict severe suffering on its people. Nor have attempts at compromise under the Six Power Talks among North and South Korea, the US, Russia, Japan and China had any detectable success. The EU by virtue of Euratom competence became a member of the Korean Peninsula Energy Development Organization (KEDO) – a body set up to assist North Korea to build nuclear reactors for peaceful purposes but whose activities have largely been discontinued. It was not invited to participate in the Six Power Talks – which were dismissed as no longer necessary by North Korea in 2009.41 EU statements of condemnation can be said to have had no effect whatsoever.42 Years of threats from the US have had no greater effect – and the US is constrained by the fact that any use of force would probably lead to retaliatory annihilation of its ally South Korea. In September 2016 North Korea launched three ballistic missiles with a range of 800 38

33 ILM 569 (1994). C Moxley, ‘The Sword in the Mirror – the Lawfulness of North Korea’s Use and Threat of Nuclear Weapons Based on the United States’ Legitimization of Nuclear Weapons’ (2004) 27 Fordham International Law Journal 1379; Corera (n 20) 166–167; The Times, 15 April 2009, 26 May 2009, 9 February 2016, 28 April 2016. 40 See, in particular, UNSC Res 1874 (2009), which requires North Korea to return to its commitments under the NPT and Safeguards Agreement. On the legal implications of the withdrawal and of the Security Council’s demand for North Korea to re-accede, see DH Joyner and M Roscini (eds), Non-proliferation Law as a Special Regime (CUP 2012) 151–169. 41 C Portela, ‘The EU’s Evolving Responses to Nuclear Proliferation Crises: from Incentives to Sanctions’ (2015) EU Non-Proliferation Paper 46. 42 See, for example, statement by High Representative Mogherini on 6 January 2016. 39

192 Research handbook on the EU’s common foreign and security policy miles in the direction of Japan – with no apparent purpose other than to send a defiant signal to the G20 leaders, and in particular the leaders of South Korea, the US and Japan, then meeting in China.43 A few days later, following a fifth test, it claimed to have developed a nuclear weapon small enough to be mounted on one of its ballistic missiles.44 In May 2017 outside experts endorsed a claim by North Korea that a missile which it had just successfully tested was an intermediate-range missile capable of carrying a heavy nuclear warhead.45 Some EU Member States as well as the EU itself attach importance to retaining diplomatic missions in North Korea for delivery of humanitarian aid. Many states – and China in particular – are alarmed at the prospect of total collapse of North Korea as a state because of the impact of consequential flows of refugees and the difficulty of securing North Korea’s massive arsenal of nuclear weapons. China has demanded that North Korea desist from behaviour which worsens the situation, Russia and the UK have said that Security Council sanctions should be extended and enforced – but Kim Jong Un gives no outward sign of being frightened. Syria is a case where international action – led by a Framework Agreement between the US and Russia – appeared for a time to have had some success in limiting stockpiles of chemical weapons. The Security Council in 2013 required Syria to declare and destroy its stockpiles of these weapons.46 Syria – which had admitted possession of chemical weapons and sought to justify this as a deterrent to possible nuclear attack from Israel – became a Party to the Chemical Weapons Convention in October 2013. The OPCW became responsible for monitoring the identification and elimination of Syria’s chemical weapons. The EU committed 17 million euros by way of assisting the OPCW in its task – providing armoured cars and satellite imagery for the first phase of identification and contributing to a trust fund in support of the later phases. Syrian assets blocked under EU sanctions legislation were used for the project.47 The EU has more recently suggested use of these assets to finance verification and destruction of chemical weapons but the Syrian government has not agreed to this.48 In June 2014 the shipping-out of chemical weapons was declared to be complete, although suspicions remained that Syria’s disclosures fell short of being comprehensive. The Security Council in 2015 set up a Joint Investigative Mechanism (UN and OPCW) to investigate allegations of use of chemical weapons prohibited by the CWC.49 In August 2016 a three-person Leadership Panel reported back to the Security Council on behalf of the Joint Investigative Mechanism that after investigation of a number of cases of suspected use of chlorine gas it had found sufficient evidence of such use in three cases. Two of these it attributed to the Syrian air force and one to ISIL. Responsibility for the attacks was denied by Russia and by Syria – but the finding 43

The Times, 6 September 2016. The Times, 10 September 2016. 45 The Times, 16 May 2017. 46 UNSC Res 2118 (27 September 2013). For detailed analysis of events, see Krutsch, Myjer and Trapp (eds) (n 5) 689–701. 47 Council Decisions 2013/726/CFSP OJ L 329/41; 2014/74/CFSP OJ L 40/63. 48 Statement on behalf of the EU by the Special Envoy for Disarmament and NonProliferation at the 22nd OPCW Conference, 27 November 2017. 49 UNSC Res 2235 (2015). 44

Non-proliferation of weapons of mass destruction 193 confirmed that earlier disclosures by Syria were incomplete.50 Suspicions of withholding chemical weapons were confirmed in April 2017 when the Syrian air force used sarin gas against civilians. The violation of obligations under the CWC and Security Council Resolution was almost immediately condemned by Federica Mogherini, EU High Representative, who said that President Assad bore ‘primary responsibility’.51 When the Security Council failed to agree on a response, the attack was countered three days later by a US airstrike against the airfield from which the offending planes had taken off.52 In February 2018 a leaked report to the Security Council from the OPCW disclosed that 40 shipments of essential components enabling the 2017 sarin attack had been supplied to Syria from North Korea.53 3.3 Non-participating States: India and Pakistan India is one of the most difficult challenges for the EU policies on non-proliferation. Originally a state strongly committed to disarmament and a ban on nuclear testing, it declined to join the NPT because of its approach of discriminating between the states which already had nuclear weapons and the others. In 1974 India carried out its first nuclear explosion. It claimed that this was entirely for peaceful purposes, but this claim was not universally accepted. India carried out a further test and declared itself a nuclear weapon state in 1998, and very shortly afterwards Pakistan – also a non-party to the NPT – followed suit by carrying out a nuclear test. Since acquiring nuclear weapons, India has sought to participate in those arrangements which it sees as economically useful, while making clear that it has no intention of giving up its weapons in order to accede to the NPT as an NNWS. It has consistently refused to accept the inclusion of the EU’s clause (described below) requiring adherence to the main international conventions forming the framework for non-proliferation efforts. It claims special treatment on the grounds that since 1998 it has observed a moratorium on nuclear testing on a voluntary basis, has an explicit policy of no-first-use of nuclear weapons, observes faithfully those conventions to which it is a party and enforces effective export controls. In 2006 its efforts succeeded in that the US concluded an agreement – later ratified after much argument and special concessions in Congress – which authorized the US to provide assistance to civilian nuclear power development in India. Fourteen of its nuclear reactors were to be irreversibly classed as civilian and opened to IAEA inspection under a special Safeguards Agreement. The remaining eight reactors were to be shielded from inspection. India would continue its freeze on nuclear testing. India’s first nuclear explosion in 1974 led to the formation of the Nuclear Suppliers’ Group (NSG) – an informal regime which seeks strict control of nuclear exports to prevent 50

The Times, 26 August 2016. Al Arabiya, 4 April 2017. 52 ‘The US Air Strike after the Use of Chemical Weapons in Syria’, The Times, 6, 8 and 11 April 2017. For analysis of possible legal justifications for the US response, see M Hayashi, (2017) 21(8) ASIL Insights. The President of the EU Commission stated that the repeated use of chemical weapons must be answered and that the airstrikes ‘seek to deter further chemical weapons atrocities’: Press Release on the situation in Syria, 7 April 2017. 53 The Times, 28 February 2018; BBC News, 28 February 2018. 51

194 Research handbook on the EU’s common foreign and security policy non-proliferation, and membership of which is restricted to parties to the NPT. In 2008 India strengthened its special status through the grant of a waiver of NSG restrictions on India – which opened the way to activation of the deal with the US. Austria and Ireland, alone among EU Member States, opposed the waiver but gave in when India confirmed its assurances that it would not test nuclear weapons. EU Member States have remained divided on these developments, which in effect give India the benefits of NWS status without the need to disarm. France and the UK have nuclear cooperation agreements with India and are generally sympathetic to its position and its objectives, but to others it is unacceptable that India remains indefinitely outside the network of formal non-proliferation agreements while sharing benefits intended to be conditional on formally accepting their reciprocal constraints. It appears to be accepted that there is no realistic possibility of amending the NPT to extend the list of NWS because of the precedent this would set and the difficulty of drawing any wider boundary. In consequence, the EU has assumed a position of silence on the issues – which do not feature either in its regular reports on the WMD Strategy or in bilateral arrangements such as the Joint Action Plan of 2008. The record of the EU-India Summit on 30 March 2016 does not even mention WMD. There is justified criticism that this privileged treatment discriminates against states such as South Africa, Argentina and Brazil, which gave up nuclear ambitions in order to secure similar benefits under the NPT.54 Pakistan, like India, began with a strong aversion to acquiring nuclear weapons, but changed its approach in the wake of the secession of East Pakistan, which became independent as Bangladesh in 1971 with the military support of India. The new President Bhutto had already promised: ‘If India builds the bomb, we will eat grass or leaves, even go hungry, but we will get one of our own. We have no other choice.’55 The clandestine development of nuclear bombs received crucial support both from the Pakistani scientist A.Q. Khan, whose work for the international consortium URENCO in the Netherlands enabled him to steal secrets necessary to master the technology of enriching uranium, and also from China.56 Over the years Pakistan has made several concessionary overtures to India with a view to reciprocal disarmament or joint participation in relevant international agreements – such as simultaneous adherence to the NPT – but these have all been rebuffed. The prime ministers of India and Pakistan did, however, agree to continue a moratorium on nuclear testing in 1999, they have set up a hotline to warn one another of accidents which could be misconstrued as attacks, and they warn each other of impending missile tests. Because the stance of Pakistan is so closely dependent on that of India, the EU appears to have concluded that there is little point in pursuing the question of nuclear capability separately with Pakistan, and it does not feature in any account of EU–Pakistan relations. Pakistan is a party to the CWC and to the BWC. 54 The Times, 3 March 2006, 8 September 2008; B Rienzle, ‘Integrating Without Quite Breaking the Rules: The EU and India’s Acceptance Within the Non-proliferation Régime’ (Non-Proliferation Paper No. 43, EU Non-Proliferation Consortium 2015); Joyner (n 3) 37–40. 55 Corera (n 20) 9. 56 ibid, c 1; Joyner (n 3) xviii–xix.

Non-proliferation of weapons of mass destruction 195 3.4 Non-participating States: Israel Israel is generally believed to have possessed nuclear weapons since 1966 but has always followed a policy of ‘deliberate ambiguity’ or ‘opacity’. In 1966 Israel stated that it would ‘not be the first to introduce [nuclear weapons] into our region’.57 It appears to construe the word ‘introduce’ as comprising testing or publicly acknowledging. It regards its stance as an absolute guarantee of Israeli security and does not accept the possibility of other states in the region acquiring nuclear weapons. In pursuit of this policy it has carried out pre-emptive strikes against nuclear facilities in Iraq (Osirak) in 1981 and in Syria in 2007, claiming self-defence as a justification. There are wide discrepancies in estimates of the number of weapons it possesses, but it is undisputed that it has the means of effective delivery. It is not a party to the NPT or to any of the other key international conventions. It maintains high levels of secure export control without participating in the Australia Group.58 Israel supports the concept of a nuclear-free zone in the Middle East, while making clear that active steps to secure it must follow the establishment of a comprehensive regional peace settlement. EU external policy is strongly committed and active in its support for the Middle East Peace Process, and the EU appears to have accepted the immutability of the Israeli position to the extent that there is no attempt to raise the question of WMD in any bilateral forum such as the EU-Israel Action Plan or any mention of it in its six-monthly reports on the EU Strategy on WMD.

4. LONGER-TERM EU ACTION The EU now divides its priorities in the area of non-proliferation of WMD into four main categories – strengthening the international system of agreements, pursuing universal participation in these agreements, reinforcing compliance, and cooperating closely with key partners in the fight. These reflect the objectives identified in the 2003 EU Strategy, and confirmed in the Global Strategy for the EU’s Foreign and Security Policy in 2016.59 4.1 Strengthening the International System The highest priority is given to securing the entry into force of the CTBT. The Treaty was adopted by the UN General Assembly in 1996 and – in contrast to the NPT – the prohibition on all nuclear testing is universal and non-discriminatory. Although 164 57

Statement by Prime Minister Levi Eshkol to Israel’s Knesset, 18 May 1966, confirming assurance given to US in Memorandum of Understanding of 10 March 1965, printed in Foreign Relations of the United States 1964–68, doc. 185. 58 A Cohen, The Worst-Kept Secret (Columbia University Press 1998); N Gordon in Al-Jazeera, 13 December 2013. 59 ‘Shared Vision, Common Action: A Stronger Europe, a Global Strategy for the European Union’s Foreign and Security Policy’, EEAS 28 June 2016. It is suggested by Lars-Erik Lunden that following this Strategy there should now be a further EU Strategy specific to WMD, see (2017) EU Non-Proliferation Consortium Paper 58.

196 Research handbook on the EU’s common foreign and security policy states have ratified, further ratification by eight of the states specifically listed in Annex II is necessary to bring the CTBT into force. Three of these – North Korea, India and Pakistan – have never signed. The US, China, Egypt, Iran and Israel signed but have never ratified. To some extent they take cover under the failure of the US to ratify following early rejection of the Treaty by the US Senate. However, the US implements a moratorium on nuclear testing and President Obama in 2009 committed himself to seeking Senate advice and consent a second time. There is little sign of success from EU diplomatic efforts to bring the Treaty into force. The Treaty, however, has been influential to the extent that only North Korea has actually carried out nuclear tests in recent years, and these have been monitored, verified and reported to the Preparatory Commission of the CTBT. The EU offers financial support to states signatories to enable them to strengthen their capabilities in detection, as well as support for training and education programmes hosted by the Preparatory Commission.60 A long-standing objective is the Fissile Material Cut-off Treaty,61 which would ban production of fissile material for nuclear weapons without limiting production for peaceful purposes, and would complement the NPT and the CTBT. Negotiations were endorsed by the UN Conference on Disarmament and a group of experts was established but progress was at first blocked by US refusal to accept international verification procedures. The US has recently indicated readiness to accept verification but active negotiations are now blocked by Pakistan, which has taken the position that any treaty would specifically target Pakistan (whose stocks are significantly lower than those of India). Although there was some support among EU Member States for freezing development aid to Pakistan, there has never been the necessary agreement for deploying tough measures – and as a non-party to the NPT, Pakistan is not in breach of any international obligations.62 The EU has consistently supported further negotiations both in General Assembly statements and in private lobbying, but without success. The EU has from the outset supported the Proliferation Security Initiative (PSI) launched by President Bush in Krakow in 2003 within the framework of the US National Security Strategy. If all states effectively implemented domestic and international rules on export controls on nuclear material and other items with the potential for use in WMD, the PSI would not be necessary, but given inevitable inadequacies or deceit, the system is designed to enable states with intelligence relating to suspect materials in transit by sea to intercept and seize them. The PSI has no binding international legal framework but operates as a multilateral political commitment within the framework of existing domestic and international legal rules. Participating states subscribe to a Statement of Interdiction Principles – sharing information on ships suspected of carrying WMD in their cargo, developing procedures for swift authorization of interception of such ships with necessary consent, and searching and taking 60

Cottey (n 35) 52–53. Detail of the EU support is set out in Council Decisions 2012/699/CFSP, OJ 2012 L 314/27 and 2014/C 54, OJ 2014 C 54. See statement by EU High Representative Mogherini at Vienna gathering to mark 20th anniversary of CTBT opening for signature, 6 January 2016. 61 Treaty banning the production of fissile material for nuclear weapons or other explosive devices. 62 Cottey (n 35) 56.

Non-proliferation of weapons of mass destruction 197 enforcement action. Seven EU Member States were among the original ‘core members’ of the scheme – which now has 105 participating states notwithstanding some criticism of its legality. The interception of WMD destined for Libya – described above – was an early example of its successful use and there have been numerous others.63 4.2 Pursuing Universal Participation in WMD Conventions The EU now seeks inclusion in all mixed bilateral international agreements of a clause requiring the parties (in effect the non-member state) to comply with their existing obligations under the core treaties on non-proliferation and to implement these treaties effectively in domestic law, to take steps to become parties to those treaties by which they are not already bound, and to set up and maintain an effective system of national export and transit control of WMD-related material. The general commitment to non-proliferation is described as an ‘essential element’ of the agreement – so opening the way in the event of default to suspension by the EU and its Member States of their reciprocal undertakings – and the more precise undertakings may be made an ‘essential element’ on a case-by-case basis.64 Because of the limited EU competence in the area, the clause is not proposed in free trade agreements to be concluded by the EU acting alone. As stated in the Progress Report covering the first half of 2015, ‘[t]he negotiations contribute to awareness raising of the EU’s policy on non-proliferation and disarmament and provide a forum to increase mutual understanding of relevant provisions, identify areas for future cooperation and to encourage partner countries to make concrete headway with regard to the international non-proliferation regime’.65 The clause has been included in an impressive number of agreements – but finds its limits in the context of negotiations with high-risk states. India, Pakistan, Syria, Russia and China – to take obvious examples – have not been prepared to accept EU supervision of their policies regarding non-proliferation.66 The obstacles to insisting on the clause in dealings with high-risk states, and even with states such as South Korea and Canada with reliable records of pursuit of non-proliferation objectives, are political, legal and sometimes humanitarian, but the most important go to the reluctance of sovereign states to accept external monitoring of their decisions to accept or reject treaties or to apply effective internal rules of enforcement.67

63

M Byers, ‘Policing the High Seas: The Proliferation Security Initiative’ (2004) 98 American Journal of International Law 526; D Guilfoyle, ‘The Proliferation Security Initiative: Interdicting Vessels in International Waters to Prevent the Spread of Weapons of Mass Destruction’ (2005) Melbourne University Law Review 23. For analysis of the legal and practical difficulties with the scheme, see Joyner (n 3) ch 8. 64 The model clause, first developed in the context of the EU Strategy of 2003, is in Council Doc. 14997/03, 19 November 2003. 65 2015/C 54, OJ 2015 C 296, para 10. 66 Cottey (n 35) 53–57. 67 For analysis of these difficulties, see L Grip, ‘The EU’s weapons of mass destruction non-proliferation clause: a ten-year assessment’, EU Non-proliferation Consortium Nonproliferation Papers No. 40/2014; Portela (n 41).

198 Research handbook on the EU’s common foreign and security policy The Council Joint Actions adopted in 2006 and 2012 in support of the Biological and Toxin Weapons Convention68 reflect another initiative aimed at securing universal participation in that Convention as well as effective implementation of its requirements in domestic law. These Joint Actions were adopted within the framework of the 2003 EU Strategy against Proliferation of WMD and in advance of successive Review Conferences of the Convention. They envisage provision of legal and technical support for individual states as well as the organization of regional seminars and conferences to promote awareness of the Convention. 4.3 Reinforcing Compliance There are two aspects to enforcing compliance with the NPT – first, moving towards implementation by the NWS of their commitments to taking effective measures towards nuclear disarmament and, secondly, strengthening the practical efficacy of the safeguards system and of export controls. It is in regard to the first aspect that the sharp divisions between the capacities and the policies of the Member States make it impossible to formulate a constructive common European position. The differences on disarmament are not simply between the UK and France as NWS and the other Member States as NNWS. Austria, Ireland, Sweden, Finland, Cyprus and Malta are now strongly committed to the Humanitarian Initiative, which claims new evidence of the catastrophic impact of any use of nuclear weapons in populated areas and seeks greater momentum towards the disarmament objective which was fundamental to the bargain enshrined in the NPT.69 France and the UK regard this Initiative as a distraction from practical steps towards reductions in nuclear arms. Germany, Poland and the Netherlands are committed to the Non-proliferation and Disarmament Initiative – a cross-regional group which also includes Australia, Canada and Japan among others and seeks to find common ground between the NWS and the NNWS.70 Every five years the NPT is reviewed by a Conference of the Parties, an assessment made of progress towards its objectives, and plans made for its future. The links between individual Member States or groups with wider international consortia were in the context of the 2010 Review Conference regarded as helpful in securing a useful outcome for the objectives agreed collectively in the context of formulating the EU common position.71 By 2015, however, disillusionment with the slow progress towards nuclear disarmament by the NWS had come to assume greater prominence among the preoccupations of the parties taking part in the Review Conference. Russia and the US argue that they have in fact made substantial progress towards nuclear disarmament in 68

Joint Action 2006/184/CFSP, OJ 2006 L 65/51; Joint Action 2012/421/CFSP, OJ 2012 L 196/61. 69 J Nielsen and M Hanson, ‘The European Union and the Humanitarian Initiative in the 2015 Non-proliferation Treaty Review Cycle’ (2015) EU Non-Proliferation Paper 41. 70 M Smetana, ‘Stuck on Disarmament: The European Union and the 2015 NPT Review Conference’ (2010) 92 International Affairs 137, 141. 71 M Dee, ‘Standing Together or Doing the Splits? Evaluating European Union Performance in the Nuclear Non-proliferation Treaty Review Negotiations’ (2012) 17 European Foreign Affairs Review 189, esp. 207–211.

Non-proliferation of weapons of mass destruction 199 terms of reducing the number of their missiles and their maintenance on a state of high alert, so reducing the risk of release through accident, sabotage or misunderstanding. Strategic arms limitation talks (SALT) began in 1969 between the Soviet Union and the US and under successive treaties there have been substantial reductions in warheads, missiles and bombers. The current treaty between Russia and the US, known as New START, entered into force in 2011 and will when fully implemented result in further limitations, though the 1,550 warheads and 700 missiles and bombers on each side falls well short of ‘complete nuclear disarmament’.72 The Treaty sets up a more effective verification regime permitting satellite, remote and on-site inspections. The US and Russia argue that the commitment in Article VI of the NPT is to negotiate towards a treaty securing universal nuclear disarmament under effective international control and that this is a long-term goal. The UK and France position is that unilateral measures would not enhance international security if the effect were to leave nuclear weapons as the sole prerogative of states such as Russia and China, which have in the last few years shown greater disregard for the rules of international law, and states such as India, Pakistan and North Korea, which have not taken even the first step of participation in the NPT. They also maintain that the non-proliferation obligations in the NPT are more fundamental than the disarmament obligations.73 Reflecting the fact that the majority of EU Member States are now members of NATO, the statement of the EU position by High Representative Mogherini at the 2015 Review Conference echoed the stance of the UK and France, arguing that progress towards universal disarmament should be made ‘through an overall reduction in the global stockpile of nuclear weapons’, with the primary responsibility placed on the states possessing the largest numbers of nuclear weapons, namely the US and Russia.74 The 2015 Review Conference was generally regarded as unproductive.

72

The Times, 2 April 2009. Their stance is supported by N White in Joyner and Roscini (eds) (n 40) 117–118, who claims that the NPT is no longer a contractual bargain but has become a constitutional treaty under which imbalance remains acceptable: ‘It is the acceptance of that inequality by other states (by becoming members of the UN or parties to the NPT), and by the fact that those instruments contain the rules and institutions necessary to try to ensure the survival of the planet, that give them their legitimacy as constitutional instruments’. See also the judgment of the International Court of Justice (and dissenting judgments) in the case Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v United Kingdom) 5 October 2016; UN Treaty on the Prohibition of Nuclear Weapons, October 2017. Not one of the nine states known or believed to possess nuclear weapons supported this treaty. 74 Statement made on 28 April 2015, available at eu-un.europa.eu/articles/en/article_16386_ en.htm; M Dee, ‘The EU’s Performance in the 2015 NPT Review Conference: What Went Wrong?’ (2015) 19 European Foreign Affairs Review 591, esp. 597–598. In October 2016 Russia suspended an agreement with the US requiring both parties to eliminate weapons-grade plutonium, claiming that the US method of implementation retained redeployment potential for the plutonium. President Putin indicated that the agreement could continue if the US met unrelated demands such as cancelling sanctions against Russia: The Times, 4 October 2016. 73

200 Research handbook on the EU’s common foreign and security policy 4.3.1 Strengthening safeguards All EU Member States are parties to Safeguards Agreements and Additional Protocols with the IAEA, and their implementation is verified by the European Commission Nuclear Safeguards Directorate in close cooperation with the IAEA. The EU has taken a number of measures with the objective of strengthening practical compliance by non-member states with high standards of safeguarding nuclear material in their territories – providing financial support to the IAEA, and to the G8 Global Partnership against the Spread of Weapons and Materials of Mass Destruction,75 urging conclusion by other states of Additional Protocols to the NPT, assisting them to improve their facilities for technical control, and suspending nuclear cooperation in the absence of assurances by the IAEA that its safeguarding standards are being met. Financing of improvements to safety of reactors in non-member states is currently undertaken under the Instrument for Nuclear Safety Cooperation adopted under Article 203 of the Euratom Treaty.76 The new instrument authorizes expenditure on safety of installations and radiation protection as well as safeguards and underpins cooperation with 20 states. It is used to fund support for Ukraine in its continuing efforts to limit the damage caused by the Chernobyl accident in 1986. Similar action is taken to ensure effective enforcement of the CWC and the Biological and Toxin Weapons Convention.77 4.3.2 Export controls The current EU rules for control of exports, including items in transit and dual-use items, are set out in Council Regulation 428/2009.78 This instrument took account of changes in EU policy on WMD, as well as updates to rules established in several informal international proliferation control groups – the Nuclear Suppliers Group, the Wassenaar Arrangement, the Missile Technology Control Regime and the Australia Group. There is constant review of the procedures applied and the items covered – particularly the dual-use items listed – and dialogue is maintained with non-member states on the efficiency of their controls.79

75

L Grip, ‘Assessing Selected European Union External Assistance and Cooperation Projects on WMD Non-proliferation’ (2011) EU Non-Proliferation Paper 6. The EU is the second-largest donor to the IAEA Nuclear Security Fund. 76 Council Regulation (Euratom) 237/2014, OJ 2014 L 77/109. The contribution of the European Parliament to the Regulation is described in L Grip, ‘The European Parliament and WMD Non-proliferation: Policy-making Processes and Decision-Making Outcomes’ (2013) 18 European Foreign Affairs Review 563, 578–579. 77 See, for example, Council Joint Action 2006/184/CFSP and Council Common Position 2006/242/CFSP, OJ 2006 L 65/51; Council Decision 2011/429/CFSP, OJ 2011 L 188/42; M Alvarez-Verdugo, ‘Mixing Tools Against Proliferation: The EU’s Strategy for Dealing with Weapons of Mass Destruction’ (2006) 11 European Foreign Affairs Review 417, 426–427. 78 OJ 2009 L 134. 79 See Progress Reports on the Implementation of the EU Strategy, in 2014, OJ 2014 C 54/9–10, and OJ 2015 C 41. Particular attention has been given recently to cooperation with China, Jordan and Kazakhstan.

Non-proliferation of weapons of mass destruction 201 Coordination and dialogue among research bodies and 65 European think tanks – as well as new projects – is supported by EU funding through an EU Non-proliferation Consortium operating since 2011.80 4.4 Cooperation With Key Partners Cooperation is most productive with the US – and in the case of Iran, described above, has produced important results. The EEAS Principal Adviser and Special Envoy for Non-proliferation and Disarmament – since 2013 the Polish diplomat and former Head of NATO’s WMD Non-Proliferation Centre Jacek Bylica – represents the EU in meetings of the IAEA, the G8 Non-proliferation Directors Group, at the UN General Assembly First Committee and at meetings of the supervisory bodies of the main international conventions. Non-proliferation is consistently integrated into political dialogue and informal contacts with all relevant non-member states.

5. CONCLUSIONS OF WIDER SIGNIFICANCE FOR CFSP Non-proliferation of WMD – as was stressed at the outset – is a multifaceted activity in which all the strands are of long-term importance and high-profile successes are very few. These are equally characteristics of the foreign policies of sovereign states. It is tempting to focus on some specific event which may be assessed as a ‘success’ or a ‘failure’ – such as the Review Conferences of the NPT – and to draw overall conclusions about EU policy without putting the event in the wider and longer-term context of more tedious activity or in the context of the inherent difficulty of the challenge. Certain conclusions may, however, be drawn from the selective account given above of what the EU has attempted and what it has achieved. The usefulness of EU strategies Strategies demonstrate the wide-ranging nature of the challenge of the WMD nonproliferation threat and the need for a multifaceted approach which uses financial as well as political incentives and sanctions. The regular Council reviews at six-monthly intervals enable dispassionate assessment of where progress has been made in all the relevant areas and open the way to a balanced appraisal of the objectives of the Strategy and to its possible revision.81

80 The enterprise is now based on Council Decision 2010/430/CFSP of 26 July 2010 establishing a European network of independent non-proliferation think tanks in support of the implementation of the EU Strategy against Proliferation of Weapons of Mass Destruction, OJ 2010 L 202/5, which lists current projects in its Annex. 81 On the procedure for preparing the Reviews and their merits in promoting interinstitutional collaboration, see Zwolski (n 15).

202 Research handbook on the EU’s common foreign and security policy Integration of initiatives with wider diplomacy The EU has been effective in using the wide range of tools at its disposal to achieve low-key successes – as with improving safeguards and export controls in states which may not appear obvious proliferators but where weak administrative systems make them a useful transit point for suspect items. Study of the channels used by the A.Q. Khan network illustrates the importance of this technical support work. The systematic inclusion of WMD clauses in EU and Member State agreements may appear to have been of limited value because high-risk states have been unwilling to subscribe to them – but the number of subscribing states has built up a pattern of awareness in foreign ministries of the multilateral instruments as well as a critical mass of general compliance with their terms. Readiness for the long haul with recalcitrant partners The multilateral settlement eventually reached with Iran – with its effective system of monitoring and safeguards against deception – shows the value of the EU’s willingness to persist with diplomatic negotiations even in the face of apparent contemptuous rejection. It is likely that – given the unhappy history of US–Iran relations and the consequent mutual suspicion – the US could not have embarked on serious negotiation with Iran had the European efforts not paved the way. Effectiveness of sanctions The record in the context of non-proliferation efforts shows that sanctions need to be assessed over a substantial period, since the initial political effect of imposing sanctions is usually to cause an unhelpful political reaction of resentment rather than a reappraisal of policy on the part of the targeted state. To succeed, sanctions usually need to be deployed in tandem with a range of incentives. The EU has the advantage over a single state of a wider range of potential sticks and carrots and of uniformity of enforcement which makes diversion more difficult if not impossible. Over the years, sanctions have been refined by the EU – not only to make them ‘smarter’ but also to address problems of injustice to individuals adversely affected. Method of representation There is no doubt that the deployment on behalf of the EU of a highly skilled and experienced arms control diplomat has produced effective results in this field. Both Annalisa Giannella on her appointment in 2003 by the High Representative Javier Solana and now Jacek Bylica (appointed in 2013) had highly impressive qualifications for the post of EU Special Envoy for Non-proliferation and Disarmament, which carried weight in multilateral bodies such as the G7 and the IAEA. The different nature of the separate strands of non-proliferation resulted in fragmentation of the policy between the Commission, which at the outset had the technical expertise as well as the financial resources, and the Council, which assumed the main role in diplomatic negotiations with disarmament aspects, and this led to difficulties between the two

Non-proliferation of weapons of mass destruction 203 institutions as well as some confusion on the part of non-member states.82 Although the establishment of the European External Action Service may smooth some of the problems, it will take some time before habits and loyalties are integrated among the disparate elements making up the relatively new service so as to enable a proper assessment to be made. There can, however, be no doubt that the central cause of the EU’s difficulty in making progress with the disarmament pillar of the NPT is due not to any inadequacy in its arrangements for representation but to fundamental differences of policy among the Member States, causing radically different approaches to new initiatives. Non-proliferation of WMD is a challenge of immense difficulty, complexity and importance – where the EU through the CFSP has assumed an increasingly important role. Given that WMD cannot be uninvented and that their components have many peaceful and beneficial purposes, the immediate objective should not be regarded as universal and complete disarmament but the limitation, control and containment of weapons so that they are never used in anger. It is now 70 years since at Hiroshima and Nagasaki nuclear weapons were used to end a war, and their actual use puts beyond any argument their terrible and long-lasting consequences. It is a significant achievement that in 70 years – covering 45 years of Cold War involving all the states which possessed these weapons – they have never again been used and that proliferation has been limited to the extent that only nine states are now generally acknowledged to have this power of mass destruction. So there is a continuing need to be fearful, vigilant and responsible – but also to have some hope and confidence that the policies reflected in the key international treaties, in the EU’s unremitting efforts to support, to enlarge and to enforce them, and in the national safeguard and monitoring laws have been the right ones. It follows from that assessment that EU policy should continue to be integrated with other aspects of the CFSP, that it should be acknowledged that discrimination between actual and potential possessors of WMD may be justified in the light of wider assessment of danger of their misuse, and that political focus should be directed towards achievable goals and towards the most obvious risks of misuse. Substantial progress has been made towards halting the testing of nuclear weapons – through the Partial Test Ban Treaty, the Comprehensive Test Ban Treaty and the general moratorium now observed by all states with the single exception of North Korea. To persuade India and Pakistan jointly to become parties to the CTBT, and the new government in Washington to ratify it, is an objective where the EU might, by giving the issue greater prominence and political investment, make a contribution – even if it is unlikely that the current Republican administration in Washington will make this a priority. The deal agreed with Iran was a major success against heavy odds, and – while it must continually be monitored – Iran may need to be reassured that it has to some extent opened the way to its re-integration into the international community. North Korea is clearly the most dangerous and intransigent threat and one where the EU cannot lead except perhaps by continuing to argue that the multifaceted approach, together with an 82 ibid. For extensive analysis of EU achievements and recommendations for further action, see I Anthony and L Grip, ‘Strengthening the EU’s Approach to WMD Non-Proliferation’ (2013) EU Non-Proliferation Paper 37.

204 Research handbook on the EU’s common foreign and security policy emphasis on patient diplomacy, have yielded dividends in other cases. The EU itself lacks incentives and threats likely to influence North Korea but this is not the case with China – and the US is actively trying to apply pressure on China to deploy them. China is conscientiously giving effect to UN sanctions imposed on North Korea but is resistant to measures going beyond these, which might lead to the collapse of the regime.83

83 See S Chull Kim and MD Cohen (eds), North Korea and Nuclear Weapons: Entering the New Era of Deterrence (Georgetown University Press 2017).

PART C THE NEXUS BETWEEN CFSP/CSDP AND OTHER EXTERNAL POLICIES

10. The law and practice of EU sanctions Christina Eckes*

1. INTRODUCTION EU sanctions play a very particular role in CFSP. On the one hand, they are measures of general application, i.e. a tool of EU foreign relations that serves general policy objectives; on the other, they are individualized decisions to interfere directly with the fundamental rights of specific persons. Sanctions are deployed with exceptional frequency. They are a forceful tool that impose directly applicable obligations on private parties. More case law exists on sanctions than on any other aspect of CFSP. This is subject to the caveat that the CJEU has so far predominantly reviewed measures that the EU takes under the TFEU to give effect to the CFSP sanctions rather than the CFSP decisions themselves.1 This chapter explains the unique nature of sanctions (Section 2), traces the implications of sanctions for other external action policies and fields of law (Section 3), examines the intrinsic tension between the political objectives of sanctions and their regulatory, administrative or even criminal character (Section 4), identifies new trends (Section 5) and makes recommendations on how sanctions should be improved (Section 6).

2. SANCTIONS ARE EXCEPTIONAL AMONG CFSP POLICIES Public policy can be defined as a set of ideas or principles, or a plan of what to do in particular situations that has been agreed to officially by a group of people, a government or a political party.2 The EU has at least the intention to adopt sanctions as a policy that is meant to follow preconceived principles and serves ex ante identifiable objectives.3 This is therefore the standard against which EU sanctions should be evaluated, even if they may very well be criticized for being fragmented, inconsistently applied and even adopted in a way that does not achieve equal treatment of similar cases. * The author would like to thank Minke de Haan for her research assistance. 1 The exception is the recent Case C-72/15 Rosneft Oil Company OJSC v Her Majesty’s Treasury EU:C:2017:236 and arguably Case C-355/04 Segi and Others v Council EU:C: 2007:116. 2 This definition draws from http://dictionary.cambridge.org/dictionary/english/policy. 3 See Council, ‘Guidelines on implementation and evaluation of restrictive measures (sanctions) in the framework of the EU Common Foreign and Security Policy’ (15 June 2012) http://data.consilium.europa.eu/doc/document/ST-11205-2012-INIT/en/pdf.

206

The law and practice of EU sanctions 207 2.1 Cross-Treaties Bridge EU sanctions do not fit easily amongst other CFSP policies. They consist of a peculiar combination of a CFSP decision, adopted under Title V of the TEU, and a TFEU regulation adopted pursuant to the TFEU. Indeed, Article 215 TFEU, the only legal basis that has so far been used for sanctions since the entry into force of the Lisbon Treaty, is the closest explicit link between TEU and TFEU. It is not a joint legal basis but a legal basis within the TFEU, which requires the prior adoption of a CFSP instrument as a ‘prerequisite for the validity of a regulation’.4 As a result, EU sanctions are adopted on a combination of legal instruments based on a legal basis from each Treaty, which puts the powerful legal instrument of a directly applicable TFEU regulation at the service of CFSP objectives. This is structurally peculiar in that it is an exception to the rationale of Article 40 TEU that the CFSP and policies under the TFEU should remain separate.5 2.2 Direct Rights Relevance of EU Sanctions EU sanctions play a particular role in CFSP in that they directly legally target individuals, i.e. natural and legal persons, and list them as supporting either a targeted political regime or terrorism. They also predetermine in every detail the adoption of directly applicable regulations under the TFEU, including the list of targeted persons. Accordingly, sanctions are a strand of CFSP with exceptional operational means. They can make use of measures adopted under the TFEU to target individuals and bind EU citizens and businesses. Already the adoption of the CFSP decision itself has fundamental rights consequences since it has a negative impact on the reputation of those sanctioned.6 Moreover, the CFSP decision of the Council, which is mirrored in the TFEU regulation, should be seen as the actual origin of the latter’s legal effects. This makes EU sanctions the only CFSP strand which by definition and directly legally affects the rights of individuals, including in a very severe manner. They name individuals and as a consequence immediately tarnish their reputation, even without any further action by banks or border agencies.7 This is different from, for example, CFSP decisions which mandate EU naval forces to target ‘pirates’ as a category of

4

Rosneft (n 1), para 55. C Eckes, ‘The CSFP and Other EU Policies: A Difference in Nature?’ (2015) 20 European Foreign Affairs Review 535. 6 C Eckes, EU Counter-Terrorist Policies and Fundamental Rights: The Case of Individual Sanctions (OUP 2009) chapter 5; C Eckes, ‘Annotatie, “Abdulrahim v Council and Commission [2013] Case C-239/12 P (28 May 2013) – Hof van Justitie van de Europese Unie (Grote Kamer)”’ (2013) 8 EHRC. 7 See e.g. the current list of singled-out individuals who allegedly are associated with the ISIL (Da’esh) and Al-Qaida organizations. Annex I to Council Regulation (EC) 881/2002, most recently amended by Commission Implementing Regulation (EU) 2017/700, 266th amendment OJ 2017 L 103/22. 5

208 Research handbook on the EU’s common foreign and security policy persons that take actions that make them fall into this category, while they are taking these actions.8 In the words of Advocate General Sharpston: ‘It is worth recalling that the consequences of listing are very serious. Funds and other financial assets of economic resources are frozen … for a person, entity or group that is named in the … list, normal economic life is suspended.’9 Other external action policies may interfere with fundamental rights.10 Yet usually this is a matter of either implementation or application, either by national actors or carried out under an EU banner. Rights interferences of the latter category usually still raise relevant questions of attribution before it can be established that the action was indeed an act of the EU. In the case of sanctions, attribution to the EU is unproblematic since the CFSP decision immediately labels those listed as supporters of a sanctioned regime or terrorism, as contributing to nuclear proliferation or as building concentration camps. They interfere with fundamental rights of individuals immediately by virtue of the legal act itself. 2.3 Jurisdiction Article 275 TFEU excludes the CJEU’s jurisdiction ‘with respect to the provisions relating to the [CFSP]’ and ‘with respect to acts adopted on the basis of those provisions’. Article 275(2) TFEU makes an exception to this exclusion. It stipulates exceptional judicial review by the Court of the legality of CFSP decisions providing for restrictive measures against natural or legal persons. Substantively this can be explained by the direct rights relevance of CFSP sanctions measures described above. Arguably this direct rights dimension is the substantive reason for introducing exceptional review of CFSP decisions that impose ‘restrictive measures against natural and legal persons’. Yet the CJEU held in the case of Rosneft that the jurisdiction of the CJEU under Article 275(2) TFEU should be interpreted to cover not only the specific measures against individualized persons, but also measures of general application to the extent that they prohibit everyone from economically supporting or interacting with the individualized persons on the list. The Court did not extend its jurisdiction under Article 275(2) TFEU to cover measures of general application unrelated to the list of targeted individuals, such as embargoes and trade restrictions on categories of products.11 This may be reasonable because of their close connection with individualized measures and because of their potential high impact on rights; yet this distinction also results in a fragmentation of jurisdiction over parts of a CFSP decision.12 8 See e.g. Council Joint Actions 2008/851/CFSP, on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast (Atalanta) OJ 2008 L 301/33 and the subsequent amendments. 9 Case C-599/14 P, Council v LTTE EU:C:2016:723, Opinion of AG Sharpston, para 102. 10 E.g. EUNAVFOR Med operation Sophia has the competence to board, search, seize and divert vessels suspected of being used for human smuggling or trafficking on the high seas. For recent activities see https://eeas.europa.eu/csdp-missions-operations/eunavfor-med_en. 11 Rosneft (n 1), paras 94–107, with the conclusion in para 107. See Chapter 4 in this volume. 12 ibid.

The law and practice of EU sanctions 209 Sanctions have been the subject of an exceptionally large number of rulings, both of the General Court and the CJEU. At the time of writing (June 2017), 181 cases on restrictive measures have been decided by the ECJ,13 94 of which have been successful.14 Sixty-four additional cases are pending before the GC.15 Ten appeals were brought to the ECJ in 2013 and 2014 only. Two appeal cases were decided in April 2016.16 This overview does not count cases that only relate to or refer to restrictive measures. However, until the case of Rosneft in 2017 these rulings all reviewed the TFEU regulations rather than the CFSP decision. The Court has agreed in settled case law to review the TFEU regulations, irrespective of whether they merely reiterate a CFSP decision.17 Because the TFEU regulations are in relevant parts prescribed by the underlying CFSP decisions, rulings on most aspects of the procedural and substantive legality of the regulation – even if they do not directly address the legality of the CFSP measure – will also carry great persuasive weight with regard to the legality of the CFSP decision. 2.4 The Actual Decision Takes Place Outside of the EU Legal Order Three types of EU sanctions can be distinguished: first, EU sanctions giving effect to UN Security Council Resolutions that impose sanctions, for instance the sanctions at stake in the Kadi case, implementing Security Council Resolution 1267; secondly, supplementary measures that are adopted by the EU and that are related to but go beyond UN sanctions, such as the autonomous EU sanctions against Iran and the Democratic People’s Republic of Korea focusing on the worsening of the human rights situation, which run parallel to and supplement the UN sanctions against the regimes of these countries; and thirdly, autonomous EU sanctions that are unrelated to a UN sanctions regime, for example autonomous counter-terrorist sanctions based on Common Position 2001/931/CFSP and the new ISIL (Da’esh)/Al Qaeda regime (Section 5.1 below).18

13 Information drawn from the EURLEX search engine in June 2017, at http://eur-lex. europa.eu. 14 ibid. Five in 2017, 16 in 2016, 18 in 2015, 24 in 2014, 21 in 2013, eight in 2012, two in 2010. Most restrictive measures so far have been annulled for infringing procedural rights, essentially because the Council did not produce the relevant evidence either to the targeted person or the EU Courts. This was found to be incompatible with the right to a fair hearing and the right of access to justice. It also breached the closely related obligation to state reasons. See Sections 4 and 5.4 below. 15 Information drawn from the CJEU’s search engine on 1 June 2017, at http://curia. europa.eu. 16 Case C-266/15 P Central Bank of Iran v Council EU:C:2016:208 and Case C-200/13 P Council v Bank Saderat EU:C:2016:284. 17 ibid, paras 105–106 on the close link between the CFSP decision and the TFEU regulation. 18 T Biersteker and C Portela, ‘EU sanctions in context: three types’ (European Union Institute for Security Studies, 17 July 2015).

210 Research handbook on the EU’s common foreign and security policy Where EU sanctions are adopted to give effect to UN Security Council Resolutions, the EU in principle faithfully follows all changes made to UN sanctions.19 If the UN Security Council Sanctions Committee adds a name, the Commission adds the same name. If the UN Sanctions Committee deletes a name, the Commission deletes that name.20 The UN Sanctions Committee lists persons and entities based on a statement of case submitted by a UN member state.21 It remains the choice of that state what information is made public.22 The information is routinely considered too sensitive to share even with the UN Sanctions Committee. Consequently, the Sanctions Committee often does not actually have information to share with the EU.23 In short, not only does the Commission not ask any questions, there are in fact no structures in which the EU could ask any questions about the substantive justification of UN listings. This external control over an EU policy is also a peculiarity of sanctions. 2.5 Level of National Disobedience The CFSP decision is directly binding on EU Member States and requires them to take the appropriate measures to give effect to its objectives. When CFSP Council decisions set out arms embargoes and travel bans, these measures are directly implemented at national level. By contrast, asset freezes and export bans, i.e. economic measures, are an EU competence. They are implemented by EU regulations. Nonetheless, 16 of the 27 Member States continue to adopt parallel financial sanctions within the framework of their national legislation,24 which are often identical to the EU lists.25 Some national 19

See, e.g., Council Implementing Regulation (EU) 2017/199 implementing Council Regulation (EC) 1183/2005 OJ 2017 L 32/1; Council Implementing Decision 2017/203/CFSP implementing Council Decision 2010/788/CFSP OJ 2017 L 32/22, which changed the identifying information for 21 people and one entity listed on the sanctions list against the Democratic Republic of Congo; Commission Implementing Regulation (EU) 2017/44 amending Council Regulation (EC) 1210/2003 OJ 2017 L 6/36 on Iraq sanctions. 20 UN targeted sanctions regimes are imposed under Charter VII, Article 41 of the UN Charter, binding on all states. 21 Consolidated Security Council Sanctions Committee List. See https://www.un.org/sc/ suborg/en/sanctions/un-sc-consolidated-list. 22 UNSC Res 1735 (2006), para 6. 23 See also A Cuyvers, ‘Give Me One Good Reason: The Unified Standard of Review for Sanctions’ (2014) 5 CML Rev 1759. 24 See also UK Supreme Court, Her Majesty’s Treasury (Respondent) v Mohammed Jabar Ahmed and others (FC) (Appellants); Her Majesty’s Treasury (Respondent) v Mohammed al-Ghabra (FC) (Appellant); R (on the application of Hani El Sayed Sabaei Youssef) (Respondent) v Her Majesty’s Treasury (Appellant) [2010] UKSC 2, para 22. For the UK see Counter-Terrorism Act 2008 and the Terrorist Asset-Freezing Act 2010. For the Netherlands see Sanctieregeling terrorisme 2007-II. 25 For example, the EU and UK lists of individuals and entities threatening the sovereignty and territorial integrity of Ukraine consist of 150 individuals and 37 entities. See http://eurlex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2017.067.01.0034.01.ENG&toc=OJ:L: 2017:067:TOC and https://www.gov.uk/government/uploads/system/uploads/attachment_data/ file/512570/ukraine_sovereignty.pdf, respectively. The EU and Dutch lists of terrorist suspects giving effect to UNSC Res 1373 are equally identical. See http://www.eeas.europa.eu/cfsp/

The law and practice of EU sanctions 211 laws are, for example, expressly intended to implement UN Security Council Resolution 1373 (2001) but do not refer to the relevant EU laws implementing that Resolution.26 This is a breach of EU law, which prohibits parallel national measures that ‘implement’ directly applicable EU regulations.27 Yet so far the Commission has not introduced any proceedings against those Member States that keep their own national lists.

3. IMPLICATIONS OF SANCTIONS FOR OTHER POLICIES 3.1 Full Set of Judicial Remedies: Strengthening Fundamental Rights and the Rule of Law under CFSP Sanctions have made a significant contribution to the constitutionalization of CFSP, understood as the development and application of common EU norms and principles.28 As identified by Piet Eeckhout, ‘there is a tendency to apply broadly the same constitutional rules, principles, and disciplines to European foreign policy as are applied to the EU’s internal policies’.29 This increasingly includes CFSP. Because of the great amount of sanctions litigation this policy area has given the CJEU an opening to apply general constitutional rules of EU law to a hybrid combination of TFEU regulations that hinge on and effectively copy CFSP decisions. Moreover, the recent case of Rosneft30 is a good example of the Court applying constitutional rules and principles purely to CFSP. It is the first case in which the Court ruled on its scope of jurisdiction over a CFSP sanctions decision31 and it comes as one of four recent rulings of the CJEU in which the Court addressed the scope of its jurisdiction over CFSP more generally.32 In Rosneft, the Court explained that the different entry points of jurisdiction (Article 40 TEU and Article 275(2) TFEU) have different implications under the different types of procedures. The CJEU found that in the absence of any express

sanctions/consol-list_en.htm and https://www.government.nl/documents/reports/2016/01/15/ national-terrorism-list respectively. 26 See e.g. Article 2 of the Dutch Regulation on sanctions for the suppression of terrorism 2007-II (‘Sanctieregeling terrorisme 2007-II’), which refers neither to Council Regulation (EC)2580/2001, OJ 2001 L 344/70 nor to Council Common Position 2001/931/CFSP, OJ 2001 L 344/93. 27 Case 39/72 Commission v Italy EU:C:1973:13; Case 50/76 Amsterdam Bulb BV v Produktschap voor Siergewassen EU:C:1977:13. 28 C Eckes, ‘Common Foreign and Security Policy: The Consequences of the Court’s Extended Jurisdiction’ (2016) 22 European Law Journal 492. 29 P Eeckhout, ‘The Constitutionalization of European Foreign Policy’: Proceedings of the Annual Meeting (American Society of International Law) (2013) 107 International Law in a Multipolar World 171. 30 Rosneft (n 1), paras 66ff. 31 Segi (n 1) was decided under the former third pillar. 32 Case C-455/14 P H v Council et al EU:C:2016:569; Case C-439/13 P Elitaliana SpA v Eulex Kosovo EU:C:2015:753 and Opinion 2/13 EU:C:2014:2454, EU Accession to the ECHR.

212 Research handbook on the EU’s common foreign and security policy limitation, its jurisdiction to review compliance with Article 40 TEU extended to the preliminary ruling procedure.33 This interpretation is applicable across all CFSP policies. Article 275(2) TFEU, by contrast, specifically refers to Article 263(4) TFEU and could hence be interpreted as limiting this entry point to direct actions for annulment. Yet the CJEU, following the Opinion of Advocate General Wathelet,34 found that it also had jurisdiction to rule on the legality of CFSP sanctions decisions in preliminary ruling procedures.35 This is in line with the case of Segi and with the CJEU’s settled case law on the full set of judicial remedies.36 Yet it specifically confirms both a fundamental right and rule-of-law reading of judicial review, which also extends across the whole of CFSP.37 Attempts have been made to broaden structurally the entry point for jurisdiction under Article 275(2) TFEU. The term ‘restrictive measures’ used in this provision is within the EU context a technical term referring to sanctions, such as asset freezing and travel bans. However, fuelled by the dissatisfaction that the Court’s limited jurisdiction under CFSP may leave individuals without the necessary judicial protection, the question arose whether Article 275(2) TFEU could be interpreted much more broadly in order to establish a general rationale that CFSP measures, which adversely affect the rights of individuals in a direct manner, must be subject to judicial review. Textually this came together in the question of how narrowly the term ‘restrictive measures’ in Article 275(2) TFEU should be interpreted. Indeed, the Commission suggested a wide reading covering all direct adverse effects of CFSP policies, which would also have conveniently (albeit perhaps only partially) addressed the problem that the Court’s limited jurisdiction creates in the context of EU accession to the ECHR.38 By contrast,

33

Rosneft (n 1), paras 62–63. See further Chapter 4 in this volume. Rosneft (n 1), Opinion of AG Wathelet, paras 61ff. 35 ibid, paras 71–81. 36 ibid, paras 67–68: it is part of the ‘complete system of legal remedies or procedures that persons bringing proceedings must, when an action is brought before a national court or tribunal, have the right to challenge the legality of provisions contained in European Union acts’. 37 ibid, paras 69–75. 38 Opinion 2/13; H (n 32), Opinion of AG Wahl, para 34: ‘The Commission considers that Articles 24(1) TEU and 275 TFEU should be read as excluding the jurisdiction of the CJEU only with regard to CFSP acts which are an expression of sovereign foreign policy (‘actes de Gouvernement’), and not acts merely implementing that policy. In the alternative, the Commission takes the view that Articles 24(1) TEU and 275 TFEU exclude the CJEU’s review of alleged breaches of CFSP provisions alone, but not of alleged breaches of other EU provisions. Thus, the CJEU would be empowered to review the lawfulness of acts adopted in the framework of the CFSP when the alleged invalidity stems from a possible infringement of non-CFSP provisions. Nonetheless, the present appeal is, according to the Commission, inadmissible for the following reasons: first, the contested decisions cannot be considered mere acts of implementation, since they are of an operational nature; second, the grounds for annulment submitted by the appellant at first instance either required the General Court to interpret Decision 2009/906 (for which that court lacked jurisdiction) or had to be directed against the Italian authorities (and thus submitted in the context of an action lodged before the Italian courts).’ Criticized by AG Wahl in paras 60–66. 34

The law and practice of EU sanctions 213 Advocate General Wahl in the case of H suggested a narrow reading, which the CJEU followed. In his words: I do not believe that the concept of ‘restrictive measures’, although nowhere expressly defined in the Treaties, may, as the applicant suggests, be considered to cover all EU acts which adversely affect the interests of individuals. A textual, systematic and historical interpretation of Article 275 TFEU, in fact, reveals that concept to be of more limited scope.39

Arguably the Court’s jurisdiction should extend to actions for damages for harm caused by CFSP sanctions decisions.40 While non-contractual liability in Article 340 TFEU is applicable under Union law in its entirety this does not as such address the issue of jurisdiction. In this context it is important to realize that the dividing line between the TEU and the TFEU is not easily drawn in the context of sanctions. In a recent sanctions case, for example, the General Court awarded compensation for non-material damage for an unlawful listing of an entity as supporting nuclear proliferation in Iran.41 The Court did so specifically for the reputational damage resulting from the public sanctions measures. However, while the Court stated at the outset that the Council regulation adopted under the TFEU is a direct consequence of the adoption of a CFSP decision under the TEU it did not consider this fact in the context of non-material damages. While this case confirms that an unlawful listing in a TFEU regulation may lead to compensation it does not immediately allow the conclusion that the Court would accept jurisdiction for a standalone CFSP listing. Logically, the CFSP listing caused the reputational damage. It is the first public listing of the applicant’s name and is only copied into the regulation. However, AG Wathelet in Rosneft specifically argued: [a]ctions for damages which relate to a CFSP act are covered by the ‘carve-out’ provision in the last sentence of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU, but not by the ‘claw-back’ provision in the last sentence of the second subparagraph of Article 24(1) TEU and the second paragraph of Article 275 TFEU.42

In practical terms the denial of damages for harm caused by CFSP decisions could leave individuals without compensation even if their listing was found to be illegal by the Court within its exceptional jurisdiction under Article 275(2) TFEU. This would be the case in a situation where the applicants challenged the CFSP decision, rather than also the regulation, or if they were only listed in the CFSP decision but not in the regulation.43 39

H (n 32), Opinion of AG Wahl, para 74. C Eckes, ‘EU Counter-Terrorist Sanctions against Individuals: Problems and Perils’ (2012) European Foreign Affairs Review 113. 41 Case T-384/11 Safa Nicu Sepahan Co. v Council EU:T:2014:986, paras 78–92. See also Case T-293/12 Syria International Islamic Bank PJSC v Council EU:T:2014:439, para 70, where the Council accepted that the Court is competent to establish whether it has jurisdiction to award damages for CFSP measures. 42 Rosneft (n 1), Opinion of AG Wathelet. 43 This was the case for Segi (n 1). 40

214 Research handbook on the EU’s common foreign and security policy 3.2 Institutional Consequences: Closed Evidence Sanctions have in the past regularly been annulled because the Council was unable to substantiate the reasons for listing. This speaks to the need for a closed-evidence procedure. Article 105 of the General Court’s Rules of Procedure, which entered into force on 1 July 2016, sets out that information is ‘confidential’ if publication of that information ‘would harm the security of the Union or that of one or more of its Member States or the conduct of their international relations’.44 This will for the first time give the Council the ability to support their listing decisions with closed evidence. Indeed, the adoption of Article 105 was triggered in particular by the procedural difficulties of dealing with information in sanctions cases.45 However, Member States would have to trust the closed-evidence procedure sufficiently to share national intelligence supporting the decision of their competent national authorities. This should not be taken for granted. The General Court’s new rules of procedure do not specifically refer to sanctions or to CFSP. Information related to the CFSP is therefore treated like any other confidential information. The difficulties of being unable to share confidential information in sanctions cases triggered the creation of a general closed-evidence procedure, which now also allows for more judicial secrecy in other areas. This could ultimately lead to a spill-over of secret judicial proceedings to other, non-CFSP areas. This would be most likely for asylum or criminal law, for example in cases with a national security dimension. 3.3 Implications Under National Law In some Member States an explicit national rule attaches additional consequences to an EU sanctions listing. National law may, for example, exclude accepting refugees who are members or supporters of any of the groups listed under the EU sanctions regime. In a preliminary reference from a German court, the Court of Justice was asked to rule on this consequence of EU sanctions under national asylum law.46 A German asylum authority had decided that membership of an organization included on the terrorist lists justified excluding the person from refugee status. The CJEU held that exclusion from refugee status must be decided on a case-by-case basis, but also stated that inclusion on an EU sanctions list is a ‘factor to be considered’ in evaluating whether someone has committed a ‘serious non-political crime’ or an ‘act against the principles of the UN’.47 EU autonomous counter-terrorist sanctions are often but not always based on national criminal proceedings that are intended to give effect to Framework Decision 44

General Court, Rules of procedure, OJ 2015 L 105/1. The introduction to Chapter 7 of the Rules of Procedure specifically refers to restrictive measures, even if Article 105 is phrased in general terms and could be applied to other security matters. 46 Joined Cases C-57 & 101/09 Bundesrepublik Deutschland v B and D EU:C:2010:661. 47 ibid, para 90. 45

The law and practice of EU sanctions 215 2002/475/JHA on Combating Terrorism.48 Member States retain great discretion over the details of implementation since framework decisions are ‘binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods’.49 The definition of what constitutes a terrorist objective or a link with terrorism is consequently not necessarily identical in the different legal orders, national or European. The Dutch legislature, for instance, added specific provisions on terrorism to the existing criminal law, which allows an increase of the maximum penalty for acts with a terrorist objective by up to 50 per cent.50 This demonstrates the circular interaction and interlocking of the EU and the national legal contexts: EU law requires Member States to take action against terrorist activities, Member States do so, and EU sanctions may then attach additional consequences to the national counter-terrorist actions. At times there is another loop to this circularity where the EU law measure is used to justify a criminal conviction or the prohibition of an organization at the national level.51 In the Netherlands, for instance, all legal persons, listed by the EU pursuant to Common Position 2001/931/CFSP, are prohibited ipso jure.52 In Sweden and in Italy, the courts consider being on the UN list of terrorist suspects a relevant fact when, in the course of criminal proceedings, they determine whether the accused is connected with terrorism or not.53 The circularity is complete when a national decision is adopted ‘pending the adoption’ of an EU measure, then used to justify the adoption of the latter and immediately repealed when the EU measure comes into force.54 Furthermore, the breach of EU sanctions legislation leads to so-called secondary sanctions under national law. Pursuant to Article 83(2) TFEU, minimum rules for secondary sanctions could in principle be established by the Union. However, since this has not yet happened, Member States remain in charge of adopting secondary sanctions. Secondary sanctions do not necessarily have to be criminal but they have to be effective. Again, the specific national provisions differ considerably. In Austria, secondary sanctions are regulated by the national sanctions law.55 Any natural or legal person who makes funds available to a listed individual faces a fine of up to €50,000, and, if more than €100,000 is made available, imprisonment of up to one year or 360 Tagessätze.56 In Germany, deliberate breaches are punishable by imprisonment for a 48

For example, Case T-47/03 Sison v Council and Commission (‘Sison I’) EU:T:2007:207; Case T-341/07 Sison v Council (‘Sison II’) EU:T:2011:687. In these cases, the national decision concerned the rejection of refugee status in the Netherlands rather than criminal proceedings. 49 Article 34(2)(b) TEU (pre-Lisbon). 50 EJ Husabø and I Bruce, Fighting Terrorism through Multilevel Criminal Legislation (Martinus Nijhoff Publishers 2009) 184. 51 See Case C-550/09 Generalbundesanwalt beim Bundesgerichtshof v E and F EU:C:2010: 382. 52 ‘Van rechtswege verboden’, Art 2:20 Section 3 of the Civil Code (Burgerlijk Wetboek). 53 See Sixth report of the Analytical Support and Sanctions Monitoring Team, UN S/2007/132 (8 March 2007), box 1, 14, http://www.un.org/en/ga/search/view_doc.asp?symbol= S/2007/132. 54 See Case T-348/07 Al Aqsa v Council EU:T:2010:373, para 177. 55 See Section 12(1) Sanktionengesetz (SanktG). 56 Fine calculated on the daily rate of income.

216 Research handbook on the EU’s common foreign and security policy period of between six months and five years.57 The ECJ ruled that, where the EU listing has been found to be flawed because the listed individuals had not been given the necessary opportunity to exercise their procedural rights, the listing is illegal and cannot justify secondary sanctions under national law.58 The CJEU held that the EU listing cannot, in any circumstances, be relied upon … as a basis for a criminal conviction in respect of facts relating to that period [in which those listed did not enjoy the necessary procedural rights], without infringing the principle of the non-retroactivity of provisions which may form the basis for a criminal conviction.59

The latter demonstrates the dependence of national criminal secondary sanctions on the EU listings. Yet secondary sanctions can also result in a challenge of the underlying EU listing. In 2017 the CJEU ruled in a preliminary reference concerning secondary sanctions60 that the listing of an organization could be challenged in a preliminary ruling request in the context of national proceedings against secondary sanctions imposed on natural persons for having supported that organization, including after the period for bringing an action for annulment against that listing in the EU Courts had expired. 3.4 EU Counter-Terrorist Sanctions as Part of EU Counter-Terrorist Policies Autonomous EU counter-terrorist sanctions are not only a particular type of sanction but also a particular type of EU counter-terrorist policy. This raises the question of how they interact with other counter-terrorist policies. In a recent preliminary ruling, a Dutch court suggested that the definition of a ‘terrorist act’ within the field of EU sanctions61 should be interpreted in line with the general Framework Decision on Combating Terrorism.62 The CJEU rejected this interpretation.63 Rather than seeing EU counter-terrorist policies as one coherent whole, it focused on the objective and nature of each of the legal instruments. It argued that the objective of the Framework Decision was to approximate the definition of terrorist offences imposing penalties for past conduct and that it fell within the sphere of the Area of Freedom, Security and Justice (AFSJ). The autonomous EU sanctions regime, by contrast, essentially constituted a CFSP policy and imposed preventive rather than punitive measures. The Court also recalled that the relationship between national and EU law is different in both contexts. While the Framework Decision aimed to approximate national criminal law, sanctions were adopted according to a system operating on two levels, in the sense that the Council may include on that list only persons and entities in respect of which a 57

Section 34(4)Nr.2, (5), (6)Nr.4, (7) Aussenwirtschafsgesetz (AWG). Case C-550/09 Generalbundesanwalt beim Bundesgerichtshof v E und F EU:C:2010:382. 59 ibid, para 59. 60 Case C-158/14 A, B, C & D v Minister van Buitenlandse Zaken (A. and others) EU:C: 2017:202. 61 Common Position 2001/931 and Regulation 2580/2001 (n 26). 62 Council Framework Decision 2002/475/JHA, OJ 2002 L 164. 63 A and others (n 60). 58

The law and practice of EU sanctions 217 decision taken by a competent national authority exists.64 In particular, the Court held that the different nature and purpose of the two legal instruments justified the fact that, while the Framework Decision specifies that it does not govern actions by armed forces during periods of armed conflict, the autonomous EU sanctions regime was not subject to that limitation. The CJEU’s fragmented purposive interpretation limits the implications of one policy field for others. The CJEU’s classification of EU sanctions as preventive rather than punitive as an argument for not applying rights protection that is offered under more general counter-terrorist instruments is problematic in and of itself. First, if sanctions remain in place for very long periods of time they restrict rights in a manner comparable to criminal measures, so the classification as preventive should be irrelevant from a rights perspective.65 Secondly, this classification allows a class of counter-terrorist measures that is not subject to the same rights protection as other counter-terrorist measures. This seems not only unnecessary in this particular case, but also undesirable from the perspective of legal certainty, coherence and rights protection. It confirms once more that sanctions are constructed to operate as far as possible outside of the system of rights guaranteed under EU law. The CJEU decided to treat the different legal instruments as reflecting a different internal logic and subjected them to different limits. This results in a situation in which those sanctioned, who are, for example, participants in an armed conflict, may benefit from certain immunities under international humanitarian law with regard to the Framework Decision but are at the same time targeted by EU restrictive measures and secondary sanctions under national criminal law. It also limits the spill-over from TFEU policies to CFSP and vice versa. 3.5 Extraterritorial Effects Sanctions have certain extraterritorial effects. EU citizens are bound by them, irrespective of where they are. So are companies and organizations incorporated under the law of a Member State, including branches of companies in third countries.66 The EU also invites certain third countries to align with its imposed sanctions measures.67 Alignment with EU sanctions is seen as an act of political commitment.68 In the latest renewal of sanctions against Russia over the conflict in Ukraine, only Montenegro, Albania, Norway and Ukraine aligned themselves with the EU. In 2015 this group still included

64

ibid, para 84. C Eckes, ‘EU Restrictive Measures Against Natural and Legal Persons: From Counterterrorist to Third Country Sanctions’ (2014) 51 CML Rev 869. 66 Fact lists EU sanctions, http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/ EN/foraff/135804.pdf. 67 The alignment is published in a separate declaration from the High Representatives in a Press release, see e.g. Press release 239/17 of 5 May 2017 regarding the restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine. 68 E Hellquist, ‘Either With Us or Against Us? Third-country Alignment with EU Sanctions Against Russia/Ukraine’ (2016) 29 Cambridge Review of International Affairs 997, 1001. 65

218 Research handbook on the EU’s common foreign and security policy Iceland, Liechtenstein and Georgia.69 It is not clear why the latter states did not align themselves with the EU for the specific sanctions regime. At times third countries choose to follow suit with EU imposed sanctions, without publicly aligning themselves.70 Furthermore, non-alignment can be due to time pressure. A request for alignment comes without previous political dialogue and the third country may simply not have enough time to decide if it should align itself.71 This does not rule out the possibility that it will nonetheless implement the sanctions later on.72

4. TENSION BETWEEN LEGAL RULES AND POLITICAL OBJECTIVES The intrinsic tension between legal rules and procedures and political objectives could not be more apparent. The EU institutions claim that ‘[s]anctions are one of the EU’s established tools to promote the CFSP objectives of peace, democracy and the respect for the rule of law, human rights and international law’.73 They consider sanctions as ‘always [forming] part of a wider, comprehensive policy approach involving political dialogue and complementary efforts’.74 The repeated annulments of EU sanctions measures, predominantly for infringing procedural rights of those listed,75 could be read as a situation in which individual rights limit the ability of the EU to take political decisions. Previously, comprehensive state sanctions, such as those imposed on Iraq in reaction to its 1990 invasion of Kuwait, also had a severe humanitarian impact. They suffered from a great lack of precision in targeting those who contributed the most to the situation that triggered the imposition of the sanctions in the first place. The move from measures of general application, such as comprehensive state embargoes, to measures targeting specific persons that restrict their rights at a level of severity comparable to criminal measures, was intended to limit humanitarian consequences and fundamental rights violations. Yet this move also creates more far-reaching procedural guarantees for those sanctioned in a Union of law. This may result, somewhat counterintuitively, in a situation where it is more difficult for the Council to defend the measure with more limited fundamental rights consequences (targeted sanctions) in court than the measure with more far-reaching fundamental rights consequences (trade embargoes). 69 Press release 622/15 of 28 June 2015 regarding restrictive measures in response to the illegal annexation of Crimea and Sevastopol. 70 Sanctions may have more effect for one country than for another. Iceland suffered from the Russian boycott of Icelandic fish. After 2016 it stopped publicly aligning itself with the EU sanctions. See B Thorhallsson and P Gunnarsson, ‘Iceland’s Relations with its Regional Powers: Alignment with the EU-US sanctions on Russia’ (Working Paper 874, NUPI 2017). 71 ibid, 24, confirmed by interviews with Icelandic officials. 72 For Iceland see https://www.mfa.is/foreign-policy/sanctions/. For Liechtenstein see http:// www.llv.li/#/114812?scrollto=true. 73 See https://eeas.europa.eu/headquarters/headquarters-homepage_en/423/Sanctions%20 policy. 74 ibid. 75 See n 14 above and Section 5.4 below.

The law and practice of EU sanctions 219 4.1 Relisting In practice, the EU institutions have been able to maintain the sanctions despite repeated annulments by the EU Courts. The Council regularly relisted natural and legal persons after the EU Courts had annulled their listing. This may be justified and reasonable if the procedural flaws of the listing decision can be remedied in the relisting decision. However, it is at least prima facie less justified if the reason for annulment was that the reasons for listing could not be substantiated and that the reasons for listing are only reformulated in the relisting decision. The Council is not obliged to demonstrate that the relisting is based on new or newly discovered relevant facts. Nor does the Council have to specifically explain why the person is relisted or why the information was missing in the original listing. The specific example of Mr Kadi has attracted the most attention in this regard. Mr Kadi had not been delisted following the decisions of the CJEU of 3 September 200876 as the Court had maintained the effects of the listing for up to three months. Subsequently, the Commission provided the narrative summary of reasons provided by the UN to list Mr Kadi on the UN Sanctions List and allowed Mr Kadi to comment on the narrative summary.77 However, it maintained the position that Mr Kadi should be included on the EU sanctions list due to his association with the Al Qaeda network.78 The Commission did not and most likely could not produce new or better reasons for listing Mr Kadi since his case concerned EU sanctions giving effect to a decision of the UN Security Council Sanctions Committee. Finally, in October 2012, the EU delisted Mr Kadi, following the delisting by the Security Council only days earlier.79 The regular relistings have been the means deployed by the Council to prevent the Court’s interventions from interfering with the political objectives of these sanctions. This has been facilitated by the fact that the Court regularly maintains the effects of the annulled decisions for a transition period, presumably with the aim of allowing the Council to relist. Consequently, while the regular annulments may have negatively impacted on the credibility of the EU’s sanctions policy, they have not reduced the legal or factual effects of asset freezing or travel bans.

76

Joined Cases C-402 & 415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities EU:C:2008:461. 77 Case T-85/09 Yassin Abdullah Kadi v European Commission EU:T:2010:418, paras 53–57. 78 Commission Regulation (EC) 1190/2008, amending for the 101st time Council Regulation (EC) 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, OJ 2008 L 322/25. 79 Commission Implementing Regulation (EU) 933/2012 amending for the 180th time Council Regulation (EC) 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with the Al Qaeda network, OJ 2012 L 278/11.

220 Research handbook on the EU’s common foreign and security policy 4.2 General Policy Objectives and Specific Fundamental Rights Restrictions The political objectives, including the symbolic or signalling functions of sanctions regimes, cannot be easily explained without raising difficult fundamental questions of justice. Does the EU legal order allow justifying measures that strongly interfere with the fundamental rights of targeted individuals with general policy objectives? While sanctions decisions essentially concern a familiar weighing of the common good and the rights of individuals, it is difficult to justify them in a Kantian ethical framework using individuals as means to serve a more general purpose. However, a combination of different purposes for a rights-sensitive measure is widely accepted, including for criminal punishment. Part of the motivation to punish can be the protection of the population, including from other perpetrators who are discouraged from breaching the law because they fear the example of those punished. Yet any punishment finds its limits in the severity of the criminal act, the damage and the subjective responsibility of the perpetrator. This is where the difficulties in the context of sanctions begin. The limits of subjective responsibility are in general terms guaranteed by the proportionality principle. Yet the proportionality principle is not able to ensure these limits in the context of sanctions because of the way it is interpreted in this context.80 The tension between the general purpose and the individual rights restriction may also be one of the reasons why the EU does not identify the objectives more clearly and make an argument as to how any specific objective is served by targeting a particular person. 4.3 Change in Behaviour The 2012 EU Sanctions Guidelines state that ‘[i]n general terms, restrictive measures are imposed by the EU to bring about a change in policy or activity by the target country, part of country, government, entities or individuals, in line with the objectives set out in the CFSP Council Decision’.81 Sanctions are aimed at changing the ‘policy’ of the third-country regime or the ‘activity’ of those targeted, i.e. to achieve a change in behaviour. The EU has suspended sanctions for political developments in the country. This has, for example, been the case for Belarus and Zimbabwe.82 However, there is no publicly available information that the EU has ever delisted an individual from any of the targeted sanctions lists because that person or entity has demonstrated a change in behaviour. The aim of achieving a change in behaviour is highly problematic in the context of sanctions regimes, in particular with regard to those persons who are more remote from the regime.83 The generality of the policy objectives of the legal instruments, e.g. aiming for ‘democratization’ of a country, makes it in fact impossible to link the 80

See Section 5.4 below. Restrictive measures guidelines (n 3), II.A.4. 82 See, for example, Council Decision 2013/160/CFSP amending Decision 2011/101/CFSP concerning restrictive measures against Zimbabwe, OJ 2013 L 90/95. 83 The problems connected with the assessment of a change in behaviour were brought to the fore by the CJEU in Tay Za with regard to sanctions against the most remote group of targets, family members of those suspected of economically supporting and benefiting from the regime in focus: Case C-376/10 P Tay Za v Council EU:C:2012:138, para 67. 81

The law and practice of EU sanctions 221 objectives to the behaviour of individuals in the vast majority of cases. Is it possible to demonstrate that someone is no longer supporting terrorism or a third-country regime, in particular if the original support was economic and that person’s funds are frozen? Or does their listing ultimately depend on a policy change of the third-country regime, as in the case of Myanmar, or a regime change, as in the case of Iraq or Libya?

5. NEW TRENDS? 5.1 Ever More Sanctions, EU Powers and Objectives Since their inception within the EU context in 2002, instruments and objectives used in the EU’s targeted sanctions policy have multiplied. Currently, the EU has restrictive measures in force against 30 countries, and additionally separate sanctions regimes against terrorist groups, most significantly against persons and entities associated with Al Qaeda and ISIL (Da’esh), but also against terrorist offences in general.84 Of these 30 regimes, six were implemented before 2000, eight between 2000 and 2010, and 16 after 2010. A recent example of an autonomous EU sanctions regime is that adopted against ISIL (Da’esh)/Al Qaeda in September 2016. This new regime is targeting foreign fighters, persons travelling outside the EU to join the cause of terrorism.85 It will allow the EU for the first time to designate people for being associated with terrorism (ISIL (Da’esh)/Al Qaeda) who have not been previously identified by the UN or by the competent authorities of the Member States. Until the adoption of this new regime, all listing decisions under the autonomous EU counter-terrorism sanctions regime had been taken in a composite administrative procedure in which national authorities took the relevant decision, which then triggered the EU listing. The EU, by contrast, had only been competent to draw up listings without input of national authorities in the context of regime sanctions. As these counter-terrorist sanctions are not related to any political regime governing any geographically identifiable territory, they constitute the most indeterminate sanction tool the EU deploys. This new regime should therefore be seen as an extension of the powers of the Council. The objectives that targeted sanctions regimes pursue have equally multiplied. Besides internal conflicts, non-proliferation, counter-terrorism, democratization and protection of civilians, including their human rights, have become objectives of sanctions imposed by both the UN and the EU. The EU sanctions against Russia are an example of a sanctions regime that is characterized by a great diversity of objectives and measures. They were introduced in March 2014.86 In the first year, not only the list 84

European Commission, ‘European Union, Restrictive measures (sanctions) in force’. Last updated 26 April 2017, https://eeas.europa.eu/sites/eeas/files/restrictive_measures-2017-04-26clean.pdf. 85 Council Regulation (EU) 2016/1686 OJ 2016 L 255/1 and Council Decision 2016/1693/ CFSP repealing Common Position 2002/402/CFSP OJ 2016 L 255/25; see in particular the last alternative of Article 3(1). 86 Council Decision 2014/145/CFSP OJ 2014 L 78/16.

222 Research handbook on the EU’s common foreign and security policy of persons and entities, but also listing criteria were amended every month.87 The following range of prohibited actions and protected objectives gives a good impression of increasing diversification of objectives and measures: protection of the territorial integrity, sovereignty and independence of Ukraine; the misappropriation of public goods; a ban on imports of goods originating in Crimea or Sevastopol unless they have Ukrainian certificates; a prohibition on investing in Crimea;88 a ban on providing tourism services in Crimea or Sevastopol;89 goods and technology for the transport, telecommunications and energy sectors or the exploration of oil, gas and mineral resources may not be exported to Crimean companies or for use in Crimea; technical assistance, brokering, construction or engineering services related to infrastructure in the same sectors must not be provided.90 5.2 Institutional Tug-of-War Since the entry into force of the Lisbon Treaty, the EEAS has formally been given an important institutional role in the adoption of sanctions. With regard to autonomous sanctions in particular, the 2012 Guidelines stipulate that the EEAS ‘should have a key role in the preparation and review of sanctions regimes as well as in the communication and outreach activities accompanying the sanctions, in close cooperation with Member States, relevant EU delegations and the Commission’. The review is conducted by the relevant Council working parties and committees, where appropriate on the basis of EU Heads of Mission reports.91 Heads of Missions may, for instance, help to ensure unambiguous identification of the targeted persons92 and are ‘invited to provide, where appropriate, their advice on proposals for restrictive measures or additional designations’.93 The strong involvement of the EEAS underlines the hybrid CFSP/TFEU nature of sanctions since the EEAS is equally of a hybrid nature, dealing with both CFSP and

87

See for an overview of all the amendments: Restrictive measures in force (n 84) 115. Europeans and EU-based companies can no longer buy real estate or entities in Crimea, finance Crimean companies or supply related services. In addition, they may not invest in infrastructure projects in six sectors. 89 European cruise ships may not call at ports on the Crimean peninsula, except in case of emergency. This applies to all ships owned or controlled by a European or flying the flag of an EU Member State. 90 See Council Regulation (EU) 692/2014, OJ 2014 L 183/9, last amended by Council Regulation (EU) 1351/2014 concerning restrictive measures in response to the illegal annexation of Crimea and Sevastopol; see for the other sanctions regimes Council Regulation (EU) 269/2014 OJ 2014 L 78, last amendment of the criteria for listing in Council Regulation 959/2014 and Council Regulation (EU) 208/2014, OJ 2014 L 66/1 concerning restrictive measures against persons. 91 Council, Guidelines on implementation and evaluation of restrictive measures (sanctions) in the framework of the EU CFSP, 11205/12 of 15 June 2012 (EU Sanctions Guidelines). 92 ibid, II.D.22. 93 ibid, Annex I Recommendations for working methods for EU autonomous sanctions, para 3. 88

The law and practice of EU sanctions 223 TFEU policies.94 The EEAS involvement, with its focus on external policies, including CFSP, does not make the use of a legal basis under the AFSJ (Article 75 TFEU) more likely. In November 2016 the Foreign Relations Counsellors Working Party (RELEX) agreed that the assessment of the impact and functioning of autonomous EU sanctions against ISIL (Da’esh)/Al Qaeda and the examination of appropriate possible improvements should be entrusted to the former CP 931 Working Party with an enlarged scope and a new name: COMET WP.95 COMET WP has the mandate to ‘examine and evaluate information with a view to listing and de-listing of persons, groups, undertakings and entities, as well as assess whether the information available meets the [relevant] criteria’, ‘make recommendations for listings and de-listings’, ‘prepare the regular review’, and ‘assess the impact and functioning’. COMET WP largely works in secret.96 The six-monthly rotating Council Presidency chairs it. The documents are held by the Council Secretariat. As mentioned above, the ISIL (Da’esh)/Al Qaeda regime provides for the first time the possibility for the EU itself to take autonomous listing decisions that are not based on UN lists or on the decision of competent national authorities. This may justify a new institutional arrangement. Yet these new institutional developments are also a clawing back of competences from the EEAS.97 5.3 Ever More Vague Listing Criteria While the sanctions criteria of counter-terrorist sanctions have always been very broad and arguably rather vague, for example requiring an association with an alleged terrorist organization, the sanctioning criteria used in regime sanctions have equally become broader and more vague over time. An example is the sanctions regime against Iran, which has been fundamentally adapted to make the sanctions more likely to stand up in court. They started with a focus on individuals who contribute to the proliferation of nuclear materials before shifting more generally to those supporting the government of Iran. Two appeal cases before the CJEU specifically examined the criterion of ‘support to the Government of Iran’ set out in Article 20(1)(c) of Council Decision 2010/413/CFSP, as amended by Council Decision 2012/635 CFSP.98 The ECJ explained that the 94

S Blockmans and C Hillion (eds), EEAS 2.0: A Legal Commentary on Council Decision 2010/427/EU Establishing the Organisation and Functioning of the European External Action Service (CEPS 2013), available at https://www.ceps.eu/publications/eeas-20-legal-commentarycouncil-decision-2010427eu-establishing-organisation-and. 95 Council Foreign Relations Counsellors Working Party, ‘Fight against the financing of terrorism – Establishment of a Council Working Party on restrictive measures to combat terrorism (COMET WP)’ (23 November 2016), 14612/1/16 REV 1, http://www.statewatch.org/ news/2016/dec/eu-council-comet-terrorist-lists-wp-14612-16-rev1.pdf. 96 See ibid, practical arrangements on page 4: even organizational information of the working party falls short of being classified but is labelled ‘restraint’, which in actual fact makes it inaccessible. 97 Compare also: EEAS 2.0: A Legal Commentary (n 94). 98 Central Bank of Iran (n 16); Case C-440/14 P National Iranian Oil Company v Council EU:C:2016:128.

224 Research handbook on the EU’s common foreign and security policy purpose behind the addition of that criterion was to target the relevant person or entity’s own activities which, even if they have no actual direct or indirect connection with nuclear proliferation, are nonetheless capable of encouraging it by providing the Government of Iran with resources or facilities of a material, financial or logistical nature which allow it to pursue proliferation activities.99

It further upheld the General Court’s conclusion that financial services ‘such as the holding of accounts, the performance and conclusion of financial transactions or the purchase and sale of bonds, constitute material, logistical and financial support to that State and, as a result, support to the Government of that State’, qualified as financial support even if the Central Bank of Iran did not place ‘its own financial resources at the disposal of the Government of Iran’.100 This considerably extends the circle of targeted persons. Another recent example is the sanctions regime against Syria. Article 3(1) and Article 4(1) of Decision 2011/273 provided for the adoption of restrictive measures against persons responsible for the violent repression of the civilian population in Syria and persons associated with them, as listed in the annex to that decision.101 The following section will, inter alia, discuss how broadly this particular listing criterion is interpreted. 5.4 Trends in Litigation The Court’s decisions on the legality of sanctions measures occur in the following setting. The Council designates an individual, sets out a number of reasons, and the individual challenges the listing in an action for annulment. The applicant usually disputes, amongst other things, the factual accuracy of the listing reason put forward by the Council. The right to judicial review under Article 47 EU Charter of Fundamental Rights requires that the ECJ is in a position to ensure that the listing decision, which affects that person individually, is taken on a sufficiently solid factual basis. That entails, in this instance, a verification of the factual allegations in the summary of reasons underpinning the contested acts, in order to review whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support those acts, is substantiated.102

99

Central Bank of Iran (n 16), para 44. ibid, paras 45–46. 101 Council Decision 2011/273/CFSP concerning restrictive measures against Syria, OJ 2011 L 121/11. 102 Case C-193/15 P Tarif Akhras v Council ECLI:EU:C:2016:219, para 56. With reference to the judgments in Joined Cases C-584, 593 & 595/10 Commission and Others v Kadi EU:C:2013:518, para 119; Case C-630/13 Anbouba v Council EU:C:2015:247, para 46; and Case C-605/13 Anbouba v Council EU:C:2015:248, para 45. 100

The law and practice of EU sanctions 225 The burden of proof lies with the Council to demonstrate that the listing criteria are met.103 Most annulments then happen because the Council is unable or unwilling to produce evidence, or even information and clues, supporting the reasons for designation. Recent cases, for instance regarding the sanctions regimes against Russia and Zimbabwe, continue to turn on similar issues as previous case law in the context of other sanctions regimes: choice of the legal basis, manifest error of assessment, obligation to state reasons, rights of the defence, fundamental rights, and proportionality. Yet one new trend is the bringing together of large number of individuals and entities in collective challenges.104 The most relevant trend, however, is that the litigation statistics have improved in two regards: fewer cases are brought and of these the Council wins a higher proportion. The reasons for this are not so much that the Council is producing more or better evidence. The reason rather lies in the case law of the EU Courts itself, in which the Court has accepted that certain legal constructions, such as presumptions based on inferences, can lead to a reversal of the burden of proof. Other circumstances, such as the construction of the proportionality test, stand in the way of strict scrutiny of the specific listing, as opposed to the general policy decision that sanctions are imposed. Finally, the Court considers it sufficient if the Council substantiates one out of the many reasons brought forward to justify a listing. As to the first point, the CJEU appears to have changed its position on the acceptability of presumptions that the targeted individual meets the listing criteria, which are not codified under secondary law and which lead to a reversal of the burden of proof based on inferences. In 2012 the Grand Chamber of the ECJ overturned the General Court’s position in the case of Tay Za v Council that the family members of those in charge of businesses could be targeted by sanctions based on a presumption (for which no provision was made in the relevant secondary law) that they benefited from the economic policies of the targeted regime. The ECJ held: [b]y finding that it may be presumed that the family members of leading business figures benefit from the functions exercised by those businessmen, so that such family members also benefit from the economic policies of the government, and that there is therefore a sufficient link … between the appellant and the [targeted regime] the General Court erred in law.105

Whether or not presumptions based on inferences should be permissible as a matter of principle is a different question. The case law demonstrates a development in the Court’s position on their acceptability. In the more recent case of Afrasiabi, the ECJ emphasized the need for a contextual assessment106 and the difficulties that the Council 103

See for two cases that concerned inter alia the burden of proof: Case C-72/11 Afrasiabi and Others ECLI:EU:C:2011:874 and Case C-630/13 P Anbouba v Council EU:C:2015:247. 104 See, e.g., a case brought by 109 individuals and 12 companies against their designation on the sanctions list against Zimbabwe: Case T-190/12 Tomana and others v Council and Commission EU:T:2015:222; appeal: Case C-330/15 P Tomana and Others v Council and Commission EU:C:2016:601. 105 Case C-376/10 P Tay Za v Council EU:C:2012:138, paras 69–71. 106 ibid, para 60.

226 Research handbook on the EU’s common foreign and security policy encounters in producing evidence ‘because of the state of war that prevails in Syria’.107 It held that ‘the Council discharges the burden of proof that lies on it if it presents to the [EU Courts] a set of indicia sufficiently specific, precise and consistent to establish that there is a sufficient link between the person subject to a measure freezing his funds and the Syrian regime’.108 This led the Court to the conclusion that the applicant’s status as a businessman and his leading positions in the networks of Syrian businessmen such as the Chambers of Commerce, and his role as a representative of Syrian businessmen constituted such ‘a set of indicia sufficiently specific, precise and consistent to establish that [the applicant] was providing economic support to the Syrian regime or benefiting from it’.109 Accordingly, while in Tay Za a presumption that family members of those associated with a regime benefit from that closeness to the regime was rejected, in Afrasiabi the presumption that a well-connected businessman in Syria is supporting the regime or benefiting from it was accepted. Moreover, the ECJ explicitly confirmed that a set of indicia is sufficient to discharge the burden of proof that lies on the Council when taking a listing decision. Effectively this amounts to a threshold that is lower than ‘probable cause’. As to the second issue, the ECJ confirmed that the starting point for the test of whether sanctions are proportionate could be the abstract objective of maintaining international peace and security. It upheld the General Court’s proportionality assessment of the Iranian regime sanctions. The General Court had first acknowledged that the measures caused considerable harm to the applicant, both financially and to its reputation.110 When assessing the proportionality, the General Court had then simply held that ‘the difficulties caused to the applicant as a result of the contested acts are not disproportionate to the importance of the aim of maintaining international peace and security that is pursued by those acts’.111 The remainder of the proportionality assessment was dedicated to explaining how the harm to the applicant had been limited in the specific case. The General Court had not considered to what extent – in terms of quality or quantity – the applicant’s support of the regime with quite general financial services had contributed to the overpowering general aim of maintaining international peace and security. This is an indirect way of limiting judicial review: by taking weighty abstract objectives as the yardstick the proportionality test is voided of meaning.112 As to the third point, in the case of Afrasiabi the Council had first put forward reasons for listing including that the applicant, Mr Akhras, besides being a prominent businessman benefiting from and supporting the Syrian regime and a member of the Board of the Federation of Syrian Chambers of Commerce, was the founder of the Akhras group, had close business relations with President Assad’s family and provided industrial and residential premises for improvised detention camps and logistical 107 108 109 110 111 112

ibid. ibid. ibid. ibid, para 118. ibid, para 119. See Eckes (n 65).

The law and practice of EU sanctions 227 support for the regime.113 In the proceedings the Council could only substantiate the most general reason, namely that he was ‘a prominent businessman who is part of the economic ruling class in Syria’.114 It should, however, be added that the other originally stated reasons for listing, for which the Council did not or could not put forward any evidence, could arguably be seen to have caused the most reputational damage. By confirming that substantiating one of the reasons for listing is sufficient to make the listing lawful, the CJEU effectively opens the door to a practice of giving a combination of more specific and more general reasons that damage the listed person’s reputation to different degrees, without ever having to put forward any evidence for most and potentially the gravest of these reasons.

6. CONCLUSION AND RECOMMENDATIONS EU sanctions targeted at specific individuals, be they sanctions against terrorist suspects or regime supporters, have replaced comprehensive state sanctions. At the same time, the combination of ever more vague listing criteria and the fact that the ECJ accepts sets of indicia as sufficient to justify a listing also reduces the targeted nature of sanctions and allows them to target categories of people. What seems fairly certain is that for the moment sanctions are here to stay. However, the EU sanctions policy continues to raise fundamental rights concerns. Some of these concerns could be addressed by taking Declaration 25 on Articles 75 and 215 TFEU, as it was attached to the Lisbon Treaty, more seriously. This Declaration reads as follows: The Conference recalls that the respect for fundamental rights and freedoms implies, in particular, that proper attention is given to the protection and observance of the due process rights of the individuals or entities concerned. For this purpose and in order to guarantee a thorough judicial review of decisions subjecting an individual or entity to restrictive measures, such decisions must be based on clear and distinct criteria. These criteria should be tailored to the specifics of each restrictive measure.

This does not seem to leave room for a combination of a presumption of association of a regime in the broadest sense possible because someone is an economically active person under this regime, or even a family member of such an economically active person. The requirements of tailoring the sanctions criteria to the specific regime should be translated into a requirement that they are directly linked to the objectives of that regime. Since targeted sanctions were introduced in 2002, the adoption procedures, including the statement of reasons and notification, have improved. Yet it is difficult for the EU to create a procedure that stands up in a Union of law, in which individuals are subjected to far-reaching rights restrictions, possibly without any personal wrongdoing, in order to serve political objectives. This was possible for comprehensive state sanctions 113

Case C-72/11 Afrasiabi and Others EU:C:2011:874, para 58. See S Blockmans, ‘Curbing the Circumvention of Sanctions Against Iran Over Its Nuclear Programme: Afrasiabi’ (2013) 50 CML Rev 623. 114 ibid, 59.

228 Research handbook on the EU’s common foreign and security policy because measures against entire states belong to the realm of international law and international relations and are by definition political, even if they entail far-reaching fundamental rights implications for large parts of a population. This tension must be addressed with greater care. The specific sanctions regime should state as precisely as possible the link between the CFSP objectives as set out in Article 21 TEU: the protection of peace and democracy and respect for the rule of law, human rights and international law, and the measures imposed on specific individuals or groups of people. The EU Guidelines should attempt to explain in more detail what could constitute a change in policy or behaviour in this context that should lead to delisting. One requirement should be that only those who are actually in a position to contribute to achieving the objectives – in terms of the quality and quantity of the alleged support – could justifiably be made targets of sanctions. Furthermore, any change can only be evaluated against the backdrop of previous behaviour. This seems impossible if the person was listed on the basis of an inferred presumption of involvement. The tension between the policy goals and the specific restriction of the rights of individualized persons may also be the reason why the EU Courts have constructed a level of judicial review which leads to fewer annulments and ultimately to less litigation being brought against EU sanctions. Indeed, the combination of the presumptions based on inferences that place the burden of proof effectively on those to whom the presumption applies, the broader and more vague listing criteria, and the acceptance of a test of proportionality that weighs any individual rights infringement against the overpowering objective of international peace and security, have made sanctions litigation less successful. It has simply lowered the threshold of justification. The consequence that sanctions have for the legal culture, as well as for trust and confidence in the legal system, must be considered. These costs go beyond the infringement of human rights in any particular case. Sanctions should not set dangerous precedents of quasi-criminal charges located in the grey zone of criminality. The EU should for reasons of credibility commit to meeting the procedural standards of criminal law, even if the general position of the EU institutions and the Court remains that sanctions are preventive and not punitive. Yet the case law of the Court, which effectively lowers the burden of proof, gives the Council room to go in the opposite direction. Additionally, detailed and repeated impact assessments which consider legal and political costs should be made for each sanctions regime. Public and private costs of sanctions should also be separately considered in these assessments. The latter are often disregarded and even sometimes the private bodies and individuals, such as financial institutions,115 are unaware of their full extent.116 In the globally interconnected world, financial institutions, for instance, not only have to conduct customer name checks 115

For an impression of the complexity of combating the financing of terrorism, see World Bank, Combating Money Laundering and the Financing of Terrorism – A Comprehensive Training Guide: Workbook 1. Effects on Economic Development and International Standards (World Bank 2009); House of Lords European Union Committee, ‘Money Laundering and the Financing of Terrorism’ (HL 2008-09 132-I). 116 W Wensink, M van de Velde and L Boer, Estimated Costs of EU Counterterrorism Measures (European Parliament Directorate-General for internal policies 2011).

The law and practice of EU sanctions 229 against numerous parallel and complementary sanctions lists, they also have to monitor to whom customers transfer funds and from whom they receive funds. Finally, measures like the new autonomous EU sanctions against ISIL (Da’esh)/Al Qaeda, in which the EU actually designates individuals truly autonomously, should be based on Article 75 TFEU rather than Article 215 TFEU. This would effectively remove this type of sanction from the realm of CFSP and bring them within the AFSJ. Under both Article 75 and Article 215(2) TFEU, sanctions are adopted by the Council acting by qualified majority following a Proposal of the Commission (Article 75 TFEU) or a Joint Proposal from the Commission and the High Representative (Article 215 TFEU). However, since Articles 215 and 75 TFEU set out very different procedures for the basic policy decision (CFSP decision or AFSJ framework, respectively), the choice of the legal basis is crucial not only for the division of competences between the EU and its Member States, but also for the influence of the different EU institutions. The involvement of the European Parliament would increase democratic scrutiny. This is particularly relevant where the EU institutions take the substantive listing decision, rather than rubber-stamping the decisions of competent national authorities. As has been the case under the Al Qaeda regime up to now, the adoption of a legal framework pursuant to the rules and standards of the ordinary legislative procedure is necessary to avoid the impression of arbitrary exercise of executive power.

11. The nexus between the CCP and the CFSP: achieving foreign policy goals through trade restrictions and market access Andrea Ott and Guillaume Van der Loo

1. INTRODUCTION: THE KANTIAN TRIANGLE In contrast to the development–security nexus1 and the undisputed links between trade and development,2 the relationship between CFSP and trade is less visible and has attracted less scholarly attention.3 However, it can be argued that trade and foreign affairs have formed an intrinsic bond since the inception of the EU as a value-based regional trade organization. Free and fair trade is a precondition for peace and stability between nations4 and is thus part of the ‘genetic code’ of the EU. The establishment of a customs union and an internal market has served to achieve and maintain peace and prosperity between its members.5 Coined the Kantian Triangle, political science theory argues that in international relations, democracies, economic interdependence and cooperation in international organizations mutually reinforce peace and stability.6 Exporting the EU’s values of peace and prosperity is confirmed explicitly by the Lisbon Treaty. The Union’s external action, and specifically the Common Commercial Policy (CCP), is guided by the principles of promoting peace, its values and the well-being of its people (Arts 3(5) and 21(1) TEU). And these values shall be pursued in a ‘coherent perspective for the EU’s external action as a whole’ by deploying CFSP 1 On this issue, see Chapter 12 in this volume; Hans Merket, The EU and the SecurityDevelopment Nexus (Brill 2016); Mark Furness and Stefan Gänzle, ‘The Security–Development Nexus in European Union Foreign Relations after Lisbon: Policy Coherence at Last? (2016) 35(4) Development Policy Review 475. 2 Maurizio Carbone and Jan Orbie, The Trade-Development Nexus in the European Union – Differentiation, Coherence and Norms (Routledge 2014). Lorand Bartelt, ‘Trade and Development Policy of the European Union’ in M. Cremona (ed.), New Developments in the EU’s External Relations (OUP 2008). 3 Eeckhout points out this awkwardness, see Piet Eeckhout, EU External Relations Law (OUP 2011) 35. On this issue, see also Fabienne Bossuyt, Lotte Drieghe and Jan Orbie, ‘Living Apart Together: EU Comprehensive Security from a Trade Perspective’ (2013) 18 European Foreign Affairs Review 63. 4 This ‘trade promotes peace’ theory is based on the writings of Immanuel Kant and Adam Smith. 5 See in this regard the speech by Jean Monnet to the French National Liberation Committee, 5 August 1943 or the Harvard Speech by Secretary of State George Marshall on 5 June 1947 on the Marshall Plan triggering European unification post-1945. 6 John R. Oneal and Bruce Russett, Triangulating Peace: Democracy, Interdependence, and International Organizations (W.W. Norton 2001).

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The nexus between the CCP and the CFSP 231 instruments alongside trade instruments.7 Such lofty and ambitious statements articulated in primary rules and policy documents need to be backed up by regulatory practice. The CCP–CFSP nexus operates under the wider context of, on the one hand, trade forming a vehicle for achieving peace and stability in third countries and aiming for coherence between external action values and, on the other hand, the EU normative trade system acting in and complying with the wider framework of the World Trade Organization (WTO) rules. The fundamental principles of national treatment and non-discrimination enshrined in the WTO Agreements restrict its members in their pursuit of a ‘politically tainted’ trade policy.8 For example, the 2003 Kimberley process, in which the EU participates,9 introduced a certification, import and export control system to stem the trade in ‘blood diamonds’ and hence contributed to conflict prevention in Africa. This practice is, however, not compatible with the WTO principles and required a waiver by the WTO members.10 The WTO framework, as discussed in the last section of this chapter, also restrains the EU’s use of unilateral trade measures for political purposes. This chapter will analyse the normative framework to create a coherent EU foreign policy11 and streamline CFSP aims with trade aims. This normative framework is characterized by the dichotomy between achieving CFSP goals through traderestrictive measures and trade-facilitation measures. Whereas trade-restrictive measures are to be understood as all EU policy measures that directly or indirectly limit or confine trade (in general or towards a specific country), trade-facilitation measures are considered to be all policy measures that directly or indirectly promote trade or offer preferential market access. The former encompasses, for instance, not only trade embargoes or the suspension of preferential market access (e.g. FTAs) but also the measures that limit the modus operandi of the CCP to bring this policy in line with EU foreign policy objectives (e.g. sustainable development) or international obligations (ratification of the Arms Trade Treaty of 2012). The latter group of measures covers, for example, EU trade agreements concluded for predominantly political purposes (e.g. FTAs included in association agreements) or unilateral preferential market access offered through the GSP+ regime or autonomous trade measures (ATMs). This chapter 7

High Representative of the Union for Foreign Affairs and Security Policy, Implementing the EU Global Strategy, Year 1 – report, 2017. 8 Art. XXI(c) GATT allows WTO members to take action in line with the obligations under the UN Charter and can be only be exceptionally enabled through waivers, see Isabel Feichtner, ‘The Waiver Power of the WTO: Opening the WTO for Political Debate on the Reconciliation of Competing Interests’ (2009) European Journal of International Law 615. See also TBT Agreement, which applies on technical standards and regulations which find exceptions in ‘national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment; fundamental climatic or other geographical factors; fundamental technological or infrastructural problems’. 9 Gloria Fernández Arribas, ‘The European Union and the Kimberley Process’ (CLEER Working Paper No. 3, TMC Asser 2014) . 10 Council Regulation 2368/2002 of 20 December 2002, OJ 2002 L 358/28. First waiver granted in 2003. Decision of 11 December 2012 extends the waiver for the third time from 1 January 2013 until 31 December 2018, WTO, WT/L/876, 14 December 2012. 11 Stefan Oeter, ‘Art. 21 TEU para. 1’ in Herman-Josef Blanke and Stelio Mangiameli (eds), The Treaty of the European Union (TEU), a Commentary (Springer 2013).

232 Research handbook on the EU’s common foreign and security policy will first explore the legal (Section 2) and policy (Section 3) dimensions of the CCP–CFSP nexus. Trade-restrictive measures are then discussed (Section 4), focusing on the essential elements clauses in international agreements (4.1) measures that implement international law obligations (4.2) and the EU’s value-based trade agenda (4.3). Finally, the trade facilitating measures are analysed (Section 5). In particular, the EU’s GSP+ scheme (5.1) and ATMs (5.2) as foreign policy instruments are discussed and compared.

2. THE LEGAL DIMENSION OF THE TRADE–FOREIGN POLICY NEXUS Since the establishment of the European Economic Community (EEC), the CCP has been considered a crucial and central policy for the Union’s external relations, equipping the EEC, as it then was, with an effective tool to pursue policy goals that go beyond mere trade objectives. This, however, was an incremental process over the years, for institutional and policy reasons. The CCP evolved following the completion of the customs union (end of the 1960s) into an area of EU exclusive competence. From the end of the transitional period, the EEC engaged in trade relations with third countries based on trade liberalization and uniform principles.12 Hence, with the completion of the customs union in 1968, important decisions of the Court since the 1970s confirmed and consolidated the exclusivity of the trade competence and policy.13 The Court’s interpretation of the CCP remained important but trade policy further evolved through institutional practice and Treaty reforms in its scope and institutional set-up. Significantly, the latest Treaty revision – the Treaty of Lisbon – not only broadened the scope of the CCP,14 it also brought fundamental changes to the parliamentarization and politicization of EU trade policy through institutional change and the constitutional mandate of policy coherence.15 The CCP moved from the bureaucratic safe haven governed by European Commission trade specialists and national ministries in the 133 Committee (now Trade Policy Committee) to being opened up to the political scrutiny rights of the European Parliament (EP) through the ordinary legislative and consent

12 See the original Art. 110 EEC Treaty and now Art. 206 TFEU and Art. 113 EEC, now Art. 207 TFEU. 13 Opinion 1/75 Local Costs 1975; Case 41/76 Donckerwolcke ECLI:EU:1976:182. 14 For an overview, see Marc Bungenberg and Christoph Herrmann (eds), Common Commercial Policy After Lisbon (Springer 2013). 15 Peter Hilpold, ‘The “Politicization” of the EU’s Common Commercial Policy – Approaching the “Post-Lockean” Era’ in Marise Cremona, Peter Hilpold, Nikolaos Lavranos, Stefan Staiger Schneider and Andreas Ziegler (eds), Reflections on the Constitutionalisation of International Economic Law Liber Amicorum for Ernst-Ulrich Petersmann (Brill 2013); Christoph Vedder, ‘Linkage of the Common Commercial Policy to the General Objectives for the Union’s External Action’ in Bungenberg and Herrmann (eds) (n 14) 142.

The nexus between the CCP and the CFSP 233 procedure.16 And the EP emphasized its agenda to consider human rights principles and other aims under Article 21 TEU in EU (trade) agreements.17 The Treaty of Lisbon also established a horizontal set of principles and objectives guiding the Union’s external policymaking, including the CCP.18 In particular, Articles 205 and 207(1) TFEU explicitly submit the CCP to the general external policy principles and objectives of the Union’s external actions.19 The link created between the CCP and the general provisions of Article 21 TFEU has been considered as leading to a ‘politicization’ of trade policy.20 It is, therefore, mandatory that the CCP should now aim not only at the gradual liberalization of trade, but also at non-economic policy objectives such as the protection of human rights and fundamental freedoms, the promotion of sustainable and environmental development and the strengthening of international security.21 However, in the pre-Lisbon era, the CCP was also political. Even since the early days of the CCP, trade had been a tool to implement political aims through sanctions or embargoes and by international agreements such as association agreements and FTAs linking trade(-related) aspects with non-trade aims. The Court had already recognized in several cases that the Community could pursue policy objectives other than solely commercial ones through CCP instruments, including development cooperation,22 security policy,23 and social and environmental policy objectives.24 Also the streamlining exercise between trade and security had already been sanctioned by pre-Lisbon case law.25 However, Articles 21 TEU and 205 and 207(1) TFEU have now constitutionalized the incremental process of the politicization of the CCP. Since the Treaty of Lisbon, the pursuance of these horizontal principles and objectives in all areas of EU external action is of a binding nature and consequently

16

Before Lisbon and since 1973 the EP was informed on the conclusion of trade agreements. 17 European Parliament Resolution of 17 February 2014 on the implementation of the Treaty of Lisbon with respect to the European Parliament (2013/2130(INI)), paras 43, 44. 18 See Chapter 1 in this volume, and Markus Krajewski, ‘The Reform of the Common Commercial Policy’ in Andrea Biondi, Piet Eeckhout and Stefanie Ripley (eds), EU Law after Lisbon (OUP 2012) 297. 19 Opinion 2/15 Singapore FTA ECLI:EU:C:2017:376, paras 143–145. 20 Vedder (n 15) 142. 21 On the other hand, Arts 3(5) and 21(2) also make explicit references to trade objectives as general objectives of EU trade policy. 22 Opinion 1/78 International Agreement on Natural Rubber 1979 ECR 2871. 23 For example, in the cases Werner and Leifer, the Court held that the foreign policy objectives with regard to dual goods do not necessarily bring this matter outside the framework of the CCP (Case C-70/94 Werner ECLI:EU:C:1995:328, para 11; Case C-83/94 Leifer ECLI:EU:C:1995:329, para 10). 24 See Case 45/86 Commission v Council EU:C:1987:163; Case C-62/88 Greece v Council EU:C:1990:153; and Case C-281/01 Commission v Council EU:C:2002:761. 25 For example, the cases concerning dual-use goods: Werner and Leifer, the Court held that the foreign policy objectives with regard to dual goods do not necessarily bring this matter outside the framework of the CCP (Case C-70/94 Werner (n 23), para 11; Case C-83/94 Leifer (n 23), para 10).

234 Research handbook on the EU’s common foreign and security policy poses challenges resulting from the ambiguity of values and contrasting objectives. The former can be exemplified by the promotion of fair trade as part of a fundamental principle in Article 3(5) TEU next to free trade.26 Article 3(5) TEU is shorthand for the extensive external relations values and principles listed in Article 21(1) TEU. However the reference to free and fair trade in Article 3(5) TEU is neither repeated in Article 21 TEU nor referred to in Article 207 TFEU. It addresses the question of whether it reappears in another value found in Article 21 TEU and 207 TFEU or is to be understood as being shorthand for all non-economic values which the CCP has to take into account.27 If fair trade is considered a separate and stand-alone term next to other non-economic values, it is, however, riddled with ambiguity. And the decisive impulse for fair trade does not derive from a top-down approach through the legislator or policymaker but from a bottom-up initiative.28 Its non-legal and ambiguous character notwithstanding, the introduction of fair trade as a constitutional value is in line with the increasing emphasis on fair trade since the 1990s in policy documents.29 In addition, fair trade featured in the Cotonou Agreement in 2000,30 was low profile in other agreements31 until it made a comeback with specific trade and sustainable development chapters in all recent FTAs,32 and became a reason for withdrawal of GSP+ preferences.33 And finally, the slow death of the WTO Doha Development Round since 2003 also contributed to the EU’s refocus on a fairer approach to trade and the distribution of wealth between developed and developing countries.34 With regard to contrasting objectives, there may be situations where the trade-related aims of the CCP clash with the principles and objectives enshrined in Article 21 TEU, especially considering that the trade and non-trade-related goals of the CCP are of 26

Unlike fair trade, free trade is referred to in Arts 21(2)(e) TEU and 206 TFEU. Markus Krajewski, ‘The Reform of the Common Commercial Policy’ in A Biondi, P Eeckhout and S Ripley (eds), EU Law after Lisbon (OUP 2012). 28 So have fair trade, a labelling organization coordinating national labelling initiatives, and the World Free Trade Organization influenced private businesses to achieve greater equity in international trade and support development that is socially, economically and environmentally sustainable; see also Deborah Martens and Jan Orbie, ‘The European Union and Fair Trade: Hands-off?’ in Sangeeta Khorana and Maria Garcia (eds), Handbook of European Union and International Trade (Edward Elgar Publishing, forthcoming 2018). 29 See for example the Communication from the Commission to the Council on ‘fair trade’ COM (1999) 619 final, Brussels, 29 November 1999. 30 Art. 23(i) Cotonou Agreement, OJ 2012 L 303/1 and Art. 324(1)(c) FTA with Andean States, OJ 2012 L 354/3. 31 Art. 19 of the 2000 FTA with Mexico: the purpose of customs cooperation shall be to ensure fair trade, however, there was no mention in other FTAs, association agreements or the Economic Partnership with ECOWAS and EUMOA from 2014. 32 For instance, in the FTAs with Singapore and Vietnam (referring to economic development, social development and environmental protection). For earlier examples, see the FTA with the Andean States: Art. 324(2)(c): ‘promoting fair and equitable trade, facilitating access to the benefits of this Agreement for all production sectors, the weakest in particular’. 33 Art. 19(1)(d) Regulation No 978/2012 mentions ‘serious and systematic unfair trading practices including those affecting the supply of raw materials, which have an adverse effect on the Union industry and which have not been addressed by the beneficiary country’, OJ 2012 L 303/1. 34 Art. 23(i) Cotonou Agreement. 27

The nexus between the CCP and the CFSP 235 equal value.35 For example, can the EU restrict trade (thus breaching the economic objectives of the CCP) in order to realize its political objectives (e.g. security or the promotion of human rights)? It appears that such restrictive trade measures are still allowed if they indeed pursue one, or several, of the horizontal principles and objectives. The Court has recognized that the EU institutions must be allowed a broad discretion in areas which involve political, economic and social choices on its part [and] that the legality of a measure adopted in those fields can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue.36

In particular, the Court held that the EU legislature enjoys wide discretion in the field of external economic relations, including when negotiating and concluding FTAs.37 Indeed, the political goals of Article 21 TEU are formulated in sufficiently general terms to give the EU institutions political discretion to assess and deal with a potential conflict between the economic objectives of the CCP and broader foreign policy considerations. However, the policy implications of the obligation to meet the horizontal political objectives enshrined in EU primary law remain unclear. For example, how – and to what extent – do the EU institutions have to take into account the human rights situation in a third country before engaging in FTA negotiations? In the Polisario case, the General Court partially annulled the EU Council decision concluding the EU-Morocco liberalization agreement for agricultural products because the Council had failed to examine a priori, carefully and impartially, the relevant facts to ensure that this agreement did not indirectly infringe the fundamental rights of the population of the Western Sahara.38 This judgment was set aside by the Court of Justice on the ground of no legal standing. However, AG Wathelet also concluded that the Council had an ‘obligation’ to check a priori that the agreement did not contribute to an infringement of human rights.39 In any case, it appears that a decision to maintain or develop a trade agreement with a third country that openly violates human rights and fundamental principles should in principle require from the EU institutions an a priori detailed explanation and strong motivation as to how and why the pursuance of the EU’s economic goals should prevail over its fundamental principles and values. 35 The Treaty of Lisbon has turned gradual trade liberalization into a binding objective of the EU’s trade policy by replacing the soft obligation in Art. 131 TEC (i.e. ‘aims to contribute’) with a binding commitment (i.e. the Union ‘shall’ contribute to trade liberalization) in Art. 206 TFEU. 36 Case C-440/14 National Iranian Oil Company v Council EU:C:2016:128, para 77. See also, to that effect, Case C-344/04 IATA and ELFAA EU:C:2006:10, para 80; Case C-266/05 Sison v Council EU:C:2007:75, para 33; Case C-127/07 Arcelor Atlantique and Lorraine and Others EU:C:2008:728, para 57. 37 See Case C-122/95 Germany v Council EU:C:1998:94, paras 77 and 79; and Case T-572/93 Odigitria v Council and Commission EU:T:1995:131, para 38. 38 Case T-512/12 Front Polisario v Council ECLI:EU:T:2015:953. 39 Opinion of AG Wathelet, Case C-104/16 Front Polisario v Council ECLI:EU:C:2016:677, para 262.

236 Research handbook on the EU’s common foreign and security policy

3. THE POLICY DIMENSION OF THE CCP–CFSP NEXUS As discussed above, Article 21 TEU mandates the EU to standardize and streamline other external action aims with EU trade policy. For this reason, the EU is increasingly emphasizing the interaction between trade and the CFSP in different policy documents. For example, the 2003 European Security Strategy merely recognized that ‘trade policies can be a powerful tool for promoting reform’ and that ‘targeted trade measures’ are an important instrument to realize the EU’s foreign policy and security objectives.40 However, in the 2016 Global Strategy for the European Union’s Foreign and Security Policy, trade plays a more important role since it is framed as both an objective and an instrument of the EU’s external action.41 One of the key objectives of the Global Strategy is, next to the promotion of peace and security, democracy and a rules-based global order, the advancement of prosperity inside and outside the EU. The Strategy sees an international economic system and open markets as a crucial objective to safeguard a prosperous Union. But trade is also considered as an instrument, for example as part of an integrated approach to conflicts and crises (e.g. restrictive measures and smart sanctions and fighting a criminal war economy by modernizing the EU’s policy on export control for dual-use goods).42 Moreover, ambitious bilateral trade agreements that promote international regulatory standards as well as labour, environmental, health and safety norms with strategic partners (Transatlantic Trade and Investment Partnership (TTIP), EU–Canada Comprehensive Economic and Trade Agreement (CETA), the Deep and Comprehensive Free Trade Areas (s) with the European Neighbourhood Policy (ENP) countries and FTAs with Asian countries) are considered as crucial instruments to achieve a strong multilateral rules-based order and economic system. A more integrated policy approach has also been visible since the European Commission decided in 2002 to conduct a Trade Sustainability Impact Assessment (Trade SIA) before the start of trade negotiations. This finds its roots in the 1999 sustainable development clause and has evolved into an overall economic, social, human rights and environmental analysis.43 This SIA accompanies the decision by the College of Commissioners to request a negotiating authorization from the Council of the EU, together with the draft negotiating directives to be issued by the Council of the EU. As part of the EU’s better regulation agenda, the Commission applies impact assessment and ex post evaluation for its EU trade policy instrument. The Council and the Commission have also committed themselves to include human rights considerations in their impact assessments of EU FTAs.44 In this context, the European 40

A Secure Europe in a Better World, European Security Strategy, 12 December 2003. ‘Shared Vision, Common Action: A Stronger Europe. A Global Strategy for the European Union’s Foreign and Security Policy’ (European External Action Service 2016). 42 These elements fall under the heading ‘Political Economy of Peace’. 43 See on this . 44 See Council conclusions of 25 June 2012 on Human Rights and Democracy, the EU Strategic Framework on Human Rights and Democracy and an EU Action Plan on Human Rights and Democracy, 11855/12, Annex III, I.1, p. 11. See also, to that effect, Joint Communication from the Commission to the European Parliament and the Council of 28 April 2015 JOIN (2015) 16 final. 41

The nexus between the CCP and the CFSP 237 Ombudsman found in February 2016 that the Commission’s refusal to carry out a prior human rights impact assessment of the EU–Vietnam FTA constituted a ‘maladministration’.45 Although the Ombudsman agreed with the Commission that there appears to be no express and specific legally binding requirement to carry out such an impact assessment, she took the view that it would be in conformity with the spirit of the legal provisions mentioned in the Treaties.46 The Commission aims to improve the ex post monitoring of EU trade agreements through implementation reports. The FTA with the Andean states, for instance, includes a chapter on trade and sustainable development, including multilateral labour standards (Art. 267), and provides for institutional structures of monitoring with domestic mechanisms. The implementation reports are, however, based on the mandate under Regulation 19/2013 implementing the bilateral safeguard clause and stabilization mechanism for bananas in the Agreement.47 Through this link the Commission acquires the mandate to assess the implementation of the Agreement and the application of the safeguard measures and to review ‘challenges in Colombia and Peru as regard human, social, labour and environmental rights’.48 As such, the Commission widens its mandate to live up to the parliamentarization of this policy and the pressures from the EP that human rights clauses need to be linked to effective implementation and compliance with Article 21 TEU values in trade agreements.49

4. TRADE-RESTRICTIVE MEASURES TO ACHIEVE CFSP AIMS Through the WTO multilateral system, the EU is limited in its capacity to impose trade restrictions or sanctions to achieve CFSP aims. In this section, we will highlight the exceptional use of such trade-restrictive measures because an agreement can be suspended for fundamental breaches of human rights or comparable reasons or if the EU has a mandate to tackle illegal trade through unilateral trade bans. This illegality is determined on the basis of international law protecting higher-ranking values such as environmental or conflict prevention.

45 On this issue, see also Marise Cremona, ‘A Quiet Revolution: The Common Commercial Policy Six Years after the Treaty of Lisbon’ (SIEPS Paper No. 2 2017). 46 European Ombudsman, Decision in case 1409/2014/MHZ on the European Commission’s failure to carry out a prior human rights impact assessment of the EU-Vietnam free trade agreement. 47 Second Report 2016 . 48 Indent 11 Regulation 19/2013, OJ 2013 L 17/2. 49 See European Parliament resolution of 13 June 2012 on the EU trade agreement with Colombia and Peru. 2012/2628/RSP; EP Resolution of 26 November 2015 on the accession of Ecuador to the Trade agreement concluded between the EU and its MS and Columbia and Peru; see generally, Andrea Ott, ‘The European Parliament’s Role in EU Treaty-making’ (2016) Maastricht Journal of European and Comparative Law 1022.

238 Research handbook on the EU’s common foreign and security policy 4.1 Suspension of Trade and Cooperation Agreements Through Human Rights Clauses Several examples can be highlighted in which the EU restricts trade for CFSP purposes. The most well known are trade sanctions or restrictive measures under the wider framework of international law, which are not discussed in this chapter.50 In addition to trade sanctions based on UN law, other obligations under international law and international treaty law with a peace and security focus need to be implemented by EU trade measures. For example, the suspension or termination of an international trade (and cooperation) agreement on the basis of an essential element clause falls into this category. Since its introduction by the Lomé IV Association Agreement in 1989, the scope of the essential element clause has broadened, covering provisions on, inter alia, human rights, the prohibition of weapons of mass destruction and migration and good governance.51 The original motivation to include such essential standard clauses from the 1990s was to enable the suspension of such agreements, thereby avoiding the difficulties of suspending trade agreements in line with international law and remedying human rights violations.52 However, the number of (trade) agreements which have formally been suspended is confined to two examples.53 If a reaction from the Union is required to address a specific situation in a third country (e.g. human rights violations), the EU might prefer to act through sanctions or diplomatic procedures instead of opting for the ‘nuclear’ option, i.e. suspending the legal framework (and overall trade relations) with that country.54 Human rights clauses, therefore, amount to a deterrent

50

See Chapter 10 in this volume. These clauses have evolved since their inception but vary through different generations of agreements. Especially the Baltic clause in the Europe Agreements with these countries raised the issue of consistency because all eight Europe Agreements demonstrate variations of these clauses: Peter Van Elsuwege, From Soviet Republics to EU Member States: A Legal and Political Assessment (Brill 2008) 106–107. 52 Uganda and Equatorial Guinea, which could not be remedied by the existing contractual relations under Lomé I and the Trade Agreement with the former Yugoslavia, was suspended in 1991 but challenged unsuccessfully in the court judgment in Racke. See further Barbara Brandtner and Allan Rosas, ‘Human Rights and the External Relations of the European Community: An Analysis of Doctrine and Practice’ (1998) European Journal of International Law 479. 53 In 1991 the bilateral trade agreement with the former Yugoslavia was suspended. However, this suspension could not be based on a human rights clause, instead the agreement was suspended based on UN Security Council Resolution 713 (Council Regulation (EEC) No 3300/91 of 11 November 1991 suspending the trade concessions provided for by the Cooperation Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia, OJ 1991 L 315/1). In the case of the Cooperation Agreement with the Syrian Arab Republic a partial suspension took place, see Council Decisions 2011/523/EU, OJ 2012 L 16/1 and 2012/123/CFSP, OJ 2012 L 54/18. 54 For example, as a response to Russia’s ‘unprovoked violation of Ukrainian sovereignty and territorial integrity’ and annexation of Crimea, the EU did not suspend its PCA with Russia, but adopted a series of CFSP sanctions and suspended negotiations on the ‘New Agreement’ (the envisaged successor of the PCA). On this issue, see Guillaume Van der Loo, The EU-Ukraine 51

The nexus between the CCP and the CFSP 239 against abuses. However, more sophisticated human rights clauses, such as the Articles 96 and 97 Cotonou Agreement mechanism with the African, Caribbean and Pacific (ACP) countries, allow the EU to take ‘appropriate measures’.55 Such measures may include temporary cuts in budgetary aid,56 as in the case of Madagascar in 2010, for example, or the suspension of the 10th European Development Fund (EDF) Country Strategy Paper, as well as all cooperation projects implemented through the government.57 Recently, the Union has aimed to apply a standardized toolbox of human rights and essential clauses but this can create obstacles in treaty negotiations with third countries, and discrepancies in the treatment of countries remain.58 Negotiations with Thailand on a Partnership Cooperation Agreement (PCA) were halted due to Thai concerns about compliance with the essential clauses, in particular regarding the role of the Thai monarch. In 1996 Australia refused to accept the inclusion of a human rights clause in a trade and cooperation agreement.59 Despite standardization, a discrepancy between developed and developing countries in the application of these human rights clauses and their conditionality is evident. Negotiations with Canada hit rock bottom in 2013 on CETA and the parallel negotiated Strategic Partnership Agreement (SPA) once the EU put its standard clauses on the negotiating table. Canada found it difficult to accept standard clauses and conditionality drafted in line with the solution found with the PCA with Singapore, and the human rights clauses are therefore toned down.60 In contrast to the PCA Vietnam (Art. 57 PCA), no conditional link between the FTA and the SPA in case of a breach of the SPA is created but only the suspension of provisions of the Agreement from both sides (Art. 28 SPA Canada) is included. Despite fulfilling its commitment to Article 21 TEU law objectives and the EP’s insistence on consistent Association Agreement and Deep and Comprehensive Free Trade Area: A New Legal Instrument for EU Integration Without Membership? (Brill/Nijhoff 2016). 55 This procedure already existed as Art. 366a in Lomé IV. The current Cotonou Agreement expires in 2020 and the Economic Partnership Agreements rebasing the trade relations between EU and ACP countries, such as the one with the Economic Community of West African States (ECOWAS) states create a link to the human rights principles of the Cotonou agreement. Art. 96 includes consultation and appropriate measures in regard to human rights, democratic principles and the rule of law and Art. 97 covers this in regard to corruption. Art. 96 has been applied 15 times since 2000 in cases involving Fiji (2000, 2007), Zimbabwe (2002), the Central African Republic (2003), Guinea-Bissau (2004, 2011), Togo (2004) and Madagascar (2010). 56 Other appropriate measures were taken against Fiji 2007, Madagascar 2010, Zimbabwe 2002–2014, Liberia 2003, and Guinea-Bissau July 2011–July 2014. 57 Council Decision 2010/371 of 6 June 2010 concerning the conclusion of consultations with the Republic of Madagascar under Article 96 of the ACP-EU Partnership Agreement, OJ 2010 L 169/13. See also Council Decision of 18 July 2011 concerning the conclusion of consultations with the Republic of Guinea-Bissau under Article 96 of the Cotonou Agreement, OJ 2011 L 203/2. 58 This template for negotiations is divided into the three components: (1) Human rights clauses and prohibition of weapons of mass destruction clause, (2) Migration and good governance clauses and (3) Technical clauses on the non-fulfilment of obligations. 59 See Brandtner and Rosas (n 52) 474. 60 Art. 1 SPA: ‘shared values’, Art. 5 ‘share a common commitment’, Art. 6 ‘shared priority’, defining case of special urgency and serious and substantial violation such as a coup d’état, Art. 28 and ‘in the unlikely and unexpected event’.

240 Research handbook on the EU’s common foreign and security policy standardization, the EU needs to adapt to the interests of stronger and strategic trading partners. These variations need to be pragmatically adapted without becoming double standards applied to developed or developing nations. In addition to the examples discussed above, two other groups of trade-restrictive measures can be identified. The first group encompasses those trade-restrictive measures that the EU is required to adopt to implement international commitments. The second group consists of measures that aim to realize some of the EU’s normative foreign policy goals, codified in, for example, Articles 3(5) and 21 TEU. Both of them are discussed here. 4.2 Tackling Illegal Trade by Restrictive Measures or Trade Bans 4.2.1 Importing international law obligations into EU trade policy In all its actions, the EU needs to recognize its international law commitments and the UN Charter according to Articles 3(5) and 21(2)(b) and (c) TEU, including EU trade policy and law. Article 215 TFEU stipulates that cross-policy measures are taken to implement EU sanctions against the backdrop of CFSP measures. These sanctions were based on the CCP legal base in the past,61 such as in 1982 when the EEC applied trade sanctions against Argentina in reaction to its invasion of the Falkland Islands.62 Nowadays, trade embargoes against states and individuals are one of the instruments in the toolbox of EU sanctions.63 Other international law obligations arise from UN Security Council Resolution 1540, the Chemical Weapons Convention and the Biological Weapons Convention to restrict and ban trade. The 2015 ‘Trade for All’ Communication announced ‘an ambitious modernisation of the EU’s policy of export controls of dual-use goods, including the prevention of the misuse of digital surveillance and intrusion systems that results in human rights violations’.64 Unlike weapons of mass destruction and landmines,65 trade in conventional weapons had not been subject to any legally binding global instrument until the Arms Trade Treaty (ATT) of 2012. Based on a UN Resolution, the ATT obliges its signatory parties to monitor arms exports and they may not authorize the transfer under the circumstances that UN arms embargoes need to be upheld if the transfer would violate international treaty obligations or if a state has the knowledge at the time of authorization that these conventional arms are used in case of genocide, crimes against humanity and grave breaches of the Geneva Convention of 1949 (establishing standards for humanitarian treatment in times of war). The EU contributed 61 Though see the legal difficulties encountered when the EEC had for the first time to implement UN sanctions against Rhodesia in 1965; see in more detail Panos Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law: EU Constitutional Law (Hart Publishing 2001) 59. 62 Regulation 596/82, OJ 1982 L 72/15 and for further examples see Sara Poli and Maria Tzanou, ‘The Kadi Rulings: A Survey of the Literature’ (2009) Yearbook of European Law 533. 63 For instance, in the case of Eritrea, embargo on arms and related material, ban on provision of certain services, Council Decision 2010/127/CFSP, OJ 2010 L 51. 64 European Commission, ‘Trade for all. Towards a more responsible trade and investment policy’ COM (2014) 497, 14 November 2015. 65 See Chapter 9 in this volume.

The nexus between the CCP and the CFSP 241 actively to the negotiation process and argued for a best practice example in its export regime on dual-use goods and its common regime on defence-related products. The EU could not sign this ATT, however, because it is not a state and is only involved through an observer status in the UN. The EU was also not granted a RIO (regional integration organization) exception to this UN Treaty by the UN members.66 On 27 May 2013 the EU adopted Council Decision 2013/269/CFSP authorizing Member States to sign, in the interest of the Union and according to Article 2(1) TFEU, the ATT in the subject field which falls within the EU’s exclusive trade competence.67 These examples demonstrate that despite trade being an exclusive EU competence, once trade policy enters the realm of CFSP, Member States might get involved for institutional and substantive reasons and curtail effective policymaking. 4.2.2 Trade bans, sustainable development and human rights protection The above analysis makes the point that the EU is under an obligation in all its external relations policies to ‘uphold and promote its values and interests’, which include ‘sustainable development of the Earth, free and fair trade, eradication of poverty and the protection of human rights’ (Art. 3(5) TEU). In different legal and policy documents, the EU emphasizes the interdependence of sustainable development, fair and ethical trade and human rights68 and the importance of responsible management of supply chains through responsible business conduct and corporate social responsibility practices.69 The responsible management of supply chains addresses new forms of global trading resulting from the fragmentation of production processes.70 In addition, illegal trade in environmentally sensitive goods such as wildlife, timber, fish and hazardous waste is covered by national and international regulatory regimes. To counter illegal trade in these environmentally sensitive goods, the EU adopted regulatory measures on conflict minerals (the 2017 Conflict Minerals Regulation),71 illegal logging (EU Timber Regulation, in force since 2013)72 and the IUU Regulation to

66 This exemption enables the EU’s participation in the conclusion of a UN multilateral agreement and such a RIO exception is provided in the UN Convention on the Law of the Sea. 67 OJ 2013 L 155/9. 68 European Commission, ‘Trade for all’ (n 64) 24; European Commission ‘Non-paper on Trade and Sustainable Development (TSD) chapters in EU Free Trade Agreements (FTAs)’, 11 July 2017. 69 So, for example, the EU-Mercosur FTA draft, 10 March 2017 . 70 See on this a 2013 UNCTAD study on global supply chains: Trade and economic policies in developing countries, Trade and economic policies in developing countries, Policy issues in International Trade and Commodities Study Series No. 55. 71 Regulation (EU) 2017/821 of the European Parliament and of the Council of 17 May 2017 laying down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas, OJ 2017 L 130/1. 72 Regulation (EU) No 995/2010 of the European Parliament and of the Council of 20 October 2010 laying down the obligations of operators who place timber and timber products on the market, OJ 2010 L 395/23.

242 Research handbook on the EU’s common foreign and security policy combat illegal fishing.73 Another example is the EU Seals Regulation banning the import and sale of seal products with the exception of Inuit hunted seal products.74 These EU regulatory acts aim to export the EU’s values and principles, impact third countries and their traders, and restrict or even exclude trade. The EU pursues these aims in the wider international framework and its own values but without always operating under a clear mandate of binding international rules but an uncoordinated web of autonomous state rules and standard-setting tools forming mainly soft law rules.75 There might be a certain consensus that these measures define higher values and are triggered to prevent Member States from acting unilaterally. However, these measures are at risk of breaching WTO law and have to tread a fine line between illegal and legal trade.76 The EU Timber Regulation and Conflict Minerals Regulation team up with similar regulatory measures taken by other industrial nations, the US, Australia, Japan or Canada.77 Both EU acts implement a ban on illegal products, aim to achieve greater transparency and execute mandatory due diligence systems for traders in timber and conflict minerals in line with international soft law rules. The Timber Regulation bans illegal timber in the EU and requires companies that place wood or wood products on the EU market for the first time to assess the risk that those products may have come from an illegal source and companies have to reduce any identified risks.78 The Conflict Minerals Regulation will be applicable from 2021 onwards and will implement a compulsory system of due diligence.79 Due diligence in 73

Council Regulation (EC) No. 1005/2008 of 29 September 2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, OJ 2008 L 286/1. 74 Regulation (EC) No 1007/2009 of the European Parliament and of the Council of 16 September 2009 on trade in seal products, OJ 2009 L 286/36. 75 So is the international (soft law) framework for the EU Timber Regulation relevant: 1972 Stockholm declaration, 1992 Rio Declaration and 2001 Bali Declaration. The Conflicts Minerals Regulation finds its inspiration in the OECD Guidelines for multilateral enterprises and UN guiding principles on business and human rights. On these standard-setting devices see Meng Du and Fei Deng, ‘International Standards as Global Public Goods in World Trading System’ (2016) Legal Issues of Economic Integration 113. 76 Dylan Geraets and Bregt Natens, ‘The WTO Consistency of the European Union Timber Regulation’ (Working Paper No. 120, Leuven Centre for Global Governance Studies 2013) ; Enrico Partiti and Steffen van der Velde, ‘Curbing Supply-Chain Human Rights Violations Through Trade and Due Diligence. Possible WTO Concerns Raised by the EU Conflict Minerals Regulation’ (2017) 51 Journal of World Trade 6. 77 For illegal logging: Australian Illegal Logging Prohibition Act and amendment of the US Lacey Act. For conflict minerals: the US Dodd-Frank Sec.1502, but suspended in February 2017 by US President Trump. 78 The literature critically assessed that it excludes traders buying and selling within the EU market and no printed material, such as books, is covered, see Laurens Ankersmit, Green Trade and Fair Trade in and with the EU (CUP 2017) 54, 55. 79 The European Parliament amended the Commission proposal from a voluntary to a mandatory due diligence system, see further: Steffen Van der Velde, ‘The End of Conflict Minerals on the EU Market?’ (Policy Brief No. 3, Asser Institute March 2017); Wybe Douma and Steffen Van der Velde, ‘Protection of Fundamental Rights in Third Countries through the EU External Trade Policy: The Cases of Conflict Minerals and Timber’ in C. Paulussen, T. Takács,

The nexus between the CCP and the CFSP 243 regard to conflict minerals implies that the companies concerned apply supply chain controls in all conflict-affected or high-risk areas, in order to identify the risk of funding harmful activities. Crucial questions arise about whether such unilateral acts violate the prohibition of extraterritoriality and WTO rules. The former prohibits the international community from moving its laws and jurisdiction beyond its borders, with minor exceptions, such as, for instance, the principle of universal jurisdiction in criminal law.80 The latter concerned the question of whether such regulatory measures form recognized international standards under the TBT (Technical Barriers to Trade) Agreement and can be justified under the Chapeau of Article XX (justification of breaches of GATT Agreement). Both issues have been addressed by the CJEU81 and in the WTO dispute settlement system.82 Whilst WTO compatibility is difficult to establish, no breach of the principle of territoriality can be detected because a sufficient link between the regulatory acts and the EU territory exists.83 The Appellate Body in the EC – Seals dispute argued that, in principle, the EU Seals Regulation could rely on the public morals exception which the EU was not allowed to apply in a discriminatory manner.84

5. TRADE FACILITATION AND PREFERENTIAL MARKET ACCESS TO ACHIEVE CFSP GOALS In addition to trade-restrictive measures, the EU aims to achieve its foreign policy objectives by offering, sometimes under certain conditions, additional preferential market access. As already noted, the EU’s FTA policy has always been ‘political’ although following the 2006 Global Europe Strategy, economic considerations seem to prevail when selecting potential FTA partners. Nevertheless, the EU’s DCFTAs concluded with Ukraine, Moldova and Georgia illustrate that (geo-)political considerations still play an important role in the EU’s trade policy.85 Moreover, the sustainable development chapters included in the EU’s new generation of FTAs also aim to V. Lazic´, and B. Van Rompuy (eds), Fundamental Rights in International and European Law (TMC Asser Press 2016). 80 Cedric Ryngaert and Marieke Koekkoek, ‘Extraterritorial Regulation of National Resources: A Functional Approach’ in J. Wouters, A. Marx, D. Geraets and B. Natens (eds), Global Governance through Trade, EU Policies and Approaches (Edward Elgar Publishing 2015) 245–271. 81 Case C-366/10 ATAA ECLI:EU:C:2011:864. 82 European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400 & 401/R (adopted as modified, 18 June 2014). 83 See especially EC – Seals case and ATAA case, in detail: Ryngaert and Koekkoek (n 80); Meng Du, ‘Permitting Moral Imperialism? The Public Morals Exception to Free Trade at the Bar of the World Trade Organisation’ (2016) Journal of World Trade 686. See on the Conflict Minerals Regulation: Enrico Partiti and Steffen van der Velde, ‘Curbing Supply-chain Human Rights Violations through Trade and Due Diligence. Possible WTO Concerns Raised by the EU Conflict Minerals Regulation’ (Asser Institute Research Paper series, June 2017). 84 In addition, the Appellate Body departed from the Panel’s categorization of the EU’s seal regime as a technical regulation in the sense of Art. 1 TBT. 85 See Chapter 15 in this volume.

244 Research handbook on the EU’s common foreign and security policy contribute to several of the EU’s external policy objectives, related to international labour standards and environmental protection. There are also several other ad hoc trade measures that the EU adopts in light of broader foreign policy objectives. For example, trade facilitation is also implemented through (quasi-CFSP instruments such as border missions. The 2005 EUBAM mission to Moldova and Ukraine, which is strictly speaking not a CFSP instrument, has a strong trade-facilitation dimension, focusing on issues such as trade facilitation, customs fraud and DCFTA implementation.86 Or, as part of a broader support package for Jordan in the context of the Syrian refugee crisis, the EU aimed to facilitate access to the EU market by temporarily relaxing its rules of origin for the country. In order to stimulate the participation of Syrian refugees in Jordan’s formal labour market, this initiative allows producers in Jordan to use an alternative set of rules of origin (i.e. those applied under the Everything But Arms (EBA) schema) for exports to the EU, provided that production takes place in one of the 18 geographic zones in Jordan and includes the creation of jobs for Syrian refugees.87 However, the most obvious example of this practice is the EU’s GSP+ arrangement, which provides additional market access to developing countries complying with a set of international conventions on human and labour rights, environmental protection and good governance. However, the GSP+ can hardly be seen as a flexible foreign policy instrument as the EU can only give additional market access through the GSP+ arrangement if the beneficiary country meets certain economic and political criteria. Moreover, the WTO framework imposes legal restraints on the EU’s discretion to use the GSP+ for political purposes. This may explain why the EU increasingly relies instead on ATMs to offer market access as a foreign policy tool. Yet the adoption of such ATMs may also face procedural challenges within the EU and the WTO. The use of both instruments for broader CFSP purposes is discussed below. 5.1 The GSP+ Preferences: Triangle Between Trade, Development and CFSP Aims Since its adoption by the EC in 1971, the EU’s Generalised System of Preferences (GSP) has always been a ‘pure’ CCP instrument, based solely on Article 207 TFEU (ex. Art. 133 TEC).88 However, positive conditionality was only introduced in the GSP 86 The legal basis of this EUBAM mission is a Memorandum of Understanding signed by the Commission and the governments of Ukraine and Moldova. The EUBAM was established in the pre-Lisbon era as a first-pillar instrument, funded by European Commission instruments. 87 Decision 1/2016 of the EU-Jordan Association Committee amending the provisions of Protocol 3 to the Euro-Mediterranean Agreement establishing an Association ‘between the European Communities and their Member States, of the one part, and the Hashemite Kingdom of Jordan, of the other part, concerning the definition of the concept of originating products’ and the list of working or processing required to be carried out on non-originating materials in order for certain categories of products, manufactured in dedicated development zones and industrial areas, and connected with generating employment for Syrian refugees and Jordanians, to obtain originating status, OJ 2016 L 233/6. 88 Although the first GSP Regulations adopted in 1971 did not explicitly refer to ex Art. 113 EEC on the CCP, they were clearly adopted as CCP measures (Regulations 1308/1971 to

The nexus between the CCP and the CFSP 245 system in the 1994 GSP revision89 and implemented in 1998. Three specific ‘arrangements’ were established granting more favourable treatment to countries introducing effective policies and/or ratifying the relevant international conventions with regard to (i) labour rights (e.g. ILO Conventions), (ii) the environment (e.g. the International Tropical Timber Organization (ITTO)) and (iii) combating drug production and trafficking.90 However, the use of the GSP+ system to pursue political objectives is constrained by both the WTO rules and the political and economic criteria that beneficiary countries have to meet. The legal constraints imposed by the WTO framework became clear when India contested the EU’s special GSP preferences to Pakistan in 2001. In the post-9/11 context, which turned Pakistan into a frontline state in the war against terrorism and drug trafficking, the European Commission added Pakistan to the list of beneficiaries of the ‘drug arrangement’. India challenged this decision in the WTO by arguing that the EU’s special arrangements needed to be granted in a generalized and nondiscriminatory way in order not to treat developing countries differently. In December 2003, the Panel indeed concluded that the ‘GSP drug arrangement’ was inconsistent with Article I:1 GATT (the most-favoured nation (MFN) principle) and was not justified under the Enabling clause.91 On appeal, the Appellate Body also concluded in 2004 that GSP preferences must be based on clear criteria, that identical treatment should be available to all similarly situated GSP beneficiaries and that there must be a clear link between the preferential treatment provided and the development objective.92 Thus, pursuant to WTO rules, the GSP system cannot simply be used to reward countries for their contribution to the EU foreign policy goals, such as the fight against terrorism.93 In response to the WTO ruling, in 2006 the EU replaced the three special incentive-based arrangements by one integrated ‘special incentive arrangement for

1314/1971, OJ 1971 L 142). The subsequent GSP Regulations explicitly had the CCP Treaty provision as a legal basis (see for example Council Regulation (EC) No 3281/94 of 19 December 1994 applying a four-year scheme of generalised tariff preferences (1995–1998) in respect of certain industrial products originating in developing countries, OJ 1994 L 348/1. 89 Council Regulation (EC) No 3281/94, ibid. 90 Council Regulation (EC) No 1154/98 of 25 May 1998 applying the special incentive arrangements concerning labour rights and environmental protection provided for in Articles 7 and 8 of Regulations (EC) No 3281/94 and (EC) No 1256/96 applying multiannual schemes of generalised tariff preferences in respect of certain industrial and agricultural products originating in developing countries. The special arrangement to combat drug production and trafficking was introduced by Council Regulation (EC) No 2501/2001 of 10 December 2001 applying a scheme of generalised tariff preferences for the period from 1 January 2002 to 31 December 2004, OJ 2001 L 346. 91 WTO, European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries, Report of the Panel, WT/DS246/R, 1 December 2003. 92 WTO, European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries, AB-2004-1, Report of the Appellate Body, WT/DS246/AB/R, 7 April 2004. 93 Lorand Bartels, ‘The WTO Legality of the EU’s GSP+ Arrangement’ (2007) 10 Journal of International Economic Law 4.

246 Research handbook on the EU’s common foreign and security policy sustainable development and good governance’, now known as the GSP+ system.94 In light of the Treaty of Lisbon and the Global Europe Strategy, the EU’s GSP system was further revised in 2012.95 These different GSP reforms broadened the list of international conventions relevant to the GSP+, going beyond the core labour conventions and also covering sustainable development and human rights, developed strict economic criteria, and refocused priorities on ‘the neediest’. In order to be eligible for the GSP+ regime, applying countries must ratify and implement 27 conventions96 (without formulating reservations prohibited by these conventions) and must be ‘vulnerable’ in terms of their economies’ diversification and import volumes.97 These strict political and economic criteria limit the number of countries eligible for the GSP+ regime, and therefore also the political discretion of the Commission to randomly add a country to the GSP+ list for pure foreign policy considerations. The Commission still enjoys a broad discretion to withdraw existing GSP preferences for political reasons, however. Negative conditionality was introduced in the 1994 GSP revision and the 2005 Regulation also introduced the possibility of downgrading GSP+ privileges to the general scheme. According to current GSP Regulation, all three GSP arrangements (i.e. the general GSP, GSP+ and EBA) can be withdrawn by the Commission (through an implementing act) in the event of ‘serious and systematic violation of principles’ laid down in the 15 GSP+ conventions related to core human and labour rights.98 In addition, the latest GSP Regulation adds several additional grounds for temporary withdrawal of preferences, including export of goods made by prison labour and failure to comply with international conventions on anti-terrorism and money laundering.99 Although it is easier for the Commission to withdraw GSP+ preferences for political reasons than granting them, the general GSP scheme was only withdrawn in two cases (Myanmar (1997) and Belarus (2006)). Under the previous GSP Regulation Sri Lanka’s GSP+ preferences were also downgraded to the general regime (2010).100 It has been observed that in both cases of complete withdrawal, the GSP withdrawal had followed CFSP sanctions.101 However, 94 Council Regulation (EC) No 980/2005 of 27 June 2005 applying a scheme of generalised tariff preferences, OJ 2005 L 169/1. 95 Regulation (EU) No 978/2012 of 25 October 2012 applying a scheme of generalised tariff preferences and repealing Council Regulation (EC) No 732/2008, OJ 2012 L 303. 96 Fifteen related to ‘core human and labour rights UN/ILO conventions’ and 12 conventions related to the environment and to governance principles. 97 The vulnerability criterion implies that a country can only benefit from GSP+ if it is not competitive on the EU market (import-share ratio) and it does not have a diversified export base (diversification ratio). For a critical review of the 2012 GSP reform, see G. Siles-Brügge, ‘EU Trade and Development Policy Beyond the ACP: Subordinating Developmental to Commercial Imperatives in the Reform of the GSP’ (2014) 20(1) Contemporary Politics 49. 98 Art. 19(1)(a) Regulation (EU) No 978/2012 (n 95). 99 ibid, Art. 19. 100 Implementing Regulation (EU) No 143/2010 of 15 February 2010 temporarily withdrawing the special incentive arrangement for sustainable development and good governance provided for under Regulation (EC) No 732/2008 with respect to the Democratic Socialist Republic of Sri Lanka, OJ 2010 L 45/1. 101 Clara Portela and Jan Orbie, ‘Sanctions under the EU Generalised System of Preferences and Foreign Policy: Coherence by Accident?’ (2014) 20(1) Contemporary Politics 63.

The nexus between the CCP and the CFSP 247 there is no link between CFSP sanctions and GSP withdrawal as both instruments address different kind of violations (whereas CFSP sanctions support the broad CFSP objectives, the grounds for GSP withdrawal are narrower and only relate to breaches of core human and labour rights). Therefore, the EU does not develop mechanisms or policies to ensure coherence between CFSP sanctions and GSP withdrawal.102 Although the withdrawal of GSP+ preferences is rare, the GSP+ monitoring procedures give the Commission a strong and broad mandate to monitor domestic developments related to the GSP+ Conventions. In order to address previous inconsistencies with regard to the application of the GSP+ system, the 2012 GSP+ revision includes stricter monitoring procedures to evaluate whether there is a ‘serious failure’ to effectively implement these conventions.103 GSP+ applicants must also accept without reservation the reporting requirements imposed by those conventions and agree to participate in and cooperate with the EU GSP+ monitoring led by the European Commission.104 The GSP Regulation even states that the biennial GSP+ monitoring report may cover, in addition to compliance with the obligations under the listed conventions, ‘any information the Commission considers appropriate’.105 This monitoring procedure enables the EU to use the threat of GSP+ withdrawal to address a broad range of issues in the GSP+ beneficiary countries. For example, in May 2017 the Commission added Sri Lanka again to the GSP+ scheme as it considered that the country met all the relevant criteria.106 However, the Commission noted that it will closely monitor some issues of concern identified in the application process, including Sri Lanka’s efforts to ensure that its counter-terrorism is fully in line with international human rights conventions and the definitive ending of the use of torture by security forces.107 Or, more recently, as a reaction to the extrajudicial killings taking place in the Philippines linked to President Duterte’s so-called ‘war on drugs’ and the legislative proposals to reinstate the death penalty for drug-related crimes and to lower the age of criminal responsibility from 15 to nine years old, the EP and the Civil Society Dialogue on GSP+ urged the Commission to consider the removal of GSP+ preferences for the Philippines in the absence of substantive improvements.108 102 Clara Portela and Kolja Raube, ‘The EU Polity and Foreign Policy Coherence’ (2001) 8(1) Journal of Contemporary European Research 1. 103 For example, Colombia and Guatemala benefited from the GSP+ regime despite being seriously criticized by the ILO (Jan Orbie and Lisa Tortell, ‘The New GSP+ Beneficiaries: Ticking the Box or Truly Consistent with ILO Findings?’ (2009) 14 European Foreign Affairs Review 663). 104 Art. 9(1)(f) Regulation (EU) No 978/ 2012 (n 95). 105 ibid, Art. 14(2). 106 Commission Delegated Regulation (EU) 2017/836 of 11 January 2017 amending Annex III to Regulation (EU) No 978/2012 of the European Parliament and of the Council applying a scheme of generalised tariff preferences OJ 2017 L 125. For the Commission’s positive report on the assessment of the application for GSP by Sri Lanka, see SWD (2016) 474. 107 European Commission, ‘EU grants Sri Lanka improved access to its market as incentive for reform’ (Press release, 17 May 2017). 108 European Parliament resolution of 16 March 2017 on the Philippines – the case of Senator Leila M De Lima (2017/2597(RSP)); Civil Society Dialogue meeting on the GSP+, 12 July 2017, minutes of the meeting at . After a GSP+ monitoring mission to the Philippines (26 January–2 February 2017),

248 Research handbook on the EU’s common foreign and security policy Finally, it should be noted that there are also cases where geostrategic foreign policy considerations precluded the EU in several cases from withdrawing GSP preferences. For example, it has been argued that the EU did not withdraw trade GSP preferences for Pakistan in 1998, after complaints about forced child labour in the carpet industry in Pakistan, because the EU, in particular several Member States, did not want to jeopardize the ongoing negotiations for a cooperation agreement with Pakistan.109 5.2 Autonomous Trade Measures In addition to the GSP+ scheme, the EU is increasingly relying on ATMs to offer third countries unilateral market access. Over the past decade, the EU has unilaterally offered additional preferential market access to several countries through ATMs, mainly as support measures in emergency or disaster situations. All these ATMs were adopted as CCP instruments, solely based on Article 207 TFEU. However, these ATMs also have a strong ‘political dimension’ as they serve broader foreign policy goals (e.g. support measures in emergency or disaster situations), or were influenced by the EU’s strategic interests. Moreover, in most cases the EU has made the application of these ATMs conditional on the fulfilment of several human rights considerations. For example, trade was – and still is – a key component of the Stabilisation and Association Process. Therefore, in 2000 the Community adopted unilateral trade preferences through ATMs towards the Western Balkan countries which aimed to ‘support economic integration with the EU and hence foster political stability and economic progress in the entire region’. These were linked to the ‘respect for fundamental principles of democracy and human rights and the Western Balkan countries’ and ‘readiness to engage in effective economic reforms and in regional cooperation’.110 After several revisions, in 2015 the EU extended these ATMs to 2020 and added a specific temporary suspension mechanism for ‘systematic violations of human rights, including core labour rights, of fundamental principles of democracy and of the rule of law by its beneficiaries’.111 specific areas ‘in which progress is strongly encouraged’ were indicated, in particular regarding criminal justice and the prevention and treatment of drug use. With regard to the Philippines, the Commission’s most recent GSP report noted progress in some areas such as labour rights and social–economic rights, but stressed that ‘serious concerns remain on the way the campaign against illegal drugs is conducted, in particular concerning the right to life, legal safeguards, effective investigation and prosecution, on the cooperation with UN mechanisms as well as on the possible re-introduction of the death penalty and the possible lowering of the age of criminal responsibility’ (European Commission, ‘Report on the Generalised Scheme of Preferences covering the period 2016–2017’, 19 January 2018, COM (2018) 36 final). 109 Thomas Greven, Social Standards in Bilateral and Regional Trade and Investment Agreements (Occasional Paper 16, Friedrich Ebert Stiftung 2005). 110 Council Regulation (EC) No 2007/2000 of 18 September 2000 introducing exceptional trade measures for countries and territories participating in or linked to the European Union’s Stabilisation and Association process, OJ 2000 L 295. For the Commission’s proposal, see COM (2000) 351. 111 Regulation (EU) 2015/2423 of the European Parliament and of the Council of 16 December 2015 amending Council Regulation (EC) No 1215/2009 introducing exceptional trade measures for countries and territories participating in or linked to the European Union’s

The nexus between the CCP and the CFSP 249 It is also clear that (geo-)political considerations play a role in the adoption of ATMs. These became clearly visible in the EU’s trade policy vis-à-vis the Eastern Partnership (EaP) countries. It is no secret that the Kremlin opposes the EU’s association agreements (AAs) with these countries as it fears that this would pull them out of Russia’s traditional sphere of influence. In this context, Russia adopted several trade-related restrictions against Moldova and Ukraine before and after the signature of these agreements, in order to force these countries away from closer EU association. However, in both cases the EU reacted by adopting ATMs for Moldova and Ukraine, aiming to compensate for their loss on the Russian market and as a diplomatic move to support these countries’ ‘European choice’. For example, in the framework of the ENP, in 2008 the Community granted Moldova unilateral preferential treatment through ATMs.112 Initially, these ATMs mainly had a development goal as the Commission considered that providing Moldova, ‘the poorest country on the European continent’, with improved access to the EU market would support its economic development.113 However, the EU broadened the scope of these ATMs as a reaction to Russia’s import ban on several Moldovan products. For example, in September 2013, not coincidentally two months before the scheduled initialling of the EU-Moldova AA, Russia banned wine imports from Moldova – officially for food safety concerns. In order to show ‘political will to respond to unjustified and arbitrary pressures exerted by Russia on its Eastern partners’114 and to support the government of Moldova in its efforts to initial and sign the Association Agreement, in December 2013 the EU amended the ATMs towards Moldova to fully liberalize, in line with the expected DCFTA, wine imports from this country.115 To support the new pro-EU government in Ukraine after the Maidan Revolution, and as a support measure to the economic crisis in the country in the aftermath of these turbulent events, the EU also adopted ATMs for Ukraine.

stabilisation and association process and suspending its application with regard to Bosnia and Herzegovina, OJ 2015 L 341/18. 112 Council Regulation (EC) No 55/2008 of 21 January 2008 introducing autonomous trade preferences for the Republic of Moldova and amending Regulation (EC) No 980/2005 and Commission Decision 2005/924/EC, OJ 2008 L 20/1. 113 Proposal for a Council Regulation introducing autonomous trade preferences for Moldova and amending Regulation (EC) No 980/2005 and Commission Decision 2005/924/EC COM (2007) 705. 114 European Parliament, ‘MEPs back freeing wine trade with Moldova to offset Russian trade sanctions’ (Press release, 10 December 2013). 115 Regulation (EU) No 1384/2013 of the European Parliament and the Council of 17 December 2013 amending Council Regulation (EC) No 55/2008 introducing autonomous trade preferences for the Republic of Moldova, OJ 2013 L 354/85. Again as a reaction to Russian import bans, the EU broadened these ATMs in December 2015 (see Regulation (EU) No 1383/2014). It has to be noted that as early as 2010 Russia imposed restrictions on imports of wine from Moldova. Also then, the EU responded by increasing the existing tariff rate quotas for Moldovan wine (on this issue, see Frank Hoffmeister, ‘The European Union’s Commercial Policy a Year After Lisbon – Sea Change or Business as Usual?’ in Panos Koutrakos (ed.), The European Union’s Relations One Year after Lisbon (CLEER Working Paper No. 3, 2011) 89.

250 Research handbook on the EU’s common foreign and security policy Following a proposal from the European Commission,116 the EP and Council adopted, after a ‘fast-track’ approval process,117 Regulation 374/2014 ‘on the reduction or elimination of customs duties on goods originating in Ukraine’.118 This Regulation unilaterally reduced or eliminated customs duties on goods originating in Ukraine in full compliance with the EU’s DCFTA, which at that time was not yet provisionally applied.119 This ATM also has to be seen in the context of Russia’s trade-related retaliation measures against the EU-Ukraine AA and DCFTA. For example, the rapporteur in the EP on this Regulation stated that ‘as Putin closes Russian markets for Ukrainian exports, we are opening them’.120 Thus, if the EU wants to unilaterally offer a third country additional preferential market access for political reasons, it is easier to do so through ATMs than through adding the country to the GSP+ scheme. Compared to the GSP+ scheme, there are no political or economic criteria to be met for (potential) ATM beneficiaries. Nevertheless, the adoption of such ATMs can be complicated by political opposition within the EU or at the level of the WTO. With regard to the former, the adoption of an ATM requires a legislative act based on Article 207 in accordance with the ordinary legislative procedure. This implies, since the Treaty of Lisbon, that both the Council and the EP are fully involved in the adoption of ATMs. This is a more demanding procedure compared to adding a country to the GSP+ scheme, which requires only the adoption of a delegated act by the Commission.121 Because most of these ATMs concern sensitive products, including agricultural products, Member States, and in particular MEPs from 116 European Commission, ‘Proposal for a Regulation of the European Parliament and the Council on the reduction or elimination of customs duties on goods originating in Ukraine’ COM (2014) 166 final. 117 The Commission encouraged the EP and Council to ‘fast-track’ the approval process so that the tariff reduction could be in place in June 2014: European Commission, ‘European Commission proposes temporary tariff cuts for Ukrainian exports to the EU’ (Press release, 11 March 2014). With the aim of implementing the unilateral DCFTA tariff reduction as soon as possible, no amendments were made by the EP to the Commission’s proposal. 118 Regulation (EU) No 374/2014 of the European Parliament and of the Council of 16 April 2014 on the reduction or elimination of customs duties on goods originating in Ukraine, OJ 2014 L 118/1. 119 This Regulation incorporates in its Annex the Union’s DCFTA Schedule of Concessions (included in Annex I-A of the EU-Ukraine AA). 120 European Parliament, ‘MEPs cut customs duties on imports from Ukraine’ (Press release, 3 April 2014). But after the signature of the EU-Ukraine AA, Russia also threatened to completely suspend its preferential trade with Ukraine, laid down in the 2011 Commonwealth of Independent States FTA. During a trilateral ministerial meeting between the EU, Ukraine and Russia in September 2014, it was decided, after strong pressure from Russia, to delay the provisional application of the DCFTA until 31 December 2015. Meanwhile, the EU would continue to apply its ATMs towards Ukraine. For a more detailed overview of these developments, see Guillaume Van der Loo, The EU-Ukraine Association Agreement and Deep and Comprehensive Free Trade Area: A New Legal Instrument for EU Integration Without Membership? (Brill/Nijhoff 2016). 121 Art. 10(4) Regulation No 732/2008. However, the Commission needs to notify the EP and the Council when adopting such a delegated act. The EP and the Council may object to the delegated act within a period of two months of the notification, after which the Commission is required to repeal the act (see Arts 36 and 37 of the Regulation).

The nexus between the CCP and the CFSP 251 southern Member States, insist on specific safeguard measures. For example, after the terrorist attacks in Sousse on 26 June 2015, the EU decided as a support measure to boost the Tunisian economy to import 70,000 tonnes of Tunisian olive oil (Tunisia’s main agricultural export). The EU offered a temporary, unilateral duty free tariff rate quota of 35,000 tonnes annually (70,000 in total) for Tunisia’s exports of olive oil, in the form of ATMs.122 This measure was approved by the EP on 25 February 2016, but to meet concerns of the EU olive producers, MEPs inserted additional safeguards.123 Similarly, in view of the difficult economic situation and ongoing reform process in Ukraine, the European Commission proposed to improve access for Ukraine to the EU market for some industrial and agricultural products. The Commission proposed temporary ATMs for Ukraine in 2016, broadening the scope of the DCFTA that provisionally entered into force on 1 January 2016.124 These ATMs would be granted in the form of zero-tariff quotas for certain agricultural products in addition to the preferential tariff rate quotas set out in the DCFTA, and the partial or full removal of import duties on several industrial products. Also in this case, the EP amended the Commission proposal by reducing the volume of the additional quota for certain agricultural products.125 The EU’s ATMs can also be challenged at the WTO level. Given that the unilateral introduction of trade preferences would be in breach of the MFN principle (Article I(1) GATT) and the principle of non-discriminatory administration of quantitative restrictions (Article XIII GATT), the EU needs to request a waiver pursuant to Article IX:3 of the WTO when applying such ATMs.126 After the devastating floods in Pakistan in July 2010, the September 2010 European Council called not only for the provision of traditional humanitarian aid, but also for the adoption of additional measures including granting ‘exclusively to Pakistan increased market access to the EU through the immediate and time limited reduction of key imports from Pakistan’.127 After the 122 Regulation (EU) 2016/580 of the European Parliament and of the Council of 13 April 2016 on the introduction of emergency autonomous trade measures for the Republic of Tunisia, OJ 2016 L 102/1. 123 These include a mid-term assessment, which gives the Commission the competence to adopt an implementing act in order to introduce corrective measures if it turns out that they harm EU olive oil producers and a ‘tracking clause’ obligation which has to ensure that all olive oil under the quota is obtained entirely in, and transported directly from, Tunisia. On this issue, see Guillaume Van der Loo, ‘Mapping out the Scope and Contents of the DCFTA with Tunisia and Morocco’ (2016) Euromesco Paper 28. 124 European Commission, Proposal for a Regulation on the introduction of temporary autonomous trade measures for Ukraine supplementing the trade concessions available under the Association Agreement COM (2016) 0631 final. 125 European Parliament legislative resolution of 4 July 2017 on the proposal for a regulation of the European Parliament and of the Council on the introduction of temporary autonomous trade measures for Ukraine supplementing the trade concessions available under the Association Agreement (P8_TA(2017)0285). The ATMs were approved by the Council on 17 July 2017: Council, ‘Ukraine: Council adopts temporary trade preferences’ (Press release, 17 July 2017). 126 This procedure allows the WTO Ministerial Conference ‘in exceptional circumstances … to waive an obligation imposed on a member by this Agreement or any of the Multilateral Trade Agreements, provided that any such decision shall be taken by three-fourths of the Members’. 127 European Council Conclusions, 16 September 2010, Declaration on Pakistan.

252 Research handbook on the EU’s common foreign and security policy Council and EP reduced the scope of the Commission’s proposal (for example fearing the impact of the proposal on the textiles sector), ATMs were adopted in 2012.128 However, when the EU requested a waiver, pursuant to Article IX WTO, Pakistan’s commercial and geopolitical rivals, including India, blocked this process.129 The waiver was eventually approved in October 2012, after the EU revised its request for a waiver and reduced the trade concessions (for example by increasing the use of tariff rate quotas instead of full liberalization).130 The EU’s ATMs for Pakistan demonstrated that obtaining the required WTO waiver support is not always guaranteed.131 This may explain why the EU did not ask for a waiver for several recent ATMs. For example, the EU did not request a WTO waiver for its ATMs for Ukraine and Tunisia. Concerning the 2014 ATMs for Ukraine, the Commission argued that this was ‘an advance application of a GATT Article XXIV compatible FTA for a very limited time’ and that therefore no waiver was required.132 The EU did not ask for a waiver for its ATM for Tunisia either, most likely because it considers that this too is covered by Article XXIV GATT through the EU-Tunisia FTA, which is included in their Association Agreement.133

6. CONCLUSION Notwithstanding the underlying politicization of EU trade since the beginning of the EU integration process, the recent introduction of a constitutional obligation of mainstreaming and standardization of a joint set of EU external relations principles and values strengthens the nexus between the aims of the CCP and the CFSP. The Lisbon Treaty promotes foreign policy objectives as trade tools or trade as a tool to achieve 128

Regulation (EU) No 1029/2012 of the European Parliament and of the Council of 25 October 2012 introducing emergency autonomous trade preferences for Pakistan, OJ 2012 L 316. On this issue, see Sieglinde Gstöhl, ‘No Strings Attached? The EU’s Emergency Trade Preferences for Pakistan’ in Inge Govaere and Sara Poli (eds), EU Management of Global Emergencies: Legal Framework for Combating Threats and Crises (Brill Nijhoff 2014). 129 Peter Van Elsuwege and Jan Orbie, ‘The EU’s Humanitarian Aid Policy After Lisbon’ in Govaere and Poli (eds), ibid. 130 WTO, ‘European Union Preferences for Pakistan’, Waiver Decision of 14 February 2012, WT/L/851. It has to be noted that the EU did not request a WTO waiver for its ATMs for Ukraine and Tunisia. 131 Although Art. IX:3 WTO requires the approval of three-fourths of the Members, decisions on such matters are generally taken by consensus. On these issues, see Isabel Feichtner, The Law and Politics of WTO Waivers: Stability and Flexibility in Public International Law (CUP 2012). 132 Response of the Commission’s representative to questions during the meeting of the European Parliament ITNA Committee, 19 March 2014. On this point see Van der Loo (n 120) 236. 133 However, the EU asked for an extension of its WTO waiver for the ATM for the Western Balkan countries (Council Decision (EU) 2016/1039 of 16 June 2016 establishing the position to be taken on behalf of the European Union within the General Council of the World Trade Organization on the European Union request for an extension of the WTO waiver relating to the autonomous preferential regime for the Western Balkans).

The nexus between the CCP and the CFSP 253 foreign policy aims. This constitutional obligation is also reinforced by the extended role of the EP, which champions the politicization of EU trade policy throughout the process from the negotiation of legislation or international agreements to the implementation of these instruments. However, the EU’s commitment to international trade and WTO rules limits the EU’s discretion to consider other values when this could either lead to a discriminatory treatment of and between third countries or could not be justified under the limited scope under WTO law to protect other societal values.134 The dichotomy between trade-restrictive and trade-facilitating measures demonstrated that the international law framework imposes more restrictions on the former than the latter. Trade-restrictive measures can only be implemented if based on a sound international law mandate and on values and international commitments such as the protection of peace and security (e.g. dual-use goods or implementation of UN sanctions). Societal values such as sustainable development and protection of human rights are more difficult to weave into trade-restrictive measures. The more the EU works with a broader brush and includes CFSP aims in non-economic objectives to be achieved in trade relations, the more difficult it will be to act in conformity with international (trade) rules and to have a direct impact with its action on third countries. Trade facilitation might fare better but it was demonstrated that also the unilateral granting of trade preferences through the GSP+ scheme for foreign policy reasons is constrained by WTO law and the EU’s own eligibility criteria. This may explain why the EU relies increasingly on ATMs if it wants to offer a third country additional market access for political reasons (e.g. emergency response measures or geopolitical considerations). Nevertheless, such ATMs have to be approved as well by the other WTO members, and need to overcome internal opposition.

134 See further Peter Van den Bossche and Werner Zdouc, The Law and Policy of the World Trade Organization (CUP 2017), p. 592.

12. EU development cooperation and the CFSP: mutual encroachment? Morten Broberg

1. OBJECTIVES AND STRUCTURE OF THIS CHAPTER In February 2017 the Munich Security Conference brought together several hundreds of senior decision-makers from around the world. When speaking at this conference, the German Chancellor, Dr Angela Merkel, stated that ‘we need to do more to join up military capabilities. … We need leadership within the European Union to allow us to design a joined up approach that can include development policy and good governance, not only military capabilities.’1 In this way, Chancellor Merkel made it clear that foreign relations, security and development cooperation go hand in hand. This may not be particularly surprising since development cooperation, at the level of nation states, is generally considered part of foreign policy. However, the Treaty basis of the European Union draws an important distinction between, on the one hand, the Common Foreign and Security Policy (CFSP), and, on the other hand, development cooperation policy. This chapter sets out to present important aspects of the Union’s development cooperation policy and to examine the nexus between this policy and the CFSP.2 My focus will be on the provision of development aid,3 approaching the CFSP from the outside, rather than from within. I first present the contemporary EU development cooperation policy (Section 2).4 There is an intimate relationship between development cooperation and foreign and security policy but in an EU context these policies are placed within very different legal and institutional schemes. It is important, therefore, to clarify their outer limits, and, in particular, whether, and if so how, they may ‘encroach’ upon each other. I therefore examine the boundaries between these two policies (Section 3). Next, I turn to consider the institutional issues inherent in the CFSP–development cooperation nexus (Section 4). Finally, I sum up the main findings (Section 5). 1

German Chancellor, Angela Merkel, in her speech on 18 February 2017 at the 53rd Munich Security Conference, available at accessed 25 June 2017. 2 For an in-depth examination of the security–development nexus in European law, see Hans Merket, The EU and the Security-Development Nexus: Bridging the Legal Divide (Brill Nijhoff 2016). 3 The important question regarding the CFSP and EU external trade is dealt with in Chapter 11 in this volume, while the question of the CFSP and humanitarian aid is dealt with in Chapter 13. 4 For a presentation of the EU development cooperation policy pre Lisbon, see Morten Broberg, ‘What Is the Direction for the EU’s Development Cooperation after Lisbon?’ (2011) 16(4) European Foreign Affairs Review 539.

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EU development cooperation and the CFSP 255

2. EU DEVELOPMENT COOPERATION POLICY AFTER THE LISBON TREATY 2.1 Overview With the entry into force of the Treaty of Lisbon on 1 December 2009 the previous three-pillar system was replaced with a unitary one, based on two treaties: the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). A central objective of the new Treaty system was to improve the Union’s position on the international stage. The changes brought about by the Lisbon Treaty affected the European Union’s development cooperation policy both directly and indirectly. Below, I will first consider the consequences of the Lisbon Treaty’s reorganization of the objectives of the European Union’s development cooperation policy (Section 2.2) whereupon I turn to consider the likely consequences of the Lisbon Treaty’s provisions that require the Union to ensure policy coherence in its external relations and to promote its own values in the wider world (Section 2.3). 2.2 Reorganization of the Objectives of EU Development Cooperation Policy The Lisbon Treaty reshuffled and elaborated on the objectives of the European Union in several respects, including with regard to development cooperation policy. When considering the EU development cooperation policy in a CFSP context, this reshuffling entails two important changes: first, with the second paragraph of Article 208(1), the Union’s development cooperation objectives have been streamlined so that there now is a much stronger focus on the primary objective, that is the fight against poverty in developing countries;5 second, the remaining, and hitherto broadly defined objectives of the Union’s development cooperation policy (such as the promotion of democracy and the rule of law) have been reorganized and now form part of the general ‘framework of the principles and objectives of the Union’s external action’ set out in Article 208(1) TFEU. As such, they must be respected in all the Union’s external activities pursuant to Article 205 TFEU and Article 21(3) TEU. In other words, these objectives apply to both the development cooperation policy and to the CFSP.6 Article 21(1) and (2) TEU list these principles and objectives thus: 1.

The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.

5 See similarly Opinion of Advocate General Bot in Case C-658/11 Parliament v Council (Mauritius) EU:C:2014:41, para 126. 6 Article 21(3) TEU explicitly refers to both Title V TEU (where we find the CFSP) and to Part Five TFEU (where we find the EU’s development cooperation policy). See also Opinion of Advocate General Bot, ibid.

256 Research handbook on the EU’s common foreign and security policy The Union shall seek to develop relations and build partnerships with third countries, and international, regional or global organisations which share the principles referred to in the first subparagraph. It shall promote multilateral solutions to common problems, in particular in the framework of the United Nations. 2.

The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to: (a) safeguard its values, fundamental interests, security, independence and integrity; (b) consolidate and support democracy, the rule of law, human rights and the principles of international law; (c) preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders; (d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty; (e) encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade; … .7

First, elevating some objectives, which pre Lisbon could be found in the chapter on the Union’s development cooperation policy (e.g. to support democracy and the rule of law), to horizontal objectives, which must guide all the European Union’s actions in the field of external relations, suggests that these objectives have been strengthened from a constitutional point of view.8 Indeed, references to these objectives and principles have made their way into hard-law CFSP measures9 as well as into a number of TFEU soft-law measures in various fields of the Union’s external relations.10 Moreover, today the Court of Justice uses these objectives and principles as legitimate teleological guidelines in its interpretation of legal acts in all external relations policy areas, including e.g. the Common Commercial Policy.11 We are thus witnessing a generalization of objectives and principles which previously belonged to specific policy areas, meaning that they are becoming more firmly embedded in the Union legal order. Second, the streamlining of development cooperation objectives so that the reduction/eradication of poverty has been made a ‘primary objective’ of European Union development cooperation policy suggests that, within the field of development cooperation, this objective should be accorded particular weight in cases of conflict 7

Emphasis added. With particular regard to the EU’s CFSP it may be noted that prior to the Lisbon Treaty, Article 11 EU laid down very similar objectives for the CFSP as those that apply post Lisbon to the European Union’s policies and actions in all fields of international relations. 9 See, for example, Council Decision (CFSP) 2016/947 of 14 June 2016 amending Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo [2016] OJ L157/26. 10 See, for example, ‘New European Consensus on Development: Our world, our dignity, our future’, 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 [2017] OJ C210/1, available at accessed 24 July 2017. 11 See, for example, Opinion 2/15 (Free Trade Agreement between the European Union and the Republic of Singapore (EUSFTA)) EU:C:2017:376, paras 139–147. 8

EU development cooperation and the CFSP 257 with other objectives.12 The requirement that poverty reduction/eradication should be a ‘primary objective’ therefore suggests that, among the traditional economic and social objectives which have always formed a part of the Union’s development cooperation policy, there should be a stronger and more specific focus on poverty reduction/ eradication in the Union’s policy formulation.13 If we accept this line of reasoning, this would seem to mean that the European Union’s specific development initiatives must always (also) pursue a goal of poverty reduction. For example, a development cooperation initiative aimed at improving environmental protection in a developing country should also clearly have a poverty-reducing objective to fully comply with Article 208 TFEU. Thus, individual development cooperation measures, which do not have as their primary objective to reduce/eradicate poverty or which do not contribute to this objective in the overall context of the Union’s development cooperation policy, no longer fall within the Union’s development cooperation competences. Apart from this preference for poverty reduction/eradication, the streamlining did not entail new hard legal obligations as regards the Union’s exercise of competence vis-à-vis the situation pre Lisbon. As regards the Union’s competence to enter into international agreements, Article 209 TFEU provides that ‘[t]he Union may conclude with third countries and competent international organisations any agreement helping to achieve the objectives referred to in Article 21 of the Treaty on European Union and in Article 208 of this Treaty’. Thus, Article 209 TFEU explicitly foresees international agreements that have as their objectives some of the horizontal objectives mentioned in Article 21 TEU. In this light, the reorganization of the Union’s development cooperation objectives did not entail noticeable new restrictions on the Union’s treaty-making competence in this area.14 2.3 Policy Coherence for Development and Value Promotion as Restraints on the Union’s Exercise of Its Development Cooperation Competence? When exercising its development cooperation policy competences, the Union must comply with EU law, including the general principles. This is not new. But in the post-Lisbon field of development cooperation, two principles appear to require particular attention. The first is specifically concerned with development cooperation, whereas the second applies to all fields of external action. First, the Maastricht Treaty introduced a requirement for so-called policy coherence for development (PCD).15 The Lisbon Treaty has maintained this requirement in Article 208(1) TFEU, which provides that ‘[t]he Union shall take account of the objectives of 12 See in this respect also Henrike Klavert, ‘EU External Action Post-Lisbon: What Place Is There for Development Policy?’ (2011) 4 The Bulletin of Fridays of the Commission 18, 18–23

Note that eradication of poverty appears both in Article 21(2)(d) TEU and in Article 208 TFEU. In contrast to the other objectives, eradication of poverty has thus been duplicated. 13 See in support of this para 4 of the ‘New European Consensus on Development’ (n 10). 14 The Court’s judgment in the ‘Philippines Partnership and Cooperation Framework Agreement’ case, Case C-377/12 EU:C:2014:1903, seems to confirm this. The judgment is analysed in Section 3.4 below. 15 cf. Article 178 EC.

258 Research handbook on the EU’s common foreign and security policy development cooperation in the policies that it implements which are likely to affect developing countries’. Article 208(1) TFEU obliges the Union to pursue coherence between its objectives in the field of development policy and its other policies. However, no substantive legal effects flow from this duty of coherence between development cooperation policy and other policies being laid down in primary law. Post Lisbon, the Treaties also include other provisions which more generally require the Union to ensure policy coherence in its external relations, notably in Articles 3(5) and 21(3) TEU as well as Article 7 TFEU. These provisions are broadly concerned with the coherence of the Union’s policies, in particular in the field of external relations.16 The other issue worth mentioning is the enhanced requirement of value promotion. What impact does the reshuffling of the EU development cooperation policy objectives have on the Union’s competence to promote its own values, such as democracy and human rights, as part of that policy? Pre-Lisbon the European Union also actively pursued the promotion of democracy and respect for human rights as part of its development cooperation policy and did so with the approval of the Court of Justice.17 The Lisbon Treaty, however, has taken this promotion one step further. According to Article 3(5) TEU, in its relations with the wider world, the European 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.18

This obligation to actively advance European values in the wider world is also reflected in Article 21(1) TEU, which provides that ‘[t]he Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world …’.19 While it might be going too far to suggest that Article 3(5) TEU entails that the inclusion of a human rights clause in international agreements (or, at least, in international development cooperation agreements) constitutes a condition of legality of

16

On the general obligation of the European Union to attain coherence in its external relations post Lisbon, see Christophe Hillion, Cohérence et action extérieure de l’Union européenne (EUI LAW, Working Paper No. 14, 2012), available at accessed 29 July 2017. 17 Morten Broberg, ‘From Colonial Power to Human Rights Promoter: On the Legal Regulation of the European Union’s Relations with the Developing Countries’ (2013) 26 Cambridge Review of International Affairs 675, 682–683. 18 Emphasis added. 19 Emphasis added. See also Article 21(2)(a)–(c) TEU as well as Article 205 TFEU. The latter provides that ‘[t]he 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 [Articles 21 and 22] of the Treaty on European Union’.

EU development cooperation and the CFSP 259 the latter,20 the Union may have an obligation to ensure a minimum degree of human rights compliance, as well as effective remedies in the event of breach, in its cooperation with developing countries. So far, we only find a limited number of explicit references to the obligation in Article 3(5) TEU to promote European values; first of all in European Parliament resolutions.21 This arguably indicates that, until now, the provision has only been attributed rather limited legal weight. By contrast, it is easy to find examples where the European Union commits to generally promoting its values in the wider world. Thus, for instance, in the ‘New European Consensus on Development’ it is clearly set out that the European principles and values shall guide both the European Union and the Member States in their development action.22 Similarly, the European Council explicitly laid down in the so-called ‘Stockholm Programme’ that ‘[t]he Union should continue to promote European and international standards and the ratification of

20 An argument to this effect was put forward by Advocate General La Pergola in para 29 of his Opinion in Case C-268/94 Portugal v Council (India Agreement) EU:C:1996:207. In the subsequent ruling in the same case the Court of Justice refrained from taking a position in this respect, however (cf. Case C-268/94 Portugal v Council (India Agreement) EU:C:1996:461). 21 See, for example, European Parliament Resolution of 12 March 2015 on the EU’s priorities for the UN Human Rights Council in 2015 (2015/2572(RSP) [2016] OJ C316/178; European Parliament Resolution, on the Discrimination against Girls in Pakistan, in Particular the Case of Malala Yousafzai [2014] OJ CE72 43; European Parliament Resolution, on Human Rights, Sexual Orientation and Gender Identity at the United Nations [2013] OJ CE56/100; European Parliament Resolution, on International Trade Policy in the Context of Climate Change Imperatives [2012] OJ CE99/94; European Parliament Resolution, on Human Rights and Social and Environmental Standards in International Trade Agreements [2012] OJ CE99/31; and European Parliament Resolution, on EU Policies in Favour of Human Rights Defenders [2011] OJ CE236/69; as well as the European Parliament’s resolution in which it laid down its priorities for the annual UN Human Rights Councils. In the latter resolution the European Parliament explicitly referred to Article 3(5) TEU while observing that ‘respect for, and the promotion and safeguarding of, the universality of human rights is part of the European Union’s ethical and legal acquis and one of the cornerstones of European unity and integrity’, see, for instance, European Parliament Resolution, on the 13th Session of the United Nations Human Rights Council [2010] OJ C348/6. See likewise European Parliament Resolution, on Democracy Building in the EU’s External Relations [2010] OJ CE265/3, in particular para F; European Parliament Resolution, on Restrictive Measures Directed Against Certain Persons and Entities Associated with Usama bin Laden, the Al-Qaida Network and the Taliban, in Respect of Zimbabwe and in View of the Situation in Somalia [2010] OJ C286/5, para A; and European Parliament Resolution, on Religious Freedom in Pakistan [2011] OJ CE161/147, para A. See also Proposal for a Regulation of the European Parliament and of the Council setting up a Union regime for the control of exports, transfer, brokering, technical assistance and transit of dual-use items (recast), COM (2016) 616 final as well as Joined Cases C-584/10 P, C-593/10 P, and C-595/10 P Commission and Others v Kadi EU:C:2013:518, para 103; Case T-512/12 Front Polisario v Council EU:T:2015:953, paras 159–167 (the latter ruling was subsequently overturned by the Court of Justice on the basis that the plaintiff did not have locus standi, cf. Case C-104/16 P Council v Polisario EU:C:2016:973), and Opinion 2/15 (Free Trade Agreement between the European Union and the Republic of Singapore) EU:C:2017:376, para 146. 22 ‘New European Consensus on Development’ (n 10). See particularly section 1.3.

260 Research handbook on the EU’s common foreign and security policy international conventions, in particular those developed under the auspices of the UN and the Council of Europe’.23 Article 3(5) TEU does not impose specific obligations as to how the European Union must further its own values,24 and nothing indicates that Article 3(5) TEU should require a more intensive effort in this regard than the Union’s efforts pre Lisbon.25 For example, Article 3(5) TEU does not entail that a human rights clause in a cooperation agreement with a developing country is a condition of internal legality under EU law. Rather, Article 3(5) TEU appears to be important mainly for the Union’s international identity, including for its external relations discourses.

3. DELIMITATION BETWEEN EU DEVELOPMENT COOPERATION POLICY AND THE CFSP 3.1 Overview As will be very clear from the above, the European Union’s Treaties draw an important distinction between, on the one hand, the CFSP, and, on the other hand, the Union’s development cooperation policy. However, as is reflected in this chapter’s introductory quote of Chancellor Merkel, there is a clear nexus between development and, in particular, security. It is therefore only natural that in many situations the European Union’s development cooperation policy and its CFSP overlap, as was clearly illustrated in the ECOWAS case.26 In this section I will consider the delimitation between the two policies. Or, rather, first I shall show that the Union’s development cooperation policy is sometimes used towards furthering European objectives regarding security and migration, which arguably fall under the CFSP (Section 3.2). Next, I suggest that the CFSP is also used towards objectives that, strictly speaking, should be part of the

23

The Stockholm Programme: An Open and Secure Europe Serving and Protecting Citizens [2010] OJ C115/1, at para 7.6. For another example, see Commission Staff Working Document accompanying the Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee – Tax and Development Cooperating with Developing Countries on Promoting Good Governance in Tax Matters, SEC (2010) 426 final. 24 This promotion must respect the other objectives and principles of the Union’s external actions, however. 25 On the consequences flowing from Article 3(5) TEU, see also Broberg (n 4) 548–554, and Broberg (n 17) 682–683. 26 Case C-91/05 Commission v Council (ECOWAS) EU:C:2008:288. The ECOWAS case is sometimes also referred to as the Small Arms and Light Weapons case, the Small Arms case or merely the SALW case. For more examples, see also Hans Merket, The EU and the SecurityDevelopment Nexus: Bridging the Legal Divide (Brill Nijhoff 2016), particularly chapter 3, and Karen Del Biondo, Stefan Oltsch and Jan Orbie, ‘Security and Development in EU External Relations: Converging, but in which Direction?’ in Sven Biscop and Richard Whitman (eds), The Routledge Handbook of European Security (Routledge 2013) 134–135.

EU development cooperation and the CFSP 261 development cooperation policy (Section 3.3). Finally, I turn to consider the choice between development cooperation and the CFSP as legal basis post Lisbon (Section 3.4). 3.2 EU Development Cooperation Policy Used to Achieve Objectives Arguably Falling Under the CFSP In 2014 the European Parliament and the Council adopted Regulation 230/2014 establishing an Instrument contributing to Stability and Peace.27 This instrument empowers the Union to undertake development cooperation measures, as well as financial, economic and technical cooperation measures in third countries to address issues that include ‘[p]reserving peace, preventing conflicts, strengthening international security and assisting populations, countries and regions confronting natural or manmade disasters’.28 In other words, the development cooperation instrument contributing to stability and peace is also used towards objectives that will normally be considered to fall within the CFSP. However, the European Union’s use of development cooperation to achieve objectives that, at least in principle, fall under the CFSP is not merely limited to a single financing instrument. Thus, in 2005 the Council and the representatives of the governments of the Member States, the European Parliament and the Commission jointly adopted the so-called European Consensus for Development29 (in 2017 a New European Consensus30 was adopted to replace the (old) European Consensus). This was the first joint statement setting out common principles, values and objectives of development cooperation policy for the European Union and its Member States. ‘The Consensus’, as it is widely known, was made up of two parts. In the first part the European Union and the Member States set out their development policies in accordance with the principle of complementarity. The second part set out the European Union’s role, the value that the (complementary) EU contribution would add to the one provided by the Member States,31 and how the objectives, principles, values, PCD and commitments defined in the first part of the (old) Consensus were to be made

27 [2014] OJ L77/1. This Instrument contributing to Stability and Peace (IcSP) took over from the 2006 Instrument for Stability (IfS) that was laid down in Regulation 1717/2006 establishing an Instrument for Stability and which expired on 31 December 2013. On the latter, see Stefan Gänzle, Coping with the ‘Security-Development-Nexus’: The European Community’s Instrument for Stability – Rationale and Potential (German Development Institute 2009). 28 Recital 2 of the Regulation. 29 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’ [2006] OJ C46/1. 30 ‘New European Consensus on Development’ (n 10). 31 Pre-Lisbon the European Union’s development policy was complementary to that of the Member States. Post Lisbon the European Union’s and the Member States’ development policies are mutually complementary.

262 Research handbook on the EU’s common foreign and security policy operational at Union level. The primary focus clearly was upon more traditional development objectives.32 As observed in Section 2, in June 2017 the same parties jointly adopted a New European Consensus on Development, thereby replacing the old Consensus.33 The New Consensus makes it clear that eradicating poverty continues to be a primary objective of the European Union’s development cooperation policy. However, in addition to more traditional development objectives, the European Union will now also expressly use its development cooperation activities to further its own interests in areas that normally fall under the CFSP such as security (as well as migration which is not normally viewed as part of development cooperation policy).34 There has been some criticism levelled against the choice, articulated in the New Consensus, to rely upon development cooperation policy in order to achieve objectives that would normally be seen as falling under the CFSP. As one observer put it: ‘The Consensus is unrealistic: development cooperation cannot pretend to lead to sustainable development if it is, at the same time, used to serve Europe’s economic, commercial, migration and security interests. The overall direction may even ultimately hamper the achievement of the positive elements in the Consensus.’35 Thus, irrespective of the fact that the Treaty basis of the European 32 This is not to say that during the old Consensus the European Union did not pursue objectives that went beyond traditional development objectives. For example, in 2011 the European Commission adopted a communication which, inter alia, provided that ‘the EU should assist developing countries in strengthening their policies, capacities and activities in the area of migration and mobility’, cf. Increasing the impact of EU Development Policy: an Agenda for Change, COM (2011) 637 final 12. See also Partnership Agreement between the Members of the African, Caribbean and Pacific Group of States of the One Part, and the European Community and its Member States of the Other Part (the Cotonou Agreement)’s title on development strategies, which in Article 19(1) lays down that ‘[t]he central objective of ACP–EC cooperation is poverty reduction and ultimately its eradication; sustainable development; and progressive integration of the ACP countries into the world economy …’ and in (revised) Article 28(2) provides that ‘ACP–EU cooperation shall aim to: (a) promote peace and stability, as well as conflict prevention and resolution’ (see also Article 29(1)). 33 ‘New European Consensus’ (n 10). 34 See also EEAS press release of 30 August 2017, ‘EU migration policy delivering results thanks to partnership approach and investment in sustainable development’, available at accessed 13 October 2017. The New Consensus in para 5 also expressly states that the Global Strategy for the EU’s Foreign and Security Policy provides an overall vision for the European Union’s engagement in the world – thereby tying development cooperation and CFSP together. 35 Tanya Cox, Member of CONCORD’s Steering Group on Sustainable Development, cf. New European Consensus on Development: Double Standards for Sustainable Development, Concord – European NGO Confederation for relief and development, available at accessed 24 July 2017. OXFAM International, the development NGO, put it in even clearer words: ‘New EU development framework: self-interest trumps solidarity’ accessed 25 July 2017. In contrast, Federica Mogherini, the European Union’s High Representative, put it in the following somewhat more positive terms: ‘The European Consensus on Development is a new way of looking at development that adjusts to the changes in the international agenda in recent

EU development cooperation and the CFSP 263 Union’s development cooperation policy makes it clear that the primary focus must be upon poverty reduction, it follows from the New Consensus that the European Union’s development aid may also be used to further other objectives. Such a policy choice is not new, however.36 Indeed, arguably, this is reflected in the top ten recipients of this aid and the objectives underlying aid to these recipients, shown in Table 12.1. Table 12.1 Bilateral Official Development Assistance (ODA) to top ten recipients, 2014–15 average, gross disbursements, EU institutions Recipient Turkey Morocco Serbia Tunisia West Bank and Gaza Strip Ukraine Bosnia and Herzegovina Afghanistan Egypt Niger

USD (millions) 2,839 475 471 466 446 365 303 276 270 244

Note: It is worth pointing out that if a state has a fixed date for accession to the European Union, funding no longer qualifies as ODA. Prior to this time, funding that fulfils the ODA criteria does qualify. Source: accessed 25 July 2017.

When considering that, as a matter of principle, the primary long-term objective behind the European development cooperation policy37 is poverty eradication, it is surprising that only two of the top ten recipients (Afghanistan and Niger) also figure among the 47 nations listed on the United Nations’ ‘List of Least Developed Countries (as of June years. So, we move from a traditional approach of donor-recipient to a partnership approach in which we do things with our partners to cover all different set of fields …’ (emphasis added), ‘EU Development Ministers expected to approve Consensus for Development’ available at accessed 24 July 2017. 36 See, for example, Case C-403/05 European Parliament v Commission (Philippines Border Management Project) EU:C:2007:624, paras 56–57 as well as the Opinion of Advocate General Kokott in the same case (EU:C:2007:290), paras 72–73. It may also be noted that the European Parliament has earlier shown an unwillingness to use development cooperation funds in areas such as migration: Cécile Barbière, ‘Parliament refuses to allocate more EU aid money to migration crisis’ (EurActiv, 29 April 2016) available at accessed 30 July 2017. 37 cf. Article 208 TFEU and above Section 2.2.

264 Research handbook on the EU’s common foreign and security policy 2017)’.38 It is equally noteworthy that the number-one recipient, Turkey, is not only an upper-middle-income country, but also receives almost six times as much aid as does the second-largest recipient of EU aid (Morocco, a lower-middle-income country). If we look at the geographic location of the top ten recipients, eight are to be found in the immediate neighbourhood (Eastern Europe, Balkans, Mediterranean). In particular for those recipients bordering the Mediterranean, ‘migration control’ is a prominent objective underlying the cooperation with the European Union as reflected, inter alia, in the November 2015 Valletta summit between European and African heads of state.39 Another prominent objective underlying the European Union’s cooperation with the neighbouring countries is ‘stability’ – which to a considerable extent may be translated into ‘security’. With regards to the two top ten recipients that are categorized as least developed countries and which we do not find in the immediate neighbourhood, namely Afghanistan and Niger, we only have to look at the European Union’s key development cooperation policy papers vis-à-vis these two countries to see that, to a considerable extent, the Union’s development cooperation aid to Afghanistan and Niger addresses challenges in the fields of migration and security. For example, with regard to Afghanistan, the July 2017 Commission and High Representative communication ‘Elements for an EU Strategy on Afghanistan’40 provides as follows in the opening paragraph: ‘Since 2001, the European Union (EU) and its Member States have partnered with Afghanistan and the wider international community in pursuit of a common strategic interest in combating extremism and terrorism while simultaneously working towards peace and development in the country.’41 And when it comes to the European Union’s future objectives vis-à-vis Afghanistan, the fourth such objective set

38

List of Least Developed Countries (as of June 2017), accessible at accessed 25 July 2017. 39 In November 2015 European and African Heads of State and Government met in the Maltese capital Valletta in an effort to strengthen cooperation and address the challenges of migration. The Valletta summit constitutes a key event in this field. See further accessed 26 July 2017. 40 JOIN (2017) 31 final. 41 Emphasis added. See similarly Cooperation Agreement on Partnership and Development between the European Union and the Islamic Republic of Afghanistan (adopted by Council Decision (EU) 2017/434 of 13 February 2017 on the signing, on behalf of the Union, and provisional application of the Cooperation Agreement on Partnership and Development between the European Union and its Member States, of the one part, and the Islamic Republic of Afghanistan, of the other part [2017] OJ L67/1) where Article 1(2)(a) lists the first objective as ‘supporting peace and security in Afghanistan and the region’ whereas only the fourth objective listed in Article 1(2)(d) mentions poverty eradication.

EU development cooperation and the CFSP 265 out in the communication is described as ‘[a]ddressing challenges related to migration’.42 Similarly, within the framework of the ‘EU Strategy for Security and Development in the Sahel’ we find Niger as one of the priority countries.43 This strategy not only points to ‘the inter-dependence of security and development’, but also more specifically points out that the strategy will help the European Union attain objectives within the fields of both security44 and migration objectives.45 The above examination shows that whereas the Lisbon Treaty made poverty eradication a primary objective of European development cooperation policy, in practice other objectives have been attributed very considerable weight; this is notably so with regard to security and migration. To some extent this may be explained by the Lisbon Treaty’s revamping of the European Union’s external relations framework; especially Article 21 TEU and the creation of the position as High Representative and the European External Action Service (EEAS). In other words, in particular in these fields, the EU development cooperation policy encroaches upon the CFSP. The above examination also shows that the use of development cooperation policy for the pursuit of objectives that primarily fall under the CFSP has been reinforced by the New Consensus. At the time of writing the New Consensus is so new that it is too early to assess whether this will be reflected in the future development cooperation policy measures. 3.3 The CFSP Used for Achieving Development Cooperation Objectives In 2013 the European Parliament and the Council adopted the so-called Comprehensive Approach, which sets out to systematically establish guiding principles for EU external action across all areas, especially in relation to conflict prevention and crisis resolution.46 According to these guiding principles, in order to help developing countries get back on track towards sustainable long-term development, the Union shall assist them in the fields of early warning and preparedness, conflict prevention, crisis response and management to early recovery, stabilization and peace-building.47 The Comprehensive Approach also makes it clear that the Union itself has ‘a vital interest to prevent, prepare for, respond to, address and help recovery from conflicts, crises and other

42

Page 4 of the Communication. Available at accessed 26 July 2017. 44 Referring to ‘[t]he security threat from terrorist activity by Al-Qaida in the Maghreb (AQIM)’ that is focused on Western targets. 45 Observing: ‘Poverty creates inherent instability that can impact on uncontrolled migratory flows’ at para 13.2. 46 See Joint Communication to the European Parliament and the Council –The EU’s comprehensive approach to external conflicts and crises JOIN (2013) 30 final, and Council conclusions on the EU’s comprehensive approach, Foreign Affairs Council meeting, Brussels, 12 May 2014. See also Clément Boutillier, ‘The Security and Development Nexus’ in Jochen Rehrl (ed.), Handbook on CSDP the Common Security and Defence Policy of the European Union (Federal Ministry of Defence and Sports of the Republic of Austria 2017) 188. 47 Part I, para 3, of the Comprehensive Approach. 43

266 Research handbook on the EU’s common foreign and security policy security threats outside its borders’.48 And when it comes to policies, tools and instruments at the Union’s disposal for responding to these challenges, the Comprehensive Approach points to ‘the diplomatic, security, defence, financial, trade, development cooperation and humanitarian aid fields’.49 In other words, the European Union’s Comprehensive Approach itself directly requires the Union to pursue development objectives under the CFSP. Moreover, the ‘Global Strategy for the European Union’s Foreign and Security Policy’50 lays down, among other things, that as part of the CFSP, the European Union shall ‘invest in the resilience of states and societies to the east stretching into Central Asia, and south down to Central Africa’ and that the European Union ‘will nurture societal resilience also by deepening work on education, culture and youth to foster pluralism, coexistence and respect’.51 Thus, the Global Strategy rather unambiguously also pursues objectives that, at least in principle, fall within the European Union’s development cooperation policy. Indeed, it is not only at the general level that the European Union’s CFSP pursues development cooperation objectives. Above in Section 3.2 we have seen that there is a clear nexus between the European Union’s development cooperation under the TFEU and (in particular) security under the CFSP. Similarly, when we turn to the implementation of the CFSP it will be clear that this policy is used to further objectives that also have a clear development aspect. For example, as part of the European Union’s Strategy for Security and Development in the Sahel,52 within the framework of the Common Security and Defence Policy (CSDP)53 the European Union has established civilian missions in Somalia, Mali, Niger and Libya, which pursue both security and development objectives.54 Indeed, a key theme of the strategy is that security and development in the Sahel cannot be separated, and that helping these countries achieve security is integral to enabling their economies to grow and poverty to be reduced. Thus, whereas the primary objectives of the ‘EUCAP Sahel Mali civilian mission’ are to help the Malian government with the reform of its internal security forces to enable them to provide more security and justice for Malians, the civilian mission simultaneously seeks to further human rights and gender issues as well as capacity-building objectives such as training Malian experts to carry out oversight and auditing of the different 48

Part I, para 4, of the Comprehensive Approach. Part I, para 4, of the Comprehensive Approach. 50 accessed 29 July 2017. 51 Cf. Section 3.2 of the Global Strategy. 52 The strategy is available at accessed 14 October 2017. 53 The common security and defence policy shall be an integral part of the common foreign and security policy, cf. Article 42(1) TEU. 54 See further accessed 29 July 2017. For other examples, see Panos Koutrakos, ‘The Nexus Between the European Union’s Common Security and Defence Policy and Development’ in A Arnull, C Barnard and M Dougan (eds), A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood (Hart Publishing 2011) 595–596. On the tensions between the CSDP and the European Union’s development cooperation policy, see Chapter 5 in this volume (text accompanying footnote 77). 49

EU development cooperation and the CFSP 267 government departments, and to manage human resources and logistics support.55 Moreover, there is a significant development component (first of all in the form of a humanitarian component) in the European Union’s military peacekeeping missions in, for example, Chad and the Central African Republic.56 As the above examination clearly shows, within the field of the CFSP the European Union (also) pursues objectives that, in principle, must be categorized as falling within its development cooperation policy. This not only applies at the level of general guiding principles as clearly reflected in the Comprehensive Approach and the Global Strategy, but also applies at the implementation level as exemplified by the European Union’s Strategy for Security and Development in the Sahel. 3.4 Choice of Legal Basis Post Lisbon – Development Cooperation Versus CFSP Even though the pillar structure that was introduced in 1993 with the Maastricht Treaty was abandoned with the entry into force of the Lisbon Treaty in 2009, the CFSP continues to be governed by special provisions that are now found in Title V, Chapter 2 of the TEU. This means that also today the CFSP and the Union’s development cooperation policy are governed by different legal regimes. For a pre-Lisbon legal measure about both development cooperation and the CFSP, it would have been necessary to determine whether it fell under what pre Lisbon was referred to as the first (development cooperation) or the second (CFSP) pillar given that the then applicable Article 47 EU asserted primacy for development cooperation over CFSP.57 With the Lisbon Treaty, Article 47 EU was replaced by Article 40 TEU, which provides both that the implementation of the CFSP shall not affect the operation of the TFEU and that the implementation of the policies set out in the TFEU, including that of development cooperation, shall not affect the operation of the CFSP so that neither of the two can assert primacy over the other.58 This means that, if a legal measure simultaneously 55

See further factsheet, ‘The EUCAP Sahel Mali civilian mission’, updated June 2016, available at accessed 14 October 2017. 56 The European Union’s military peacekeeping mission in Chad and the Central African Republic was mandated by United Nations Security Council resolution 1778, para 6. In para 6(a)(ii) this resolution lays down that the European Union’s deployment of an operation, inter alia, shall seek ‘[t]o facilitate the delivery of humanitarian aid and the free movement of humanitarian personnel by helping to improve security in the area of operations’. The UN Security Council resolution forms the legal basis for the European Council’s decision to deploy the EU operation. See also EU Military Operation in Eastern Chad and North Eastern Central African Republic (EUFOR Tchad/RCA) available at accessed 29 July 2017. 57 See in particular Case C-91/05 Commission v Council (ECOWAS) (n 26). 58 Note, however, Christophe Hillion, ‘A Powerless Court? The European Court of Justice and the Common Foreign and Security Policy’ in Marise Cremona and Anna Thies (eds), The European Court of Justice and External Relations Law: Constitutional Challenges (Hart Publishing 2014): ‘[this] raises the question of what in the end remains of the CFSP in substantive terms; which in turn questions the actual significance of Article 40(2) TEU on the protection of the CFSP integrity that the Court is called upon to guarantee’.

268 Research handbook on the EU’s common foreign and security policy pursues CFSP and development cooperation objectives, or if it has components from both fields and one of the two aims or components is identifiable as the main one whereas the other is merely incidental, the Union legislator must found the measure on the legal basis required by the main or predominant aim or component, i.e. the measure’s centre of gravity.59 In this situation, there will be one legal measure having one legal basis, but pursuing more objectives.60 In the India Agreement case61 the Court of Justice held that the European Union’s development cooperation policy is multifaceted, encompassing a broad range of areas. This, in itself, may provide a strong argument in favour of finding development cooperation (and not the CFSP) to constitute the centre of gravity. Moreover, following the entry into force of the Lisbon Treaty, in the Philippines PCA ruling62 the Court made it clear that the Lisbon Treaty’s streamlining and reorganization of the European Union’s development cooperation policy competences do not restrict the Union’s competences in this area. On the contrary, the latter judgment not only confirmed, but even further extended the Court’s earlier broad construction of the Union’s development cooperation policy competence laid down originally in the just-mentioned India Agreement ruling. This broad construction has two dimensions. The Court confirmed that the development cooperation policy was multifaceted and that, therefore, its power-conferring provisions could be used to adopt multifaceted instruments covering a broad range of policy areas.63 It also accepted that development cooperation competence could be used for relatively deep forms of cooperation. As regards the latter, the Court distinguished between cooperation of a declaratory nature and cooperation ‘in concrete terms’ (regarding the manner in which cooperation in each specific area envisaged is to be implemented). However, on substance the Court accepted that certain provisions in the Philippines Partnership and Cooperation Framework Agreement contained specific legal obligations and clear rules on how to proceed, and thereby transgressed the limits of being mere declaratory statements. The Philippines PCA case, therefore, clearly took the doctrine developed in the India Agreement case a step further. In the specific case, the Court appeared to accept that clear and central legal obligations concerning a matter which has its own treaty-making competence and a specific decision-making procedure that differs from development cooperation (namely readmission) could be assumed on 59 Case C-36/98 Spain v Council EU:C:2001:64, para 59; Opinion 2/00 Cartagena Protocol EU:C:2001:664, para 23; Case C-338/01 Commission v Council EU:C:2004:253, para 55; and Case C-91/05 Commission v Council (ECOWAS) (n 26), para 73. 60 With respect to the application of the centre of gravity test to the CFSP versus development cooperation falling under the TFEU, see Case C-658/11 European Parliament v Council of the European Union (Mauritius) EU:C:2014:2025, paras 43–62 and the comments on this ruling by Thomas Ramopoulos and Jan Wouters, Charting the Legal Landscape of EU External Relations Post-Lisbon (Working Paper No. 156, Leuven Centre for Global Governance Studies 2015) 10. For examples of the European Union institutions having found that the centre of gravity test weighs in favour of the TFEU rather than the CFSP, see Ricardo Passos, ‘The External Powers of the European Parliament’ in Piet Eeckhout and Manuel Lopez-Escudero (eds), The European Union’s External Action in Times of Crisis (Hart Publishing 2016) 124. 61 ‘India Agreement’ case (n 20). 62 ‘Philippines Partnership and Cooperation Framework Agreement’ case (n 14). 63 See also Opinion by Advocate General Sharpston in Opinion 2/15 Singapore Free Trade Agreement EU:C:2016:992, para 496.

EU development cooperation and the CFSP 269 the basis of development cooperation competence, provided that the obligations were not immediately implementable. This was the case even in a situation where particular Union procedures applied with respect to that matter (with regard to readmission special schemes applied to the United Kingdom, Ireland and Denmark). Thus, in order to be able to use the development cooperation policy competence for negotiating the Philippines Partnership and Cooperation Framework Agreement, the Commission had to ensure that the relevant provisions in the Agreement would require subsequent implementation. The Court of Justice’s approach suggests that development cooperation policy competence may be used for deeper and more concrete types of cooperation in other policy fields. This is likely also to apply to the field of the CPSP.64 In other words, when delimiting development cooperation vis-à-vis the CFSP, the ruling in the Philippines PCA case seems to strengthen the former at the expense of the latter.65 The above concerns the situation where it is possible to discern a centre of gravity for the legal measure in question. If, however, the legal measure simultaneously pursues both CFSP and development cooperation objectives or contains components from both fields, and these objectives or components are inseparably linked and neither is incidental to the other, meaning that both TEU and TFEU provisions are applicable, the measure must be founded on both legal bases.66 In this situation we must consider whether, in the specific case, it is possible to have one legal measure founded on the legal basis for both the CFSP and development cooperation. Such recourse to a dual legal basis is only possible, however, where the procedures laid down for each of the applicable legal bases are not mutually incompatible.67 With respect to the CFSP, 64

See in this respect Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) No 230/2014 of the European Parliament and of the Council of 11 March 2014 establishing an instrument contributing to stability and peace COM (2016) 447 final/2, which is based on TFEU Articles 209 (development cooperation) and 212 (cooperation with third countries other than developing countries). This choice of legal basis is briefly explained in section 2 of the proposal. A more thorough explanation is provided in section 1.6 of the accompanying Commission Impact Assessment SWD (2016) 222 final, where the following observation is made: ‘Considering the scope of development cooperation, the financing of capacity building (training and equipment support) in the security sector on the basis of Article 209 TFEU [i.e. development cooperation] is not per se excluded only because of the military nature of the beneficiary. Being based on Article 209 TFEU, the intended measure has to come within the scope of the Union’s development cooperation policy, which is interpreted broadly in line with the Treaties and settled case law.’ 65 For a critical examination of the Court of Justice’s ruling in the Philippines PCA case, see Morten Broberg and Rass Holdgaard, ‘Demarcating the Union’s Development Cooperation Policy after Lisbon: Commission v. Council (Philippines PCFA)’ (2015) 52(2) CML Rev 547. 66 Opinion 2/00, Cartagena Protocol (n 59), para 23; Case C-211/01 Commission v Council EU:C:2003:452, para 40 and Case C-91/05 Commission v Council (ECOWAS) (n 26), para 75. Marise Cremona, ‘Coherence in European Union Foreign Relations Law’ in Panos Koutrakos (ed.), European Foreign Policy – Legal and Political Perspectives (Edward Elgar Publishing 2011) at 88 questions whether ‘Article 40 TEU precludes … the use of joint CFSP and non-CFSP legal bases for an autonomous measure or international agreement’. She appears to support the view that post Lisbon such joint legal bases are possible. 67 Case C-300/89 Commission v Council (‘Titanium Dioxide’) EU:C:1991:244, paras 17–21; Joined Cases C-164/97 and C-165/97 Parliament v Council EU:C:2003:452, para 14; Case

270 Research handbook on the EU’s common foreign and security policy unanimity within the Council and very limited participation of the European Parliament is normally required for the adoption of a Union act68 whereas, as a main rule, qualified majority in the Council as well as full participation of the European Parliament is required within the field of development cooperation.69 These differences are such as to render those procedures incompatible.70 It is therefore submitted that two separate (but symmetric) legal measures – one based on the CFSP, the other on development cooperation – must be adopted rather than one single measure founded on both legal bases.71 In contrast, when it comes to agreements between the Union and third countries or international organizations, the procedure laid down in Article 218 TFEU applies. With regard to the procedure to be followed by the Council, Article 218(8) TFEU explicitly lays down that it is to act unanimously where it is to decide upon an agreement that covers a field for which unanimity is required for the adoption of a Union act. Since qualified majority voting is very exceptional in the field of the CFSP, unanimity is required in almost all cases. Where the CFSP requires unanimity, the Council will therefore apply the same procedure both on the CFSP and on development cooperation under the TFEU.72 Turning now to the European Parliament, since the ordinary legislative procedure applies to the field of development cooperation,73 the consent of the European Parliament is required before the Council can adopt an international agreement that is based on both the CFSP and upon the development cooperation provisions of the TFEU.74 C-338/01 Commission v Council EU:C:2004:253, para 57; Case C-94/03 Commission v Council EU:C:2006:2, para 52 and Case C-178/03 Commission v Parliament and Council EU:C:2006:4, para 57. 68 cf. Article 31 TEU. 69 cf. Article 294 TFEU. 70 cf. Case C-130/10 European Parliament v Council of the European Union (Usama bin Laden) EU:C:2012:472, paras 42–49. Ramses Wessel seems to take a similar view as the one put forward here: ‘Cross-pillar Mixity: Combining Competences in the Conclusion of EU International Agreements’ in Christophe Hillion and Panos Koutrakos (eds), Mixed Agreements in EU Law Revisited (Hart Publishing 2010) 52. 71 Splitting a single legal measure into two symmetric ones due to incompatible legal bases is nothing new; see, for example, Morten Broberg, ‘Undue Assistance? An Analysis of the Legal Basis of Regulation 1257/96 Concerning Humanitarian Aid’ (2009) EL Rev 769, 776–777. 72 See, for example, Joint Proposal for a Council Decision on the signing, on behalf of the European Union, and provisional application of the Political Dialogue and Cooperation Agreement between the European Union and its Member States, of the one part, and the Republic of Cuba, of the other part JOIN (2016) 42 final. 73 cf. Article 209(1) TFEU. 74 cf. Article 218(6)(a)(v). See also Piet Eeckhout, EU External Relations Law (OUP 2012) 202–203. Where an international agreement relates exclusively to the common foreign and security policy the Council can enter into the agreement without either obtaining the consent of the Parliament or consulting it. Nevertheless, even if an agreement relates exclusively to the CFSP so that neither consent nor consultation of the European Parliament is required, the Parliament may still have a right of scrutiny in respect of that policy, see Case C-658/11 European Parliament v Council of the European Union (Mauritius Agreement) EU:C:2014:2025,

EU development cooperation and the CFSP 271

4. HIGH REPRESENTATIVE AND EUROPEAN EXTERNAL ACTION SERVICE Prior to the entry into force of the Lisbon Treaty, it was often argued that in international affairs the European Union punched below its weight, and that an important reason for this was the Union’s internal organization, or rather its lack of coherent organization. One of the key objectives behind the Lisbon Treaty, therefore, was to improve the Union’s ability to act efficiently on the international stage. To this end, the position as High Representative for Foreign Affairs and Security Policy was created.75 One of the essential functions of the High Representative is to bridge both Member State and Union interests.76 In order to enable the High Representative to carry out her tasks, she is assisted by a diplomatic service – the EEAS. This service is independent of the Member States as well as of the Council and the Commission. The establishment of the EEAS has been of particular importance for the internal organization of the Union’s development cooperation policy.77 One of the most contentious issues in relation to the establishment of the EEAS has been whether and, if so, to what extent this new actor should be in charge of development cooperation policy. This question was at the centre of the sometimes heated debates about the division of tasks between the Commission and the EEAS leading up to Council Decision 2010/427/EU establishing the organisation and functioning of the European External Action Service.78 As noted by van Vooren: ‘many in the development community were worried that giving a role to the EEAS in EU development policy was a ruse of the Member States to ensure that aid resources presently managed by the Commission would be used for strategically directed objectives rather than long-term structural development objectives’.79 In in particular paras 84–86. There might be situations where the European Parliament only has a right of consultation; see in this respect Article 218(6)(b). 75 See Article 18 TEU. Regarding to what extent the post of High Representative and the creation of the EEAS has accomplished this objective, see European Court of Auditors, Special Report: The Establishment of the European External Action Service (no 11, 2014). 76 See further Chapter 2 in this volume. 77 For an early examination of the EEAS, see the European Parliament study by Jan Wouters and others, The Organisation and Functioning of the European External Action Service: Achievements, Challenges and Opportunities (2013), available at . With particular regard to the EEAS and development cooperation policy, see pp. 49–50 of the study. 78 Council Decision, establishing the organisation and functioning of the European External Action Service, [2010] OJ L210/30. See, for instance, Honor Mahony, ‘Ashton Presents Outline of Diplomatic Service’ (EU Observer, 2010) available at accessed 25 July 2018. In his article, Mahony particularly points to the very considerable sums involved in EU development cooperation as a reason why this area came to constitute the ground for one of ‘the most bitter battles’ regarding the scope and contents of the EEAS. See also Isabelle Tannous, The Programming of EU’s External Assistance and Development Aid and the Fragile Balance of Power between EEAS and DGDEVCO (2013) 18 European Foreign Affairs Review 329. 79 See Bart van Vooren, ‘A Legal-institutional Perspective on the European External Action Service’ (2011) 48 CML Rev 475.

272 Research handbook on the EU’s common foreign and security policy other words, to transfer development cooperation policy powers from the Commission to the EEAS is not merely a technical question of institutional balance. The transfer of such competence to the EEAS was justified by a wish to attain a higher degree of coherence between the development cooperation policy and other external policies. In particular, transferring some of this competence to the EEAS would likely entail a weakening of the marked distinction which hitherto the Commission has applied between, on the one hand, African, Caribbean and Pacific (ACP) countries and, on the other hand, other developing countries. A transfer of development policy competence to the EEAS could also entail more coherence with regard to thematic divisions since the transfer to the EEAS means that subjects that previously were treated by different Directorates-General within the Commission will now be treated under one and the same roof. Indeed, as we have seen above in Section 3, the Comprehensive Approach, the Global Strategy and the New Consensus all seek to combine the European Union’s development cooperation policy and the CFSP. In the years immediately after the entry into force of the Lisbon Treaty clear warnings against the convergence of development cooperation and the CFSP were voiced by the European development cooperation community, arguing that the impetus for the EEAS to create a single, consistent external policy could mean that development cooperation and CFSP could become so tightly interwoven that it would be difficult to distinguish between them, and that the ‘soft’ development cooperation policy objectives would ‘suffer’ under the influence of other ‘harder’ and more traditional foreign policy objectives.80 As we have seen in Section 3, these warnings seem to have been justified to a considerable extent. From a legal point of view, some have claimed that the Treaties preclude the transfer of development cooperation policy responsibility to the EEAS.81 Arguments of this kind tend to rest on the Treaty provisions on external representation. Thus, Article 17(1) TEU provides that it is the Commission’s competence to ‘ensure the Union’s external representation’, whereas Articles 18 and 27 TEU explicitly provide that the High Representative is responsible for the CFSP (only), and that the EEAS is to assist the High Representative. However, as van Vooren has shown, the legal situation is considerably more complex. The better view probably is that the constitutional framework introduced by the Lisbon Treaty is ambiguous and that the Treaties leave a considerable degree of flexibility as 80 See in this respect ‘EEAS One Year On: “Work in Progress” for Poverty Eradication’, Concord Europe (2012), available at accessed 30 July 2017; and Simon Stroß, ‘Programming EU External Action Post-Lisbon: New Opportunities or Business as Usual?’ accessed 30 July 2017. See also Mark Furness, ‘Opinion: The European External Action Service’s Role in EU Development Policymaking Requires Safeguards’ (Deutsche Welle, 2010) available at accessed 30 July 2017; and the discussions in ‘Is EU Development Aid Entering a New Era in the Wake of the Lisbon Treaty?’ (Development Policy Forum 2008) available at . 81 See, for example, White & Case LLP, Memorandum entitled ‘Legal Objections to the EEAS’ Involvement in EU Development Cooperation Activities’, 16 April 2010, para 3.7.

EU development cooperation and the CFSP 273 regards the division of tasks between the Commission and the High Representative/ EEAS in the field of external relations.82 In particular, the general task of the High Representative and the EEAS to ensure consistency in EU external relations suggests that the Treaties do not preclude these new actors from playing a (partial) role also in the formulation and implementation of development cooperation policy. Arguably, the Treaties therefore do not preclude a (partial) transfer of development cooperation policy from the European Commission to the EEAS.83 In this light, as noted by Duke and Blockmans, the debate surrounding the transfer of development cooperation to the EEAS should centre less on issues of legality and more on how development-related interests can be upheld in the EEAS.84 At present, a compromise has been struck whereby the EEAS has been given the task of political coordination as regards a number of external assistance instruments.85 This is merely a power of coordination, however. Thus, the competence actually transferred to the EEAS is procedural in nature and does not concern policy issues. Consequently, as a matter of principle, management of the Union’s external cooperation programmes remains the responsibility of the Commission.86

82

See van Vooren (n 79), particularly 486–491. See likewise Simon Duke and Steven Blockmans, ‘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 2010) available at accessed 30 July 2017. But contrast with Mirjam van Reisen, ‘Note on the Legality of Inclusion of Aspects of EU Development Cooperation and Humanitarian Assistance in the European External Action Service (EEAS)’ (2010) available at accessed 30 July 2017, who at p. 2 observes: ‘The Lisbon Treaty defines no powers to divide development cooperation policy and humanitarian assistance between the EEAS and the Commission. Any such proposals should be regarded as illegal under the Treaty.’ 84 Duke and Blockmans (n 83) 14. 85 This is in line with the Report of 23 October 2009 from the Swedish Presidency to the European Council on the European External Action Service (DOC 14930/09) (2009) available at accessed 30 July 2017. 86 Article 9 of Council Decision 2010/427/EU. See, generally, Steven Blockmans and Christophe Hillion (eds), EEAS 2.0: A Legal Commentary on Council Decision 2010/427/EU Establishing the Organisation and Functioning of the European External Action Service (Working Paper No. 1, CLEER 2013) available at accessed 30 July 2017; Steven Blockmans and Christophe Hillion (eds), EEAS 2.0: Recommendations for the Amendment of Council Decision 2010/427/EU Establishing the Organisation and Functioning of the European External Action Service (Special Report No. 78, CEPS 2013) available at accessed 15 October 2017, and Report of the High Representative of the Union for Foreign Affairs and Security Policy of 22 December 2015 to the Council on implementing the EEAS Review, Brussels, 11 January 2016, document HR(2015) 170 (in particular section 2). 83

274 Research handbook on the EU’s common foreign and security policy

5. FINDINGS Above we have observed that the Lisbon Treaty has elevated some objectives, which pre Lisbon could be found in the chapter on the Union’s development cooperation policy, to horizontal objectives, which guide all the European Union’s actions in the field of external relations. This suggests that these objectives have been strengthened from a constitutional point of view. It is also shown that we are witnessing a generalization of objectives and principles that previously belonged to specific policy areas, thereby embedding these objectives and principles more firmly in the Union legal order. With particular regard to the European Union’s development cooperation policy we have found that making the reduction/eradication of poverty a ‘primary objective’ of European Union development cooperation policy suggests that this objective should be accorded particular weight within the field of development cooperation as well as in cases of conflict with other objectives. Apart from this preference for poverty reduction/eradication, the streamlining of the Union’s external relations objectives has not led to new hard legal obligations as regards the Union’s exercise of its development cooperation competence as compared to the pre-Lisbon situation. Even though the Lisbon Treaty has made poverty eradication a primary objective of the Union’s development cooperation policy, the above examination has also shown that in practice other objectives are attributed very considerable weight in the development cooperation policy; this is particularly so with regard to security and migration. To some extent this may be explained by the Lisbon Treaty’s revamping of the European Union’s external relations framework; in particular the streamlining of objectives provided by Article 21 TEU and the creation of the High Representative/the EEAS. In other words, in particular in the fields of security and migration, the EU development cooperation policy encroaches upon the CFSP. The above examination also shows that the use of development cooperation policy for the pursuit of objectives that primarily fall under the CFSP has been reinforced by the adoption of the New Consensus. Similarly, it has been demonstrated that the European Union’s CFSP pursues objectives that in principle fall within the development cooperation objectives – both at the general level and when we turn to the implementation of the CFSP. This is particularly so in the areas of security and migration, where the CFSP is used to further objectives that also have a clear development or humanitarian aspect. In other words, it is clear that there is mutual encroachment of the European Union’s development cooperation policy and its CFSP – first of all with regard to security and migration. In practice this means that EU legal measures may simultaneously pursue both CFSP and development cooperation objectives, or at least they may contain components from both policy fields. The Union legislator must therefore consider whether, in the specific case, it is possible to have one legal measure founded on the dual legal basis of both the CFSP and development cooperation. In this respect it is argued that, when it comes to international agreements, a dual legal basis is possible, but it is also submitted that when it comes to internal legal measures the procedural differences between the CFSP and the development cooperation policy are such as to preclude the use of a single legal measure founded on both legal bases.

EU development cooperation and the CFSP 275 Finally, turning to the organization of the European Union’s development cooperation policy and its CFSP, it is observed that a compromise has been struck whereby the EEAS has been given the task of political coordination as regards a number of external assistance instruments. However, this is merely a power of coordination, meaning that the competence actually transferred to the EEAS is procedural in nature and does not concern policy issues. Consequently, management of the Union’s external cooperation programmes continues to be the responsibility of the Commission.

13. The CFSP–humanitarian aid nexus Mireia Estrada Cañamares

1. INTRODUCTION The nexus between the Common Foreign and Security Policy (CFSP) and the humanitarian aid policy is one of the most obvious policy nexuses in EU external relations. Common Security and Defence Policy (CSDP) missions and operations – the ‘stars’ of the CFSP toolbox – are very often deployed in crisis situations where humanitarian aid is of utmost importance and is, thus, also part of the Union’s response.1 This is, however, a problematic nexus since the humanitarian aid policy is subject to the principles of humanity, neutrality, impartiality and independence. This chapter briefly looks into the CFSP and the humanitarian aid policy as separate areas of EU external action. It then focuses on the intertwined character of these two policy fields: the CFSP–humanitarian aid nexus. The chapter also highlights the risks of this nexus from the perspective of the independence and, ultimately, the success of EU humanitarian aid. It finally suggests that the quest for coherence, which was relaunched by the Lisbon Treaty reforms, has the potential of reinforcing the CFSP–humanitarian aid nexus, adding even more pressure to the independence of humanitarian aid. The goal of this chapter is twofold. First, it aims to show that there is a tension between the CFSP–humanitarian aid nexus and the need to respect the special character of EU humanitarian aid. Second, it draws attention to the fact that the quest for coherence in the Union’s external action, as expressed in the Treaty framework and in policy documents, can be thought of as a promoter of this nexus.

2. THE CFSP AND THE HUMANITARIAN AID POLICY AS SEPARATE POLICY AREAS This section introduces the CFSP and the humanitarian aid policy as separate policy areas of the Union, which is necessary to understand how they may relate to one another. It briefly analyses their Treaty-defined substantive scope and the EU actors that are essentially responsible for their definition and implementation. Given the overall topic of this volume,2 the humanitarian aid policy is considered in greater detail.

1

Note that this chapter focuses in particular on the CSDP as an integral part of the CFSP, leaving aside considerations as regards the diplomatic dimension of the CFSP. 2 For an in-depth analysis of the nature of the CFSP-CSDP as an EU policy area see Chapter 1 in this volume.

276

The CFSP–humanitarian aid nexus 277 2.1 The CFSP The Treaties are extremely open ended as regards the substantive scope of the CFSP. Article 24(1) TEU establishes that the CFSP can cover ‘all areas of foreign policy and all questions relating to the Union’s security’. The mandate of the CSDP is better articulated. Article 42(1) TEU establishes that the Union may use civilian and military assets ‘on missions outside the Union for peace-keeping, conflict prevention and strengthening international security’. Article 43(1) TEU complements the former by setting out a list of CSDP tasks and specifies that these tasks can be used in the fight against terrorism: ‘Joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation.’ The CSDP is defined in the Treaties as an integral part of the CFSP. It was introduced into EU primary law in the Treaty of Amsterdam (1997).3 The CSDP is implemented using the civilian and military capabilities of Member States.4 Decisions on CSDP matters require the unanimity of the Council on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy and Vice-President of the Commission (HRVP) or an initiative from a Member State.5 The European Council and the Council, the institutions that represent the Member States of the Union, are in charge of the definition of the CFSP.6 The HRVP is responsible for the conduct of this policy field. She chairs the Foreign Affairs Council (FAC),7 which is the configuration of the Council concerned with the CFSP. Moreover, the HRVP (assisted by the European External Action Service (EEAS)) presents proposals to the Council on CFSP matters, including recommendations regarding international agreements.8 The HRVP is also tasked with ensuring coordination between the civilian and military aspects of CSDP tasks, in close cooperation with the Political and Security Committee (PSC). Together with the President of the European Council, the HRVP represents the Union in CFSP matters.9 Institutional structures that are important in the definition and implementation of the CFSP, such as the Crisis Management and Planning Directorate (CMPD) and the EU Military Staff (EUMS), are under the EEAS and thus under the control of the HRVP.10

3 The CSDP was named European Security and Defence Policy (ESDP) until the entry into force of the Lisbon Treaty. 4 Article 42(1) TEU. 5 Article 42(4) TEU. 6 Articles 15(2) and 16(2) TEU. 7 Article 18(3) TEU. 8 Article 18(2) TEU, Council Decision establishing the EEAS (2010/427/EU) and Article 218(3) TFEU. 9 Articles 15(6) and 27(2) TEU. 10 Article 4 of the Council Decision establishing the EEAS (2010/427/EU).

278 Research handbook on the EU’s common foreign and security policy 2.2 The Humanitarian Aid Policy The first reference to humanitarian aid in EU law goes back to the second Yaoundé Convention, signed in 1969 between the then European Economic Community (EEC) and the Association of the Associated African States and Madagascar (AASM). However, it was not until the entry into force of the Lisbon Treaty that the humanitarian aid policy was recognized as a fully fledged policy area of the Union.11 In fact, the Lisbon Treaty put an end to the anomaly that had affected this field of external action since 1996. Between that time and the entry into force of the Treaty of Lisbon, EU humanitarian aid measures were adopted on the basis of Council Regulation 1257/96, which was founded on a development cooperation legal basis.12 Today, Article 214 TFEU grants humanitarian aid the status of an EU policy in its own right, and aid instruments refer to this provision as their legal basis. The humanitarian aid policy is subject to the ordinary legislative procedure, which means that the Parliament and the Council jointly adopt legislative acts that are fundamental for its development.13 It is a shared competence that is not subject to pre-emption. EU action on humanitarian aid does not prevent Member States from conducting their humanitarian aid policies and, thus, exercising their competence in this area.14 The substantive scope of the humanitarian aid policy is defined in the first paragraph of Article 214 TFEU, which establishes that EU humanitarian operations ‘[s]hall be intended to provide ad hoc assistance and relief and protection for people in third countries who are victims of natural or man-made disasters, in order to meet the humanitarian needs resulting from these different situations’. The second paragraph of the same provision determines that these operations shall comply with ‘the principles of international law and with the principles of impartiality, neutrality and non-discrimination’. Despite the phrasing, which can lead to confusion, these three principles are principles of international law (in particular, humanitarian principles) that bind the EU. In fact, this sentence constitutes a recognition that the humanitarian aid policy is bound by two out of the seven fundamental principles of the International Red Cross and Red Crescent Movement, proclaimed in Vienna in 1965 by the 20th International Conference of the Red Cross and Red Crescent Movement.15 Surprisingly, while the UN General Assembly has endorsed the three 11 On the evolution of the humanitarian aid policy in EU primary law since its early days, see P Van Elsuwege, J Orbie and F Bossuyt, ‘Humanitarian Aid Policy in the EU’s External Relations: The Post-Lisbon Framework’ (2016) 3 SIEPS 15–23. 12 Council Regulation (EC) No 1257/96 of 20 June 1996 concerning humanitarian aid [1996] OJ L163/1. This Regulation defined as its legal basis former Article 130w of the EC Treaty, which corresponds to current Article 209 TFEU, regarding the development cooperation policy. 13 Article 214(3) TFEU. 14 Article 4(4) TEU. 15 Together with the principles of impartiality and neutrality, the Fundamental Principles of the International Red Cross and Red Crescent Movement include those of humanity, independence, voluntary service, unity and universality. The definition of these principles was revised in the Statutes of the International Red Cross and Red Crescent Movement, adopted by the 25th International Conference of the Red Cross, Geneva, 1986.

The CFSP–humanitarian aid nexus 279 principles enshrined in Article 214(2) TFEU, together with that of independence, EU Member States have refused to include in the Treaties an explicit reference to the latter as a principle to be respected when implementing EU humanitarian aid operations.16 This situation differs from the European Consensus on Humanitarian Aid (2008), which is the most important policy document guiding the humanitarian aid policy, and which clearly states: ‘[t]he EU is firmly committed to upholding and promoting the fundamental humanitarian principles of humanity, neutrality, impartiality and independence.’17 The European Consensus on Humanitarian Aid, which is an agreement between the Council, the Commission, the Parliament and the Member States, defines each of these four principles. According to the principle of humanity, ‘[h]uman suffering must be addressed wherever it is found, with particular attention to the most vulnerable in the population. The dignity of all victims must be respected and protected.’ The principles of neutrality and impartiality ensure that humanitarian aid does ‘not favour any side in an armed conflict or other dispute’ and that it is provided ‘solely on the basis of need, without discrimination between or within affected populations’. Lastly, the principle of independence guarantees ‘[t]he autonomy of humanitarian objectives from political, economic, military or other objectives, and serves to ensure that the sole purpose of humanitarian aid remains to relieve and prevent the suffering of victims of humanitarian crises’. As can be seen from these definitions, the principle of independence of humanitarian action is a means to ensure that the other three principles, and those of neutrality and impartiality in particular, are protected. The question then arises as to how the Union intends to secure the impartiality and neutrality of humanitarian aid without recognizing its independence in the Treaties.18 Finally, on the institutional side, the Commission represents the Union on humanitarian aid matters, and presents proposals regarding legislative acts and recommendations on international agreements affecting the humanitarian aid policy.19 DG ECHO is the Directorate-General of the Commission in charge of the implementation of EU humanitarian aid, under the leadership of the Commissioner for Humanitarian Aid and Crisis Management.20 Moreover, as the chairperson of the FAC and the Commissioner’s Group on External Action (CGEA), the HRVP is involved in the development of the 16 The principles of impartiality, neutrality and non-discrimination were endorsed in UN General Assembly Resolution 46/182 (1991). The principle of independence was adopted in UN General Assembly Resolution 58/114 (2004). 17 See ‘The European Consensus on Humanitarian Aid’, Joint Statement by the Council and the Representatives of the Governments of the Member States meeting within the Council, the European Parliament and the European Commission (2008/C 25/01), paras 10–15. 18 On the lack of recognition of the principle of independence of EU humanitarian aid see Section 5.1. 19 Article 17(2) and (1) TEU; Article 218(3) TFEU. 20 The full name of DG ECHO is Directorate-General European Civil Protection and Humanitarian Aid Operations. This DG is also responsible for the implementation of the Union’s civil protection policy, which relates to natural or man-made disasters taking place within the EU (Article 196 TFEU).

280 Research handbook on the EU’s common foreign and security policy Union’s humanitarian aid policy.21 The FAC is the configuration of the Council where humanitarian aid matters are discussed. The CGEA brings together the different Commissioners with an external portfolio and meets on a regular basis.22

3. THE CFSP AND THE HUMANITARIAN AID POLICY AS INTERTWINED POLICY AREAS The previous section has presented the CFSP and the humanitarian aid policy as separate policy areas of external action. This section considers the interactions between the CFSP and humanitarian aid policy. It does so at the level of Treaty-defined policy objectives, at the level of policy definition and at the level of policy strategies. It is undeniable that the Treaty framework reveals a potential for the coexistence of measures adopted under CFSP and humanitarian aid legal bases in the Union’s action in specific third states. The tasks of the CSDP listed in Articles 42–43 TEU refer to the whole cycle of crisis management. They span from conflict prevention to peacekeeping and post-conflict stabilization. They include humanitarian and rescue tasks. On the other hand, Article 214 TEU establishes that, under the humanitarian aid policy, the Union will provide assistance, relief and protection for victims of natural or man-made disasters outside the EU.23 The development of the CSDP since its creation in 1997 has confirmed this potential. If Member States had decided to turn the EU into a strong military power, the CFSP–humanitarian aid nexus would not have become so obvious. However, since the first deployment of EU troops in the Former Yugoslav Republic of Macedonia (FYROM) in March 2003, under EUFOR Concordia, the CSDP has repeatedly been used to tackle crisis and post-crisis situations affecting some of the most fragile states in the world. To mention but a few examples, the CSDP has been active in the Darfur region (EU support to Amis, between 2005 and 2007), in Mali (EUTM Mali, since 2013) and in Afghanistan (EUPOL Afghanistan, between 2007 and 2016).24 These are all scenarios where the EU has also provided humanitarian aid.25 Moreover, rather than prioritizing peace enforcement through the deployment of combat forces, CSDP missions and operations have often focused on institutionbuilding in transitional and post-conflict contexts.26 Civilian crisis management has 21

Articles 17(4) TEU and 27(1) TEU. See the Decision of the President of the European Commission on the Creation of a Commissioner’s Group on External Action C (2014) 9003). On the CGEA see Section 5.1 and note 73. 23 As regards the procedural dimension of the relationship between the CFSP and the humanitarian aid policy, see Section 5.1. 24 See Chapters 5 and 6 in this volume. 25 See, for instance, the Humanitarian Aid Decision (ECHO/SDN/BUD/2006/02000), whose objective was to provide life-saving assistance to the victims of the Darfur conflict and Commission Decision (C(2014) 3028 final), which provided aid to reduce malnutrition-related mortality among children under five in the Sahel region. 26 EU NAVFOR Atalanta, which has been fighting piracy at sea off the Somali coast since 2008, stands out as an example of a CSDP operation that deploys combat forces in crisis 22

The CFSP–humanitarian aid nexus 281 clearly gained the upper hand over military crisis management, with around two-thirds of the CSDP missions deployed to date being of a civilian nature. Both the civilian and the military dimensions of the CSDP have put state institutions at the centre of their attention.27 They have provided training and advice to police, military, judicial and law enforcement institutions, thus aiming to contribute to capacity-building and reform in the rule of law and security sectors. For instance, the mandate of EUTM Somalia is to train the Somali military forces; one of the objectives of EUBAM Libya is to advise the Libyan authorities on border management-related matters; and EUCAP Sahel Niger is mandated to support Nigerian security agencies in the fight against terrorism and organized crime.28 But being present in the same external crises is not the only way in which the CFSP and humanitarian aid have come to be seen as interconnected EU policy fields. The mandates of CSDP missions and operations have also often supported humanitarian objectives. For instance, one of the objectives of EU NAVFOR Atalanta is the ‘protection of vessels of the WFP delivering food aid to displaced persons in Somalia’.29 Another example is to be found in EUFOR Chad/RCA, which was active between 2008 and 2009, and whose mandate included the protection of civilians, the facilitation of humanitarian aid delivery, and the free movement of humanitarian aid workers. From a different perspective, the Union has used CSDP assets to support EU operations implemented under the humanitarian aid policy. It did so, for example, in the floods in Pakistan (2010), in the aftermath of the Haiti earthquake (2011) and in the context of the Ebola crisis (2014).30 Wherever the Union deploys a CSDP mission or operation and provides humanitarian aid in parallel, the need to ensure complementarity between that CSDP intervention and humanitarian aid measures in place becomes central. This view explains the development of policy strategies, which are adopted as soft law instruments, encompassing these two policy areas. These documents, whose scope is either thematic or geographic, seek to maximize the complementarity of the different policies of the Union and the overall effectiveness of its action. A good example is the EU’s comprehensive approach to external conflict and crises (2013), which stresses that the Union should ‘[f]urther develop and systematically implement a common methodology management. This operation was established by Council Joint Action 2008/851/CFSP of 10 November 2008. 27 Monitoring missions have also been an important part of CSDP crisis management. For instance, the Aceh Mission monitored the implementation of the peace agreement between Indonesia and the Free Aceh Movement (GAM) between 2005 and 2006. 28 These three missions are ongoing. They were launched in 2010 (EUTM Somalia), 2012 (EUCAP Sahel Niger) and 2013 (EUBAM Libya). They were established by Council Decision 2010/96/CFSP of 15 February 2010, Council Decision 2012/392/CFSP of 16 July 2012 and Council Decision 2013/233/CFSP of 22 May 2013, respectively. 29 See Article 1(1) of Council Joint Action 2008/851/CFSP of 10 November 2008 (EU NAVFOR Atalanta) and Council Joint Action 2007/677/CFSP of 15 October 2007 (EUFOR Tchad/RCA). 30 See DG ECHO’s website on civil–military relations in humanitarian crises, available at accessed 2 July 2017.

282 Research handbook on the EU’s common foreign and security policy to conflict and crisis analysis, including development, humanitarian, political, security and defence perspectives from both the field and HQ, by all relevant available knowledge and analysis, including from Member States’.31 Another factor justifying the development of strategic policy documents covering the CFSP and the humanitarian aid, as well as other policy areas, is the central character of institution-building in the Union’s external action. As already mentioned, contributing to strengthening the capacities of state institutions is a clear priority of EU foreign policy.32 It is understood that the well-being of citizens must be protected, and it is the responsibility of states to guarantee such protection. Under this paradigm, challenges are conceived as partly a result of the inability or unwillingness of states to serve their citizens, which is referred to as weak governance in the less severe cases and state fragility in the most complex ones.33 According to the Commission, state fragility refers to ‘[w]eak or failing structures and to situations where the social contract is broken due to the State’s incapacity or unwillingness to deal with its basic functions, meet its obligations and responsibilities’.34 The focus on state fragility has contributed to the idea of a nexus between the CFSP and the rest of EU policies implemented in parallel in particular third states. All of them, including the humanitarian aid policy, have come to be seen as part of ‘the EU response’ to the problems faced by certain partner countries.35 This is why the prioritization of institution-building has justified the development of strategic policy documents encompassing the different elements of external action.

4. THE RISKS OF THE CFSP–HUMANITARIAN AID NEXUS FOR THE SUCCESS OF THE HUMANITARIAN AID POLICY This section considers why the CFSP–humanitarian aid nexus is a risk for the independence of the humanitarian aid policy. It then analyses why a non-independent humanitarian aid policy may be a problem for the success of this EU policy area. 31 European External Action Service, ‘The EU’s comprehensive approach to external conflict and crises’ JOIN (2013) 30 final 5. On the idea of the EU’s comprehensive approach, see Section 5.2. 32 The EU’s strategic approach to resilience (2017) identifies as one of its priorities strengthening ‘[t]he capacities of a state – in the face of significant pressures to build, maintain or restore its core functions, and basic social and political cohesion, in a manner that ensures respect for democracy, rule of law, human and fundamental rights and fosters inclusive long-term security and progress’. Commission, ‘A Strategic Approach to Resilience in the EU’s external action’ JOIN (2017) 21 final 3. 33 In the case of security challenges, this perception responds to a shift in the understanding of the root causes of this kind of challenge. After the Cold War, the notion of security broadened. Beside the threat of war between nations, it incorporated the need to ensure a certain degree of economic and political stability. See, for instance, C Buger and P Venesson, ‘Security, Development and the EU’s Development Policy’ (2009) EUI Working Paper 8; D Chandler, ‘The Security-Development Nexus and the Rise of “Anti-foreign Policy”’ (2007) 10(4) Journal of International Relations and Development 267. 34 Commission, ‘Towards an EU response to situations of fragility’ COM (2007) 643 final 5. 35 ibid.

The CFSP–humanitarian aid nexus 283 As explained in Section 3, the boundaries between the tasks and objectives of the CFSP and the humanitarian aid policy are diffuse. Is the facilitation of humanitarian aid delivery a CFSP task or a humanitarian aid task? Moreover, the coexistence of CFSP and humanitarian aid measures in crisis management contexts, together with the mainstreaming of institution-building in EU external action, have led to the understanding that CFSP and humanitarian aid interventions are part of ‘the EU response’ and should, therefore, be guided by common policy strategies. The CFSP and the humanitarian aid policy can hardly be perceived as totally independent of each other, either at the level of Treaty objectives, or as regards the policy strategies that guide their development and implementation, nor in view of how these two policy areas are developed in practice. This is why the CFSP–humanitarian aid nexus is intrinsically in tension with the idea of a truly independent humanitarian aid policy. We should recall that, when defining the principle of independence of humanitarian aid, the EU states that humanitarian aid objectives should remain autonomous from ‘political, economic, military or other objectives’, which ‘serves to ensure that the sole purpose of humanitarian aid remains to relieve and prevent the suffering of victims of humanitarian crises’.36 The Union is aware of this tension, which is why common policy strategies encompassing the humanitarian aid policy as well as other EU policy areas, such as the CFSP, often include references to the need to respect the independence of humanitarian aid. For instance, the EU’s comprehensive approach to external conflict and crises claims: ‘[h]umanitarian aid shall be provided in accordance with its specific modus operandi, respectful of the principles of humanity, neutrality, impartiality and independence, solely on the basis of the needs of affected populations, in line with the European Consensus on Humanitarian Aid’.37 This sort of ‘reminder’ can also be found in policy documents concerning the Union’s engagement in particular third states. For example, the National Indicative Programme for the Federal Republic of Somalia (2014–2020), which defines the general orientation for cooperation between Somalia and the EU under the European Development Fund, establishes: ‘EU engagement in Somalia is multidimensional: development cooperation is complemented by other EU institutions and instruments that focus on political dialogue, stabilisation, security sector development, crisis management, humanitarian aid and trade. The EU works more and more towards an integrated approach to Somalia.’38 This statement is complemented with a footnote, right after the reference to humanitarian aid, which specifies: EU humanitarian aid is part of the EU’s overall approach to Somalia. It is nevertheless not a crisis management tool and is provided solely on the basis of needs to preserve life, prevent and alleviate human suffering and maintain human dignity in line with the fundamental humanitarian principles of humanity, neutrality, impartiality and independence.

36

See ‘The European Consensus on Humanitarian Aid’ (n 17) para 14. ‘The EU’s comprehensive approach to external conflict and crises’ (n 31) 4. 38 Commission Decision of 11 June 2014 on the adoption of the National Indicative Programme between the European Union and Somalia COM (2014) 3715 final 6. 37

284 Research handbook on the EU’s common foreign and security policy Preserving the independence of humanitarian aid when this policy area is part of the Union’s overall approach to a particular state is obviously a challenge. But regardless of whether the EU manages or not, it will be difficult for any external observer to think of humanitarian aid as independent when this policy field is part of the EU’s overall response. This perception, alone, may challenge the success of the humanitarian aid policy.39 Moreover, as part of the EU’s overall engagement in particular third states, the humanitarian aid policy is part and parcel of a kind of engagement that is particularly politicized. In its response to external conflict and crises the Union prioritizes building state capacities. By doing so, the Union takes sides in extremely sensitive situations affecting the internal politics of third states, as institution-building measures strengthen one of the conflict parties, to the detriment of the others. This is why, through the definition of common policy objectives and the idea of ‘the EU response’, the humanitarian aid policy becomes part of the overall strategy of an actor whose intervention in third states can hardly be considered neutral with regard to internal conflict. A great example of the Union taking sides in extremely sensitive situations affecting the internal politics of third states is the continued support to the federal institutions of Somalia, including through the CSDP.40 Since the adoption of the Transitional Federal Charter of Somalia in 2004 to date, the EU’s support for the federal institutions has been unequivocal.41 Over the last decade, the Union has repeatedly stressed that the federal institutions should ensure that all stakeholders (that is, clan elders, Islamic leaders and civil society) are engaged in an inclusive reconciliation process. It has also mentioned that the government of Somalia should be broad based and reach out to all sectors of Somali society.42 However, the Union has undoubtedly positioned itself on the side of the federal institutions of Somalia. A case in point was the EU’s response to the role of the Union of Islamic Courts (UIC) in 2006. When the UIC controlled certain parts of the territory of Somalia, the EU clearly defended the transitional federal institutions. The Union did not even refer to the fact that the UIC controlled a part of the territory and were supported by a significant part of the population: ‘[t]he Council expresses its deep concern about the continuing tensions in Somalia between the UIC and the TFIs [transitional federal institutions]. The Council reconfirms its support to the TFIs as the only legitimate political representation in Somalia as defined in the 39 ‘In order to be effective, humanitarian aid must not only be neutral, but also must be perceived as such.’ Van Elsuwege, Orbie and Bossuyt (n 11) 62. 40 The Union’s engagement in the Horn of Africa is a good demonstration of the CSDP repertoire as it includes a maritime military operation (EUNVAFOR Atalanta, since 2008), a military training mission (EUTM Somalia, since 2010) and a mission with an important rule-of-law component (EUCAP Somalia, since 2012). The latter was originally called EUCAP Nestor and renamed EUCAP Somalia as of March 2017. 41 In 2004 the Council claimed: ‘[t]he EU reaffirms its commitment and stands ready to continue to support Somalia throughout the electoral process, in full respect of the sovereignty, territorial integrity, political independence and unity of the country.’ In 2017, after the conclusion of the electoral process, the Council reaffirmed its support to the newly elected government. See the Council Conclusions on Somalia (15145/04), 3 and (7614/17), para 1. 42 See, for all, the Council Conclusions on Somalia (5546/07), 3.

The CFSP–humanitarian aid nexus 285 Transitional Federal Charter (TFC).’43 Likewise, the EU has minimized the role of clan leaders in Somalia and it has often avoided referring to Somaliland as a de facto independent state. The foregoing is not to criticize the Union’s engagement in Somalia over the last decade, which is in line with UN Security Council resolutions on Somalia. It is simply an example of the eminently political character of the EU’s action in particular third states. It can give an idea of the dangers of linking the humanitarian aid policy to the Union’s overall approach to these states. The independence of humanitarian aid from the other policy areas in EU external action (including the CFSP) is clearly under pressure. The question then is why a non-independent humanitarian aid policy (or one which is simply not perceived as such) may be problematic for the success of this policy area. Katharine Derderian, Aurélie Ponthieu and Andrea Pontiroli, from Médecins Sans Frontières (MSF),44 identify at least four risks whenever humanitarian aid is perceived as being part of a political or military strategy.45 First, they argue that authorities or local actors may impede access to populations in need. Second, they state that those receiving aid may hesitate to accept it, for fear that it is politically compromised and that, by accepting it, they may be subject to retaliation by one of the conflict parties. Third, the authors recall that the safety of both humanitarian workers and those seeking assistance may be compromised.46 Fourth, NGOs may decide not to participate in humanitarian aid operations if they perceive that these are part of overall political strategies.47 The wide use of visibility waivers in the implementation of EU humanitarian aid operations by NGOs, through which these organizations are exempted from EU visibility rules, is a clear example of the will of humanitarian workers not to be perceived as part of the Union’s overall strategy. We should bear in mind that NGOs, as the main implementers of EU humanitarian aid, are essential to the success of the Union’s humanitarian aid policy. They clearly oppose the establishment of any links between the objectives of humanitarian aid and those of any other policy. This was clearly reflected in the words of Christophe Fournier, former International President of MSF, in a speech to NATO staff:48 People across cultures recognize in our vulnerability the human compassion which drives the medical act and they trust us. … I am nervous about the ‘unity of purpose’ you consider so 43

Council Conclusions on Somalia (12877/06), 2. K Derderian, A Ponthieu and A Pontiroli, ‘Losing Principles in the Search for Coherence? A Field-Based Viewpoint on the EU and Humanitarian Aid’ (29 May 2013) The Journal of Humanitarian Assistance. 45 The Union seems to be aware of these risks. ‘The European Consensus on Humanitarian Aid’ (n 17), para 10 states that respect for the humanitarian principles ‘is essential to the acceptance and ability of the EU, and humanitarian actors in general, to operate on the ground in often complex political and security contexts’. 46 The EU knows what it means to suffer an attack. The shooting down of a helicopter of the European Community Monitoring Mission (ECMM) in the context of the Croatian War of Independence in 1992 stands out as a clear example. 47 The authors claim that MSF took this decision in Afghanistan, Somalia and Northern Mali. See Derderian, Ponthieu and Pontiroli (n 44). 48 Speech delivered at a Conference in Rheindahlen (Germany), 7–8 December 2009, organized by NATO’s Allied Rapid Reaction Corps (ARRC). 44

286 Research handbook on the EU’s common foreign and security policy crucial to the achievement of your objectives. This is a ‘unity of purpose’ MSF believes is harmful to this trust. It casts doubt upon our integrity as humanitarians because people may doubt our motives or our objectives.

Minimizing the risks and ensuring that humanitarian aid is accessible where it is most needed is not possible if the humanitarian principles of impartiality, neutrality and non-discrimination are not respected. At the same time, this can only happen if the independent status of humanitarian aid is guaranteed. We should bear in mind that the principle of independence of humanitarian action is a means to secure respect for the other humanitarian principles.49 This proves particularly difficult in the context of the CFSP–humanitarian aid nexus, which justifies the claim that, from the perspective of the success of the humanitarian aid policy, this nexus is ‘a necessary evil’.

5. THE QUEST FOR COHERENCE AS A DRIVER OF THE CFSP–HUMANITARIAN AID NEXUS This section argues that the quest for coherence, which finds its clearest legal expression in Articles 7 TFEU and 21(3) TEU,50 has motivated the introduction of certain innovations in the Lisbon Treaty, such as the single set of EU external objectives.51 It claims that these reforms of the primary law of the Union are designed to strengthen the interconnections between the different policy areas of the EU. They can, therefore, have an impact on policy nexuses such as the one between the CFSP and the humanitarian aid policy. Paradoxically, although the Lisbon Treaty has conferred on humanitarian aid the status of a policy field in its own right, it has brought about a set of reforms that seriously threaten its independence.52 Sections 2, 3 and 4 of this chapter have focused on the CFSP and the humanitarian aid policy in particular. This section looks at the broader picture to draw attention to the potential impact on the CFSP–humanitarian aid nexus of a set of legal innovations (and 49 As regards the function of the principle of independence of humanitarian aid, see Section 2.2 in this chapter. 50 Article 7 TFEU establishes: ‘[t]he 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.’ According to Article 21(3) para 2 TEU: ‘[t]he 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.’ 51 Articles 3(5) and 21 TEU. 52 According to Jan Orbie, Peter Van Elsuwege, and Fabienne Bossuyt, ‘[i]t remains contested whether the independence of humanitarian aid has been reinforced through the insertion of a separate chapter in the Lisbon Treaty … or whether the EU’s quest for more coherence would lead to the subordination of the humanitarian imperative to overriding security, development, and trade goals (as feared by some NGOs)’ (reference omitted), J Orbie, P Van Elsuwege and F Bossuyt, ‘Humanitarian Aid as an Integral Part of the European Union’s External Action: The Challenge of Reconciling Coherence and Independence’ (2014) 40 Journal of Contingencies and Crisis Management 160.

The CFSP–humanitarian aid nexus 287 policy developments, in the case of ‘the EU’s comprehensive approach’), which are in most cases outside the Treaty provisions specific to CFSP and humanitarian aid. This section concludes by highlighting that the Union ought to strike a balance between the promotion of coherence in external action and the protection of the independence of EU humanitarian aid. The quest for coherence in EU external relations is concerned with the substance of the different policies and activities developed in the Union’s external action.53 As far as the CFSP–humanitarian aid nexus is concerned, this means that measures implemented under CFSP and humanitarian aid legal bases should not only not contradict each other (be consistent), but also complement and reinforce each other (be coherent). From this perspective, ‘consistency’ constitutes a necessary but insufficient condition for ‘coherence’. ‘Consistency’ is linked to an idea of absence of contradictions, to which ‘coherence’ adds a positive sense of creation of synergies.54 There are two fundamental reasons behind the permanent quest for coherence in the external aspect of the European project. The first one is the complex legal system in which EU actors implement the external policies of the Union. We may call this the internal factor. The second one is the fact that the Union considers the coherence of its foreign policy as a conditio sine qua non to its effectiveness on the international panorama. This constitutes the external factor. The EU often refers to its wide toolbox for responding to international concerns.55 In fact, the tools of the Union correspond to many policies and activities, which are implemented under different policy areas (e.g. the humanitarian aid policy and the development cooperation policy) and under different instruments (e.g. the Instrument for Humanitarian Aid and the Development Cooperation Instrument). Furthermore, depending on the policy area and instrument used, the role of EU actors differs. For instance, the Commission does not play the same role in the common commercial policy as in the CFSP. Moreover, there is no hierarchy between policy fields (e.g. CFSP and humanitarian aid policy), actors (e.g. the Commission and the Council), instruments (e.g. European Development Fund and the Instrument for Humanitarian Aid) and policy objectives (e.g. human rights and international security). In addition, the law of EU external relations does not offer a clear-cut rule regarding the choice of the right policy area to tackle international concerns. In particular areas that are closely linked on the ground, such as the CFSP–development cooperation nexus, the choice of the

53 Note that the analysis of the quest for coherence in EU external relations presented in this chapter focuses on the horizontal perspective of coherence (between the different policies of the Union), as opposed to the vertical perspective (between the policies of the Union and those of its Member States). 54 See, for example, C Hillion, ‘Tous pour un, un pour tous! Coherence in the External Relations of the European Union’ in M Cremona (ed.), Developments in EU External Relations Law (OUP 2008) 14; S Duke, ‘Consistency, Coherence and European Union External Action: The Path to Lisbon and Beyond’ in P Koutrakos (ed.), European Foreign Policy: Legal and Political Perspectives (Edward Elgar Publishing 2011) 17–18. 55 A great example can be found in the Council Conclusions on the EU’s Comprehensive Approach (9644/14), 2.

288 Research handbook on the EU’s common foreign and security policy legal basis is a source of interinstitutional conflict.56 The dividing line between the activities that should fall under express external policy fields of the Union and those that should be conducted as part of the external dimension of EU internal policies is not clear either.57 The multiplicity of policy areas and instruments, where specific policies and activities are implemented, and where actors play different roles, generates legal complexity in the Union’s external action. This is why, while the idea of the wide toolbox is attractive and makes sense, it often hides the fact that organizing the different tools is no easy task. By ensuring coherence between the different policies used to address a particular international concern, it is assumed that the Union shows that it is able to overcome the challenges of its complex system for external relations. But coherence would not be so important in EU external relations if the Union did not consider it a conditio sine qua non to its effectiveness as an international actor: ‘[t]he EU is stronger, more coherent, more visible and more effective in its external relations when all EU institutions and the Member States work together on the basis of a common strategic analysis and vision.’58 The link between the concepts of coherence and effectiveness of the Union as an international actor can be found in the Treaties and case law of the Court of Justice.59 Often this link points to the fact that internal coordination leads to resources being spent in a reasonable manner and, thus, to a greater impact of the Union’s action. This is, for instance, the case for Article 210(1) TFEU, which establishes that the EU and its Member States will coordinate their policies on development cooperation ‘to promote the complementarity and efficiency of their action’. In other cases, the coherence–effectiveness link finds its justification in the idea of the EU’s actorness. The assumption is that the Union needs to act in a coherent manner to show its identity as an international player, which is indispensable for it to be ultimately effective as regards the objectives it pursues at the international level.60 Being visible is obviously not enough to be an effective international actor. But by adhering to its founding principles, regardless of the policy area or instrument used, the EU assumes that it can show not only its existence as an international player, but also 56

Case C-91/05 Commission v Council (‘ECOWAS’ case) ECLI:EU:C:2008:288 stands out as the seminal example of inter-institutional conflict regarding the correct choice of the legal basis in the CFSP–development cooperation policy interface before the entry into force of the Lisbon Treaty. A similar conflict in the post-Lisbon scenario can be found in Case C-658/11 Parliament v Council (‘Mauritius’ case) ECLI:EU:C:2014:2025, para 60. 57 For instance, Operation EU NAVFOR Sophia, the EU military response to human smuggling and trafficking in the Southern Central Mediterranean, was established under a CFSP legal basis only. However, the additional legal basis of the Area of Freedom, Security and Justice would have been desirable. See Council Decision (CFSP) 2015/778 of 15 May 2015 and Article 67 TFEU. 58 ‘The EU’s comprehensive approach to external conflict and crises’ (n 31) 3. 59 See Articles 24(3) para 2 and 32 para 1 TEU, in the CFSP context. See also Case C-266/03 Commission v Luxembourg ECLI:EU:C:2005:341, para 60 and Case C-433/03 Commission v Germany ECLI:EU:C:2005:462, para 66. 60 In fact, in the pre-Lisbon legal framework, ascertaining the EU’s identity was one of the objectives of the CFSP. Currently, it is not an explicit external objective but it is mentioned in the Preamble of the TEU as one of the functions of the CFSP.

The CFSP–humanitarian aid nexus 289 its identity as an actor that is founded on certain values and principles, and that it is committed to upholding them and promoting them in its external action.61 Perhaps worried about the latest developments in the EU (including the response to the refugee crisis) the Global Strategy for the European Union’s Foreign and Security Policy (2016) recalls: ‘[l]iving up consistently to our values internally will determine our external credibility and influence’.62 The quest for coherence is, thus, not only linked to the way in which the Union deals with its complex system for EU external relations internally. It also has an external dimension as it is perceived as having a direct impact on the EU’s international actorness and, ultimately, its effectiveness on the ground. 5.1 The Treaty Framework The most important Treaty provisions governing the relationship between the CFSP and the humanitarian aid policy can be said to be Article 40 TEU, on the procedural side; Article 21 TEU, on the substantive side; and Articles 18 and 27 TEU, on the institutional side. These provisions are either brand new or have been modified significantly after the entry into force of the Lisbon Treaty. All of them are guided by the Union’s quest for coherence in EU external relations.63 The explicit references to coherence in the Treaties have also been reinforced since the Treaty of Lisbon came into force. The location of coherence under Article 7 TFEU indicates that it is a principle of general application to the Union. Coherence can also be found in Article 21(3) TEU, on general provisions on the EU external action.64 Since the entry into force of the Lisbon Treaty, these two provisions are within the jurisdiction of the Court of Justice. As regards the procedural dimension of the relationship between the CFSP and humanitarian aid policy, the Treaties establish a non-affectation clause between CFSP and non-CFSP policy areas.65 The choice of the legal basis protects the procedures applicable to the implementation of CFSP and non-CFSP policy fields as well as the powers of the institutions within these procedures. This means that, unlike before the entry into force of the Lisbon Treaty, the CFSP and the humanitarian aid policy coexist in the Union’s external action in a non-prioritized manner. When the EC and the EU constituted separate legal orders, the focus was on protecting the scope of Community competences from the Union. If a legal act could have been adopted on the basis of EC 61

Articles 2, 3 and 21 TEU. For Marangoni and Raube, ‘coherence makes the EU’s commitment to comprehensive and global objectives credible’. AC Marangoni and K Raube, ‘Virtue or Vice? The Coherence of the EU’s External Policies’ (2014) 36(5) Journal of European Integration 478. 62 ‘Shared Vision, Common Action: A Strong Europe: A Global Strategy for the European Union’s Foreign and Security Policy’ (European External Action Service 2016) 15. 63 According to Cremona, coherence ‘finds its expression in a number of legal provisions and principles’; it ‘operates to bring together – to structure – these fundamental legal principles’. M Cremona, ‘Coherence in European Union Foreign Relations Law’ in P Koutrakos (ed.), European Foreign Policy: Legal and Political Perspectives (Edward Elgar Publishing 2011) 59. 64 See these Treaty provisions in note 50. 65 Article 40 TEU.

290 Research handbook on the EU’s common foreign and security policy competences, an EU legal basis was not acceptable.66 The abolition of the pillar structure of the Lisbon Treaty has eliminated the previous imbalance and led to a situation where the choice of the legal basis essentially protects the powers of the institutions, rather than the substantive scope of competences. On the substantive side, Article 21 TEU provides all political actors involved in the development of EU external relations with a single set of objectives explaining what the Union aims towards in its external action.67 Although it obviously does not rule out the possibility of policy incoherencies, the single set of objectives can bring about a certain degree of coherence between policies and activities, enabling the Union to show a single identity on the international stage, regardless of the policy area or the instrument deployed.68 In fact, Article 21 TEU can be perceived as a commitment to the founding principles of the Union (‘which have inspired its own creation’). These are to be observed, as regards what the Union upholds, as well as what it promotes, in the development of its external relations (‘which it seeks to advance in the wider world’). Both the CFSP and the humanitarian aid policy are bound by the same set of objectives, which include the safeguarding of the Union’s security, the preservation of peace, the prevention of conflicts and the strengthening of international security.69 Article 214 TFEU recalls that the humanitarian aid policy is guided by these objectives, by explicitly indicating so and by purposely avoiding any reference to the principle of independence of humanitarian aid. This is obviously problematic from the perspective of the independence of EU humanitarian aid as the objectives of the latter are, in principle, apolitical. As expressed by Christophe Fournier, former International President of MSF: ‘I want to reassure you that the MSF is neither pacifist nor antimilitary. That may sound strange for an organization that was awarded the Nobel Peace Prize a decade ago, but we are not pro-peace. We do not stand in judgement of either your objectives or those of your enemies.’70 Lastly, on the institutional side, the Treaties have entrusted the HRVP with important responsibilities regarding the Union’s quest for coherence in external action.71 Through her many roles, the HRVP (and the EEAS as her assisting body) should ensure coherence between CFSP and non-CFSP policies. The HRVP is mandated to do so by preparing proposals to the development of the CFSP, chairing the FAC, proposing and 66

‘The Union cannot have recourse to a legal basis falling within the CFSP in order to adopt provision which also fall within a competence conferred by the TEC on the Community’. ‘ECOWAS’ case (n 56) para 77. Ex-Article 47 TEC established the primacy of the acquis communautaire over EU competences. 67 The single set of EU external objectives is also enshrined in Article 3(5) TEU. 68 In the ‘Tanzania Agreement’ case, the CJEU referred to the single set of objectives (Article 21(2) TEU) and to the notion of coherence in the external action (Article 21(3) TEU) as justifying why compliance with the rule of law and human rights, as well as respect for human dignity, is required of all EU policies and activities. Case C-263/14 Parliament v Commission (‘Tanzania Agreement’ case) ECLI:EU:C:2016:435, para 47. 69 Article 21(2)(a) and (c) TEU. 70 See note 48. 71 Article 21(3) para 2 TEU. The role of the European Council in fostering coherence across policy areas by identifying the strategic interests and objectives of the Union deserves a mention too (Article 22(1) TEU).

The CFSP–humanitarian aid nexus 291 having control over the EU Special Representatives (EUSR),72 and participating in the College of Commissioners as Vice-President of the Commission. The HRVP chairs the CGEA, which has been relaunched after under the Presidency of Junker.73 Two visible examples of the cooperation between the HRVP and the Commissioner for Humanitarian Aid are the presentation of joint initiatives and the publication of joint press releases on behalf of the HRVP and the Commissioner.74 The HRVP is also entrusted with the responsibility for ensuring the complementarity of CFSP and humanitarian aid action by controlling the EEAS, both in Brussels (headquarters) and on the ground (Union delegations).75 The fact that Union delegations are now an integral part of the EEAS has great potential from the perspective of the coordination of CFSP and humanitarian aid measures concerning particular third states. Moreover, the creation of the EEAS has added a new impetus to the cooperation between the CSDP crisis management structures (which are now part of the EEAS) and the Commission’s units dealing with crisis management within DG ECHO. By way of example, DG ECHO takes part in the EEAS Crisis Platform, which meets on an ad hoc basis and brings together the EEAS crisis response and management structures (e.g. CMPD and CPCC), the EEAS and the Commission’s relevant geographical desks and the EU Military Committee. Another example is the involvement of DG ECHO in the planning of CSDP missions and operations, which, according to the Commission, has had an impact in their mandates. The Commission mentions the example of EUTM Mali, which trained the Malian military in the notions of international humanitarian law as a result of the input of DG ECHO.76 5.2 The EU’s Comprehensive Approach Driven by the single set of objectives and the right institutional set-up, strategic policy documents covering the different policies and activities of the Union in a geographic or thematic context have become commonplace in the past few years. Be it through Council conclusions or joint communications of the Commission and the HRVP, strategic policy documents in the field of external relations can be linked to the HRVP and the EEAS.77 As already explained in this chapter, these soft law documents, often labelled ‘comprehensive approaches’, include considerations regarding the CFSP and 72

Article 33 TEU. See Section 2.1 and note 22. For an in-depth analysis of the role of the CGEA between 2014 and 2015, see S Blockmans and S Russack, ‘The Commissioner’s Group on External Action – Key Political Facilitator’ (2015) CEPS Special Report 125. 74 See, for instance: Commission, ‘Elements for an EU regional strategy for Syria and Iraq as well as the Da’esh threat’ JOIN (2015) 2 final and the Statement by HRVP Federica Mogherini and Commissioner Christos Stylianides on the situation in Syria (3 August 2016). 75 Article 221(2) TFEU. 76 See the document ‘Civil-military relations in humanitarian crises: Why do we invest in civil-military relations?’ published on DG ECHO’s website, available at accessed 2 July 2017. 77 ‘The EU’s comprehensive approach to external conflict and crises’ (n 31) refers to the existence of a new institutional framework, whereby the EU has ‘the increased potential and the ambition … to make its external action more consistent, more effective and more strategic’. 73

292 Research handbook on the EU’s common foreign and security policy the humanitarian aid policy.78 They put the independence of EU humanitarian aid under pressure. Soon after the idea of the EU’s comprehensive approach came to light, Voice adopted a resolution expressing the concerns of NGOs regarding this development: ‘[l]inking humanitarian aid to political goals through an EU comprehensive approach is an issue of concern to the humanitarian community, particularly in complex crises, as it will make it more difficult for us to operate and to achieve our humanitarian mission’.79 As strategic policy documents, comprehensive approaches are directed at advancing coherence in EU external relations. They should inform the policies and activities falling within their geographic or thematic scope, and thus ensure coherence at the level of individual measures. Since they do not require a legal basis, they can bridge the CFSP and non-CFSP divide, providing separate fields of EU action with a common sense of direction.80 The importance of common strategic documents in the field of EU external relations should not be underestimated. After all, the Court of Justice relies on this kind of document to define the scope of EU external policy areas. Perhaps the most relevant example is the extent to which the CJEU referred to the European Consensus on Development (2006)81 to stress the existence of an agreement between the EU institutions and the Member States over the broad scope of the development cooperation policy. We may also note that, at a more abstract level, the narrative of the ‘EU’s comprehensive approach’, which is not an EU invention,82 seems to have served the HRVP and the EEAS to turn the wide toolbox into a distinctive feature of the Union as an international actor. The EU tells the world that it is in a unique position to present integrated responses to international matters:83 The European Union and its Member States can bring to the international stage the unique ability to combine, in a coherent and consistent manner, policies and tools ranging from diplomacy, security and defence to finance, trade, development and human rights, as well as 78

See Sections 3 and 4. ‘Humanitarian aid and the EU comprehensive approach: recommendations’ (2013) Voice General Assembly Resolution. Note that Voice is a network representing 85 NGOs acting in humanitarian aid worldwide. 80 ‘A Union without a clear idea of what it is trying to do and where it is going will remain incoherent.’ Duke (n 54) 19. 81 See the European Consensus on Development (2006/C 46/01) and, by way of example, Case C-377/12, Commission v Council (‘Philippines II Case’) para 19. Note that the Consensus on Development of 2006 has been replaced by The new European Consensus on Development ‘Our world, our dignity, our future’, 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 (2017/C 210/01). 82 According to Drent: ‘Nowadays, most national governments and international organisations dealing with security challenges have at least a reference to “comprehensiveness” in their crisis management operations in their policy documents’, M Drent, “The EU’s Comprehensive Approach to Security: A Culture of Co-ordination?” (2011) LXIV-2 Studia Diplomatica. Furness argues that, when it comes to fragile states, the EU is not ‘an intellectual leader’ but rather an importer of international approaches that adds to them a ‘European twist’, M Furness, ‘Let’s Get Comprehensive: European Union Engagement in Fragile and Conflict-Affected Countries’ (2014) 5 DIE 7. 83 Council Conclusions on The EU’s Comprehensive Approach (9644/14), 2. 79

The CFSP–humanitarian aid nexus 293 justice and migration. This contributes greatly to the Union’s ability to play a positive and transformative role in its external relations and as a global actor.

According to Linda Barry,84 the international security environment of the 21st century, dominated by the rise of transnational security threats, has allowed the EU to ‘enhance its added value as a global security actor’. In her view, ‘the uniquely broad range of instruments in its toolbox compared with other multinational security organisations’ has placed the EU in a privileged position to operationalize the comprehensive approach. 5.3 A Critical Approach The Lisbon Treaty brought about a set of reforms that ease the way to strengthening the nexuses between the humanitarian aid policy and other EU policy areas such as the CFSP. These reforms, which are guided by the long-standing quest for coherence of the Union, increase the threats to the independence of the humanitarian aid policy. This area of EU action is now guided by a single set of objectives that includes political and military objectives. Rules on the choice of the legal basis are not designed to protect the substantive scope of EU humanitarian aid, but rather the procedures for its development and implementation, as well as the powers of EU institutions within these procedures. Furthermore, the humanitarian aid policy falls under the narrative of the EU’s comprehensive approach, together with other policy areas such as the CFSP. If the Union intends to respect the humanitarian principles to which it is bound, it ought to strike a balance between the promotion of coherence between EU policies and activities, and the need to preserve the autonomy of its humanitarian aid.85 Finding that balance is no easy task as the quest for coherence in the external action and the narrative of the comprehensive approach are closely linked to the Union’s international visibility and political actorness. These notions are clearly at odds with the nature of the humanitarian aid policy as the latter needs to be perceived as apolitical and to remain to a certain extent invisible in order to be effective. The quest for coherence in the context of the CFSP–humanitarian aid nexus should, therefore, be fostered by focusing on efforts that, while promoting the complementarity between CFSP and humanitarian aid measures, do not have a clear external projection. By way of example, cooperation between DG ECHO and the EEAS in the planning of CSDP missions and operations can contribute to the complementarity of CFSP and humanitarian aid action. Joint statements by the HRVP (on CFSP matters) and the Commissioner for Humanitarian Aid can fulfil the same purpose. While both can promote the coherence of the Union’s external action, the external projection of joint statements has a negative impact on the perception of humanitarian aid as independent. This is why cooperation between DG ECHO and the EEAS’ crisis management structures is better suited to strike the balance that this paragraph refers to. 84 L Barry, ‘European Security in the 21st Century: The EU’s Comprehensive Approach’ (2012) IIEA European Security and Defence Series 1–2. In a similar direction, Furness claims that the comprehensive approach is ‘an expression of the EU’s long-held ambition to develop whole-of-EU approaches to complex external relations challenges’, Furness (n 82) 10. 85 On the tension between the Union’s quest for coherence and the independence of EU humanitarian aid, see Orbie, Van Elsuwege and Bossuyt (n 52).

294 Research handbook on the EU’s common foreign and security policy By the same token, the narrative of the EU’s comprehensive approach, which can be powerful to strengthen the Union’s international actorness, is particularly dangerous for the independence of EU humanitarian aid and, ultimately, its effectiveness. The same elements that make this narrative powerful – that the Union can respond to complex international concerns with multiple tools – impact negatively on the perception of humanitarian aid as independent. The latter appears as one of the many ‘tools’ of the Union’s ‘comprehensive’ response. From this perspective, the special character of the humanitarian aid policy stands out as a challenge for the operationalization of the EU’s comprehensive approach to crisis management. The single set of objectives enshrined in Article 21 TEU, which has great potential from the perspective of promoting coherence by ensuring that all policies and activities are guided by the same objectives, is also at odds with the independence of EU humanitarian aid. A better balance could have been found in Article 214 TFEU between the quest for coherence and the independence of humanitarian aid. It would probably have sufficed not to include the reference to the principles and objectives of external action in paragraph 1 of this provision,86 and to enshrine the principle of independence of humanitarian aid in paragraph 2.

6. CONCLUDING REMARKS This chapter has analysed the interconnections between the CFSP and the humanitarian aid policy. The boundaries between the tasks and objectives of these two policy areas are not always clear. Moreover, the coexistence of CFSP and humanitarian aid measures in crisis and post-crisis situations outside the Union’s borders, together with the mainstreaming of institution-building in EU external action, have led to the understanding that CFSP and humanitarian aid interventions are part of ‘the EU response’ and should, therefore, be guided by common policy strategies. The tension between the CFSP–humanitarian aid nexus and the independence of EU humanitarian aid has also been considered, as well as the risks of this nexus for the effectiveness of humanitarian aid. For instance, NGOs may decide not to participate in the implementation of humanitarian operations if they take the view that humanitarian aid is part of the Union’s overall approach to the challenges faced in a particular country or region. We should keep in mind that NGOs, as the main implementers of EU humanitarian aid, are essential to the success of the Union’s humanitarian aid policy. This risk is exacerbated by the fact that, by putting the state at the centre of its attention, the EU often takes sides in the internal politics of third states. As shown by the example of the Union’s approach to Somalia in past few years, the EU is an actor whose intervention in third states can hardly be considered neutral. This chapter has also examined a set of legal innovations introduced by the Lisbon Treaty, which are motivated by the quest for coherence in EU foreign policy. These reforms have great potential for strengthening policy nexuses, such as the one between 86 The first sentence of Article 214(1) TFEU establishes that ‘the Union’s operations in the field of humanitarian aid shall be conducted within the framework of the principles and objectives of the external action of the Union’.

The CFSP–humanitarian aid nexus 295 CFSP and humanitarian aid. The reasons behind the importance that is attributed to the Union’s quest for coherence have also been explained. By ensuring coherence between different policies and activities, it is assumed that the Union shows that it is able to overcome the challenges of its complex system for external relations. This is considered indispensable for it to be effective as regards its external objectives. However, this chapter has also argued that the EU ought to strike a balance between promoting coherence between different policies and activities and securing the independence of humanitarian aid. In most cases, this balance could be found by seeking to advance policy complementarity by prioritizing efforts that do not have a clear external projection. For example, cooperation between DG ECHO and the EEAS in the planning of CSDP missions and operations is better suited than joint statements by the HRVP (on CFSP matters) and the Commissioner for Humanitarian Aid to strike that balance. Since joint statements have a clear external projection, they raise the perception that humanitarian aid is connected to CFSP objectives. In other instances, it seems as though the quest for coherence has prevailed over the protection of the independence of EU humanitarian aid. The lack of Treaty recognition of the principle of independence of humanitarian aid needs to be reviewed. On a final note, we ought to bear in mind that the existence of the CFSP– humanitarian aid nexus and the uneasiness of humanitarian workers as regards the comprehensive approach to crisis management can be considered a sort of recognition of the role that the CSDP has acquired in crisis situations affecting some of the most vulnerable states in the world.

14. The nexus between CFSP/CSDP and the Area of Freedom, Security and Justice Panos Koutrakos

1. INTRODUCTION The Area of Freedom, Security and Justice (AFSJ) has a set of objectives that is startlingly broad. It includes the following: the absence of internal border controls for persons; the development of a common policy on asylum, immigration and external border controls; a high level of security through measures to prevent and combat crime, racism and xenophobia; increased cooperation between police, judicial and other competent authorities; the mutual recognition of judgments in criminal matters and, if necessary, the approximation of criminal laws; and the mutual recognition of judicial and extrajudicial decisions in civil matters.1 It is not, however, only this broad sweep that makes the AFSJ well suited for interacting with the Common Foreign and Security Policy (CFSP) and the Common Security and Defence Policy (CSDP). It is also the security focus of these policies. Whilst focusing on EU citizens,2 AFSJ owes its genesis and development to the need to ensure the internal security of the EU.3 Given the increasing multiplication of security challenges and the porous nature of physical borders, the development of the external aspects of AFSJ was hardly surprising.4 And given the broad scope of CFSP (it covers ‘all areas of foreign policy and all questions relating to the Union’s security’5), it was only a matter of time before the linkages between it and AFSJ would emerge. The linkages between the two policy areas are more explicit in the revamped framework that has governed the EU’s external action since the entry into force of the Treaty of Lisbon. The objective of ‘contribut[ing] to the protection of its citizens’ is viewed in Article 3(5) TEU as part of the Union’s aims in its relations with the wider world. More specifically, primary law refers to safeguarding, amongst other things, the Union’s security, as an objective not only of the EU’s external action (Article 21(2) TEU), but also of the external aspects of its other policies (Article 24(3) TEU). 1 Art. 67(2)–(4) TFEU. The AFSJ is governed by Title V TFEU, and covers immigration (Art. 77 TFEU), asylum (Art. 78 TFEU), judicial cooperation in civil (Art. 81 TFEU) and criminal matters (Arts 82–6 TFEU), and police cooperation (Arts 87–9 TFEU). 2 Art. 3(2) TEU provides that the EU ‘shall offer its citizens an area of freedom, security and justice without internal frontiers’ (emphasis added). 3 See, for instance, ‘A Strategy on the External Dimension of the Area of Freedom, Security and Justice’ COM(2005) 491 fin, adopted by the Council in December 2005. 4 See J Monar, ‘The External Dimension of the EU’s Area of Freedom, Security and Justice: Progress, Potential and Limitations after the Treaty of Lisbon’ (2012) 1 SIEPS 13ff. 5 Art. 24(1) TEU.

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The nexus between CFSP/CSDP and the AFSJ 297 On the other hand, CFSP and AFSJ are ill-suited in legal terms. The former is covered by a sui generis competence of the EU (Article 2(4) TFEU) and ‘is subject to specific rules and procedures’ (Article 24(1) TEU), in the context of which unanimity prevails, the role of the European Parliament is marginal at best, and the jurisdiction of the Court of Justice of the European Union is limited.6 As for the AFSJ, it is covered by shared competence (Article 4(2)(j) TFEU), the ordinary legislative procedure applies, the Parliament acts as co-legislator, and the conduct of the policy is subject to the jurisdiction of the Court of Justice. In light of the above, the CFSP–AFSJ nexus provides a good snapshot of the complexities that characterize the Union’s effort to bring together different strands of its external action in order to become a relevant actor on the international scene. This chapter will explore these complexities from three different angles. The first is about policy: it will focus on the increasingly prominent linkages that emerge from the current conception of CFSP/CSDP and AFSJ by the Union’s decision-makers. The second angle is about practice: it will explore how the nexus between the two policies works in CFSP practice, by focusing on its most direct and prominent illustration, that is Operation Sophia in the Southern Central Mediterranean. The third angle is about the approach of the Court of Justice to the CFSP–AFSJ nexus and its implications for both the Union’s institutions and the place of CFSP in the Union’s constitutional order.

2. THE POLICY ANGLE The external dimension of AFSJ is, ostensibly, about the development of relationships between the EU and third countries and organizations in order to achieve the objectives relating to the Union’s internal security. This dimension was acknowledged as early as in 1999 by the European Council7 and has emerged clearly over the years on the basis of various policy documents.8 In fact, there is a plethora of policy documents in the area, and they are by no means immune to the empty rhetoric, triteness and hyperbole that one is accustomed to find in this type of work produced by the EU’s bureaucracies 6 Art. 24(2) TEU and Art. 275 TFEU. On this issue, see Chapter 4 in this volume. On the procedural aspects of CFSP/CSDP, see Chapter 2. 7 Tampere European Council, Presidency Conclusions on the Area of Freedom, Security, and Justice (15–16 October 1999). 8 For the foundational documents, see The Hague Programme: Strengthening Freedom, Security and Justice in the European Union [2005] OJ C53/01, and The Stockholm Programme – An open and secure Europe serving and protecting the citizens (Brussels, 2 December 2009) adopted by the European Council (11–12 December 2009). See the analysis in T Balzacq (ed.), The External Dimension of EU Justice and Home Affairs – Governance, Neighbours, Security (Palgrave Macmillan 2009); M Cremona, J Monar and S Poli (eds), The External Dimensions of the European Union’s Area of Freedom, Security and Justice (PIE Peter Lang 2011); C Flaesch-Mougin and LS Rossi (eds), La dimension extérieure de l’espace de liberté, de sécurité et de justice de l’Union (Bruylant 2012); and R Wessel and C Matera, ‘The External Dimension of the EU’s Area of Freedom, Security and Security’ in C Eckes and T Konstadinides (eds), Crime within the Area of Freedom, Security and Justice: A European Public Order (CUP 2011) 272.

298 Research handbook on the EU’s common foreign and security policy and politicians. Taken together, nonetheless, these documents convey the prevailing understanding of the institutions about the increasing relevance of CFSP and AFSJ to each other. The main priorities of the external dimension of AFSJ were defined early on as migration policy, the fight against organized crime and terrorism, the fight against crimes such as money laundering, corruption and trafficking in human beings, the fight against drug trafficking, and the development and consolidation of the rule of law in countries on the path to democracy.9 These issues also featured prominently in the main strategic documents on CFSP. The 2003 European Security Strategy, for instance, included organized crime in the Union’s major challenges, and referred specifically to cross-border trafficking in drugs, women and illegal migrants, as well as their potential link to terrorism.10 In fact, the nexus between AFSJ and CFSP has been shaped by three interlinked aspects of the Union’s external relations in general and its foreign and security policy in particular. The first is the wide terms in which the EU has construed the notion of security. This characteristic has been prevalent in the efforts of the Union to articulate its international role. The tone was set in the 2003 European Security Strategy, which referred to terrorism, proliferation of weapons of mass destruction, regional conflicts, state failure, and organized crime as the main global challenges for the EU.11 The policies covered by the AFSJ pertained to all of them, and their role was affirmed in a 2008 review of the European Security Strategy,12 where, for instance, organized crime assumed central importance, alongside terrorism. This approach is also illustrated by the 2016 Global Strategy, which stresses, in the context of CSDP, operations and missions aiming to fight cross-border crime and disrupt smuggling networks,13 a point that will be explored further in the following section. The second characteristic, following from the above, pertains to the Union’s armoury to tackle global security challenges, and is about the wide range of instruments upon which the EU is prepared to rely. As the Global Strategy puts it, ‘[a] stronger Union requires investing in all dimensions of foreign policy, from research and climate to infrastructure and mobility, from trade and sanctions to diplomacy and development’.14 To that effect, it promotes an approach which would be ‘integrated’, ‘multi-dimensional … through the use of all available policies and instruments aimed at conflict prevention, management and resolution’, ‘multi-phased’, that is involving all stages of the conflict cycle, and ‘multi-level’, covering the local, national, regional and global levels.15 There are, in other words, inherent linkages between, amongst other things, 9

Santa Marie de Feira European Council, 19–20 June 2000, Presidency Conclusions. ‘A Secure Europe in a Better World – European Security Strategy’ (Brussels, 12 December 2003) 4–5. 11 ibid, 3–5. 12 ‘Report on the Implementation of the European Security Strategy – Providing Security in a Changing World’ (S407/08, Brussels, 11 December 2008). 13 ‘Shared Vision, Common Action: A Stronger Europe – A Global Strategy for the European Union’s Foreign and Security Policy’ (European External Action Service 2016). 14 ibid, 44. 15 ibid, 28–9. 10

The nexus between CFSP/CSDP and the AFSJ 299 CFSP/CSDP and AFSJ. This is articulated clearly in the 2017 implementation report on the Global Strategy, which states the following: Security and defence are essential components for a credible EU role in the world. But the full strength and value of such instruments are fulfilled only when they are deployed alongside other external policies – such as enlargement, development and trade – or policies with external aspects, including on migration, energy, climate, environment, culture and more. This unique mix of actions is the European way to foreign and security policy.16

The third characteristic of the Union’s international role is the osmotic relationship between internal and external policies. Again, this is a not a new development. The European Security Strategy referred to the internal and external aspects of security as ‘indissolubly linked’17 and the 2008 Report on the Implementation of the European Security Strategy pointed out the ‘need to improve the way in which we bring together internal and external dimensions’.18 There is greater emphasis on the internal-external linkages in the Global Strategy too, both generally and in relation to CFSP/CSDP in particular.19 The above three features of the Union’s security policy (broad definition, wide range of EU instruments, internal-external linkages) have shaped the nexus between CFSP/ CSDP and AFSJ over the years. In fact, they have gone farther: so central to the Union’s external relations have they become that they are now viewed as emblematic of ‘the European way to foreign and security policy’.20 At a high policy level, we see the increasingly explicit articulation of the nexus between these policies and CFSP/CSDP. The Global Strategy, for instance, states that ‘[w]e will also make different external policies and instruments migration-sensitive – from diplomacy and CSDP to development and climate – and ensure their coherence with internal ones regarding border management, homeland security, asylum, employment, culture and education’.21 This point is also stressed in CFSP/CSDP-specific documents. In relation to one of the strategic priorities of the Global Strategy, that is protecting the Union and its citizens, the Council has recently elaborated on the significance of the nexus between AFSJ and CFSP/CSDP: 16 ‘From Shared Vision to Common Action: Implementing the EU Global Strategy – Year 1’ (European External Action Service 2017) 12. 17 ‘A Secure Europe in a Better World’ (n 10) 2. 18 ‘Report on the Implementation of the European Security Strategy’ (n 12) 4. 19 For instance: ‘through a coherent use of internal and external policies, the EU must counter the spill-over of insecurity that may stem from … conflicts [where no peace agreements are reached], ranging from trafficking and smuggling to terrorism’: ‘Shared Vision, Common Action’ (n 13) 30. 20 ‘Shared Vision, Common Action’ (n 13) 12. The same rhetoric was also apparent in previous strategic documents: the ESS had pointed out that the EU was ‘particularly well equipped to respond to such multi-faceted situations’ (7), and the 2008 Report referred to ‘a distinctive European approach to foreign and security policy’ (2). This rhetoric is not confined to strategic documents on CFSP: references to a ‘European Security Model’ are made in the 2010 Internal Security Strategy time and again, whereas ‘The European Agenda on Security’ (Communication) COM (2015) 185 fin also refers to the EU’s added value in the area. 21 ‘Shared Vision, Common Action’ (n 13) 50.

300 Research handbook on the EU’s common foreign and security policy Protecting the Union and its citizens covers the contribution that the EU and its Member States can make from a security and defence perspective, notably through CSDP in line with the Treaty, to tackle challenges and threats that have an impact on the security of the Union and its citizens, along the nexus of internal and external security, in cooperation with Freedom, Security and Justice (FSJ) actors. Respecting that CSDP missions and operations are deployed outside the Union, the EU can contribute from a security and defence perspective to strengthening the protection and resilience of its networks and critical infrastructure; the security of its external borders as well as building partners’ capacity to manage their borders; civil protection and disaster response; ensuring stable access to and use of the global commons, including the high seas and space; countering hybrid threats; cyber security; preventing and countering terrorism and radicalisation; combatting people smuggling and trafficking; complementing, within the scope of CSDP, other EU efforts concerning irregular migration flows, in line with the October 2016 European Council Conclusions; promoting compliance with non-proliferation regimes and countering arms trafficking and organised crime. Existing EU policies in these areas should be taken forward in a comprehensive manner.22

To be sure, the overview provided in this section relates to policy documents that, as mentioned above, are high on rhetoric and may not avoid being formulaic or trite in their language. They do, however, illustrate a central point: a fundamental congruence has emerged between CFSP and AFSJ objectives and is shaping the Union’s understanding of its foreign and security policy. In effect, the Treaty of Lisbon reflects this as it defines more broadly the tasks to be carried out by the Union and draws upon the tasks undertaken under the AFSJ, a case in point being Article 43(1) TEU and its reference to the fight against terrorism. This point will be explored further in Section 4 of this chapter. The congruence of objectives between CFSP/CSDP and AFSJ is also reflected by practice. A case in point is provided by the active role of High Representative Mogherini in the negotiation of migration compacts with African states.23 Another example on the CSDP side is security sector reform (SSR), that is the process of transforming a third country’s security system in order to enable it to provide individuals and the state with effective and accountable security consistent with respect for human rights, democracy, the rule of law and the principles of good governance. SSR features prominently as part of the external dimension of AFSJ,24 whilst objectives of the latter are also addressed by a number of the CSDP civilian missions which aim to reform the security sector of the host country in order to tackle, amongst other things, smuggling, trafficking and organized crime.25 22 Council Conclusions on implementing the EU Global Strategy in the area of Security and Defence (14149/16, Brussels, 14 November 2016) 5. 23 See, more generally, for a recent assessment: Commission, ‘Fourth Progress Report on the Partnership Framework with third countries under the European Agenda on Migration’ COM (2017) 350 fin. 24 See recently: ‘Elements for an EU-wide strategic framework to support security sector reform’ JOIN (2016) 31 fin and, previously, ‘A concept for European Community support for security sector reform’ COM (2006) 253 fin. 25 See G Mournier, ‘Civilian Crisis Management and the External Dimension of JHA: Inceptive, Functional and Institutional Similarities’ (2009) 31 Journal of European Integration

The nexus between CFSP/CSDP and the AFSJ 301 The overall approach of such missions illustrates their linkages with the external aspects of AFSJ: it reflects a policy choice to tackle the issues that undermine, directly or potentially, the security of European citizens. The civilian mission in Niger (EUCAP Sahel Niger), for instance, was designed as ‘the intensification of terrorist actions and the consequences of the conflict in Libya have increased the urgency of protecting Union citizens and interests in the region and preventing the extension of those threats to the Union’.26 What we see, therefore, is the gradual anchoring of CSDP missions to AFSJ policies, not only in relation to their objectives, but also in relation to policy choices about where these missions are to be carried out. A considerable proportion of the CSDP civilian missions are launched in Africa, a region which is central to the Union’s AFSJ interests.27 A process, therefore, of interweaving policies and objectives emerges: whilst conceived of in different contexts originally, they develop gradually in an osmotic relationship with each other. This process has shaped the overall character of both the AFSJ and CFSP/CSDP. As far as the former is concerned, it is becoming increasingly difficult to envisage an autonomous, readily defined and legally contained external policy on AFSJ. A look at the 2015 Strategic Guidelines on AFSJ, for instance, suggests an ever greater emphasis on the external aspects of the policy, on the synergies with other policies, and on the ever-present requirement for a comprehensive approach.28 Put differently, the external dimension of AFSJ can only be designed properly and carried out in conjunction with other external policies, including CFSP and CSDP. On the other hand, the increasing interactions with other policies, including AFSJ and development cooperation,29 have had a profound impact on the shape of CFSP and CSDP: they have shifted the policy farther away from the hard end of the security spectrum set out in the Treaties,30 and have underlined its instrumental dimension, as they have rendered it an essential element for achieving the objectives of other

45. For an overview of the civilian missions, see Chapter 5 in this volume. See also the analysis in P Koutrakos, The EU Common Security and Defence Policy (OUP 2013) ch 6. 26 Council Decision 2012/392/CFSP [2012] OJ L187/47, recital 1, last amended by Council Decision 2017/1253 [2017] OJ L179/15. 27 See ‘EU Strategy for Africa: Towards a Euro-African pact to accelerate Africa’s development’ COM (2005) 489 fin. 28 European Council Conclusions, Strategic Guidelines for the area of freedom, security and justice (EUCO 79/4, Brussels, 27 June 2014). 29 See H Merket, The EU and the Security-Development Nexus – Bridging the Legal Divide (Brill/Nijhoff 2016), and Chapter 12 in this volume. 30 Art. 42(1) TEU refers to ‘missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter’, whereas Art. 43(1) TEU defines these tasks by reference to joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilization.

302 Research handbook on the EU’s common foreign and security policy policies.31 Whilst this section suggested that this development has emerged as a matter of policy, the following section will show that it is also prevalent as a matter of practice. At this juncture, suffice it to say that it is not one-dimensional: it is not only the CFSP/CSDP and AFSJ whose direction has changed due to their interactions. The widening of the notion of security has enhanced the interactions between other external policies of the Union and has had implications for their direction too. There is, for instance, a healthy debate about the securitization of development cooperation32 and the increasing emphasis in the EU’s development cooperation on serving objectives related to the Union’s own interests.33

3. THE PRACTICE ANGLE Given the focus of this book, this section will approach the practice of the CFSP–AFSJ nexus from the CFSP point of view. As an overview of the CSDP civilian and military operations is provided elsewhere in this book,34 the aim of this section will be selective, namely to tease out the issues raised by the interactions with AFSJ in practice. The starting point for this exercise will be Operation EUNAVFOR MED Sophia in the Southern Central Mediterranean. There are various reasons for this. From a wider CSDP perspective, the operation consolidates the maritime dimension of the policy as it follows from Operation Atalanta in the Gulf of Aden.35 It also provides a clear example of the nexus between CSDP and AFSJ, both in terms of its objectives as well as its conduct. Finally, it is an ongoing operation that is carried out in the Union’s neighbourhood36 and deals with an issue of profound political significance for the EU and sensitivity for the Member States. The decision to carry out the operation was taken in May 2015 following the growing number of migrants drowning in the Mediterranean in their effort to reach an 31

For an analysis of the CSDP record that supports this argument, see Koutrakos (n 25) chs

5–6. 32

See, amongst others, M Duffield, ‘The Liberal Way of Development and the DevelopmentSecurity Impasse: Exploring the Global Life-Chance Divide’ (2010) 41 Security Dialogue 53; B Hettne, ‘Development and Security: Origins and Future’ (2010) 41 Security Dialogue 31; S Keukeleire and K Raube, ‘The Security-Development Nexus and Securitization in the EU’s Policies Towards Developing Countries’ (2013) 26 Cambridge Review of International Affairs 556; J Orbie and K Del Biondo, ‘The European Union’s “Comprehensive Approach” in Chad: Securitisation and/or Compartmentalisation?’ (2015) 29 Global Society: Journal of Interdisciplinary International Relations 243. 33 This point is made by Broberg in Chapter 12 in this volume. Whilst this emphasis emerges most clearly in The New European Consensus on Development – Our World, Our Dignity, Our Future (Brussels, 7 June 2017), he suggests that it has characterized the EU’s development cooperation policy for some time. 34 See Chapter 6 in this volume on military operations and Chapter 5 on civilian missions. 35 For the legal issues related to Operation Atalanta, see R Gosalbo Bono and S Boelaert, ‘Piracy and the European Union’s Common Security and Defence Policy’ in P Koutrakos and A Skordas (eds), The Law and Practice of Piracy at Sea (Hart Publishing 2014). 36 See Chapter 15 in this volume.

The nexus between CFSP/CSDP and the AFSJ 303 EU Member State (mainly from Libya to Italy). In the first four-and-a half months of 2015 almost 1,800 deaths had been reported, according to the International Organization for Migration.37 The stream of terrible news and pictures from the Mediterranean made the EU institutions react. The European Council, at an extraordinary meeting, expressed its indignation,38 the Commission proposed a revamped system of managing migration flows whilst seeking to avert disasters at sea,39 and the Council decided to carry out EUNAVFOR MED in the context of the EU’s CSDP.40 The operation was launched in June 201541 and its core task is to ‘contribut[e] to the disruption of the business model of human smuggling and trafficking networks in the Southern Central Mediterranean … by undertaking systematic efforts to identify, capture and dispose of vessels and assets used or suspected of being used by smugglers or traffickers’.42 The operation is designed to cover three sequential sets of activities. The first lasted for a few months and was about information-gathering and patrolling on the high seas in order to support the detection and monitoring of migration networks. The second is more substantial and is about boarding, search, seizure and diversion of vessels suspected of being used for human smuggling or trafficking. This was envisaged to take place, first, on the high seas and, subsequently, in the territorial and internal waters of the coastal state. Since September 2015, Operation Sophia has so far only extended to the high seas.43 The third phase will be about ‘all necessary measures against a vessel and related assets, including through disposing of them or rendering them inoperable, which are suspected of being used for human smuggling or trafficking’ in the territory of the coastal state.44 A year after Operation Sophia had been launched, two supporting tasks were added: capacity-building and training of, and information-sharing with, the Libyan coastguard and navy, and contributing to the implementation of the United Nations arms embargo on the high seas off the coast of Libya by information-sharing and implementation.45 The Union started engaging in them in September 2016.46 The training of the Libyan coastguard takes place at sea, in EU Member State training facilities or in Libya, and on board Libyan coastguard and navy patrol boats. The objectives of Operation Sophia could not illustrate the linkages between CFSP/CSDP and AFSJ any more clearly. On the one hand, setting out the policy context within which the operation would be launched, Decision 2015/778 referred 37

(last accessed 2 August 2017). 38 European Council, special meeting, 23 April 2015, Statement, para 2. 39 Commission, ‘A European Agenda for Migration’ COM (2015) 24 fin. 40 Council Decision 2015/778 [2015] OJ L122/31. The operation has been extended until the end of 2018 (Council Dec. 2017/1385 [2017] OJ L194/61). The operation was named Sophia pursuant to Council Dec. 2015/1926 [2015] OJ L281/13. 41 Council Dec. 2015/972 [2015] OJ L157/51. 42 Art. 1(1), Council Decision 2015/778 (n 40). 43 PSC Dec. 2015/1772 [2015] OJ L258/5, enhanced by PSC Dec. 2016/118 [2016] OJ L26/63. 44 Art. 2(2)(c), Council Decision 2015/778 (n 40). 45 Council Dec. 2016/993 [2016] OJ L162/18. 46 PSC Dec. 2016/1635 [2016] OJ L243/11 and PSC Dec. 2016/1637 [2016] OJ L243/14.

304 Research handbook on the EU’s common foreign and security policy prominently to the European Council’s commitment ‘to strengthening the Union’s presence at sea, to preventing illegal migration flows and to reinforcing internal solidarity and responsibility’.47 On the other hand, the operation is viewed as a case study of the CFSP–AFSJ nexus in strategic documents on migration: this was the case not only at the time of its inception,48 but also in the more recent documents.49 In other words, Operation Sophia appears to have emerged as a CSDP military operation with AFSJ aims. The legal acts governing EUNAVFOR MED Sophia stress its anchoring in international law in terms of the design and the conduct of the operation. Both the core task (for instance operating on the high seas) and the supporting tasks (for instance contributing to the implementation of the arms embargo) are linked to resolutions of the United Nations Security Council.50 The conduct of the operation is also framed closely in terms of various international law instruments, including the United Nations Convention on the Law of the Sea.51 It is also on international law grounds that the operation has not been carried out yet in the territorial or internal waters of Libya, given the absence of an authorization to that effect by the United Nations or of Libya’s consent.52 In practical terms, the impact of Operation Sophia has been seriously contested. In terms of its core task, it appears to have had little effect in deterring migrant flows53 as the people smugglers have adjusted their business model. A report by the respected European Union Committee of the House of Lords in the United Kingdom has referred to Operation Sophia as ‘a failed mission’.54 47 Recital 2, Art. 1(1), Council Decision 2015/778 (n 40). It has been argued that the legal basis for the Decision should have included an AFSJ legal basis too: M Estrada-Cañamares, ‘Operation Sophia Before and After UN Security Council Resolution No 2240(2015)’ (2016) European Papers 185, 190. 48 See Commission, ‘A European Agenda for Migration’ (n 39). 49 See ‘Joint Communication on Migration on the Central Mediterranean route – Managing flows, saving lives’ JOIN (2017) 04 fin, and the Malta Declaration by the members of the European Council on the external aspects of migration: addressing the Central Mediterranean route (3 February 2017). 50 See, for instance, UNSCR 2240 (2015) for the former and UNSCR 2292 (2016) for the latter. 51 Along with the 2000 Protocols against the Smuggling of Migrants by Land, Sea and Air, and to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, the 1974 International Convention for the Safety of Life at Sea, the 1979 International Convention on Maritime Search and Rescue (SAR), the 1976 Convention for the Protection of the Marine Environment and Coastal Region of the Mediterranean (Barcelona Convention), and the 1951 Geneva Convention relating to the Status of Refugees. 52 When the decision to carry out Operation Sophia was taken, a spokesman for the Libyan Government characterized it as ‘not … humane’ and stated that the ‘government will not accept any violation of Libyan sovereignty’ and ‘will not accept the plan unless it’s co-ordinated’ with his government (last accessed 3 August 2017). 53 The number of migrants arriving in Italy by sea in the first half of 2017 was 17% higher than over the same period in 2016: The Economist, 22 July 2017, 29. 54 House of Lords European Union Committee, 2nd Report of Session 2017–19, Operation Sophia: a failed mission (12 July 2017).

The nexus between CFSP/CSDP and the AFSJ 305 There are two main considerations in assessing the role of the operation. The first is the policy context within which it is designed and carried out. The area covered by the operation vessels is used for migrants from a range of source and transit African countries, including Gambia, Chad, Niger and Mali.55 The conditions that have given rise to this migration movement and its size have created a policy challenge which the limited resources and narrow mandate of the operation are manifestly unsuited to tackle.56 The deep roots of the problem have been acknowledged by the High Representative and the Commission themselves: ‘[a]lthough migration has always taken place, this appears to be a structural movement from Sub-Saharan Africa and there is no indication these trends could change until the economic and political/security situation in the countries of origin improves’.57 This is not the only issue that renders the situation in Libya so difficult, given security concerns about the country becoming a central hub for terrorists, and energy security concerns considering its oil and gas resources. Viewed from this angle, Operation Sophia appears to be making, at best, quite a small contribution to addressing a big and complex problem, the causes of which are both long standing and multifarious. In doing so, it is not alone as most other CSDP operations have had similar effects.58 To be sure, as it is but a part of a comprehensive approach, the operation and its effectiveness need to be assessed in the light of the broader contribution of the Union in the area. On that front too, however, we find the pathologies of the EU’s foreign and security policy in evidence. For instance, the civil war and the ensuing instability in Libya have been an inherent cause of the problem that the operation has been seeking to tackle as well as an inherent constraint on the impact of the EU’s intervention in the area.59 In July 2017 the French President Emmanuel Macron brokered a deal between the Head of the UN-recognized Libyan government and the leader of the so-called Libyan National Army, which controls large tracts of Libyan territory. At the same time, the Italian government discussed with the UN-recognized government a plan for an operation in Libyan waters by the Italian navy, aiming to help intercept migrant ships. The absence of an EU role in these initiatives was striking. Again, this is entirely consistent with the overall pattern of the CFSP in the area as the Member States act at will on issues that matter to them, and the EU follows by relying upon limited resources in order to pursue a narrow mandate. It is recalled, for instance, that the 2011 military operation against Libya was carried out by a coalition of states, led by the United Kingdom and France, whilst the EU was absent. The second issue raised by the operation is about protection of fundamental human rights. There are grave concerns about the extent to which the Libyan coastguard and 55

J Politi, ‘Migration opens the door to Italy’s populists’, Financial Times, 1 August 2017. The Operation currently has access to six ships, three helicopters, and four aircraft: (last accessed 3 August 2017). 57 ‘Joint Communication on Migration on the Central Mediterranean route – Managing flows, saving lives’ (Brussels, 25 January 2017) JOIN (2017) 04 fin, 4. 58 See Koutrakos (n 25) ch. 5. See also the analysis in Chapter 6 in this volume. 59 See EEAS, Strategic Review on EUBAM Libya, EUNAVFOR MED Op Sophia & EU Liaison and Planning Cell (9202/17, Brussels, 15 May 2017). 56

306 Research handbook on the EU’s common foreign and security policy navy comply with such rights in the exercise of their duties.60 There are also well-documented reports, including by the UN High Commissioner for Refugees, about the treatment of migrants in Libya, according to which there is a high risk of serious human rights violations.61 These issues have been acknowledged by High Representative Mogherini herself.62 As the capacity-building and training of the Libyan coastguard and navy are about enabling them to carry out interceptions and then return migrants to Libyan soil, the question arises as to whether the ultimate protection of fundamental human rights is secondary to the central aim of Operation Sophia, namely to buttress the EU from the current influx of migrants.63 Given the various references to international law in the Council and Political Security Committee’s documents governing the operation, and the legal issues raised above, it is no surprise that law features prominently in the six-monthly reports by the EU Commander.64 This is not just in terms of the mandate of the operation, i.e. the legal conditions that would need to be met for its staff to be able to operate in the Libyan territorial waters. In fact, these documents suggest an acute awareness of the international and human rights issues raised by the conduct of both the mission staff and the Libyan officers trained by them. They also suggest an awareness of the situation in Libya and the legal problems that these raise for the mission staff in terms of the application of the principle of non-refoulement.65 Given the important and open questions that pertain to the everyday conduct of the operation, it is somewhat ironic

60

See UN Support Mission in Libya and UN Human Rights Office of the High Commissioner, ‘Detained and Dehumanised’, Report on human rights abuse against migrants in Libya (13 December 2016) (last accessed 3 August 2017). 61 See UNHCR Position on Returns to Libya – Update I (October 2015): (last accessed 3 August 2017). See also, more recently, (last accessed 17 September 2017). 62 Speech by HR/VP Federica Mogherini at the European Parliament plenary session on the recent developments in migration (Brussels, 12 September 2017) (last accessed 17 September 2017). 63 This is a point also raised about the core task of Operation Sophia in Libya’s territorial waters: see P Strauch, ‘When Stopping the Smuggler Means Repelling the Refugee: International Human Rights Law and the European Union’s Operation to Combat Smuggling in Libya’s Territorial Sea’ (2016) 126 Yale Law Journal 2421. For the broader issues, see V Moreno-Lax and E Papastavridis (eds), Boat Refugees and Migrants at Sea: A Comprehensive Approach: Integrating Maritime Security with Human Rights (Brill/Nijhoff 2017). 64 These have been leaked and are available online (for instance, on statewatch.org). 65 See the reports by the Operation Commander covering the period between 1 January and 31 October 2016, dated 15 November 2016, 23 (last accessed 3 August 2017) and the period between 22 June and 31 December 2015, dated 25 January 2016, 29 (last accessed 3 August 2017).

The nexus between CFSP/CSDP and the AFSJ 307 that the EUNAVFOR Commander had to remind the EU and its Member States of the urgent need to have the post of legal assistant filled.66 Operation Sophia provides a snapshot of the intensity with which AFSJ objectives have penetrated CSDP and the policy and legal issues that this development raises in the design and conduct of the policy. It also illustrates in practical terms the point made above in Section 3 about the impact that the interactions with AFSJ have on the character of CSDP: the needle has been moved away from the hard end of the security spectrum, and CSDP has been instrumentalized in order to carry out objectives of other EU policies. In fact, we see this development in other aspects of CSDP which are not related to migration. For instance, in the context of the rule-of-law mission in Georgia (EUJUST THEMIS), quite early on in the life of CSDP, the security contribution that the Union made was at odds with the Georgian government’s expectations about more traditional and hard security.67 The position of organized crime at the centre of the Union’s understanding of order in its missions in Bosnia was received in a similar manner.68 And it is not only the CFSP that has found its character affected by interacting with AFSJ. In fact, the impact of the CFSP–AFSJ nexus works both ways. A case in point is the operation of the European Border and Coast Guard Agency (Frontex) in the eastern Mediterranean in order to stave off migration, mainly from Syria, Afghanistan and Somalia. It is this blurring of operational mandates and objectives that has given rise to a healthy debate about the increasingly prominent security dimension of the external aspects of AFSJ.69

4. THE JUDICIAL APPROACH The analysis so far has focused on the development of the linkages between CFSP and AFSJ as a matter of policy and their impact in practice. The intensity of these linkages raises questions about the legal basis of EU measures whose objectives straddle the policy areas. Given the distinct characteristics of the sets of rules and procedures governing these policy areas, the legal basis disputes are significant not only for the 66

See the report covering the period between 22 June and 31 December 2015, dated 25 January 2016, 9 (last accessed 3 August 2017). 67 See L di Puppo, ‘The Externalization of JHA Policies in Georgia: Partner or Hotbed of Threats?’ (2009) 31 European Integration 103. 68 See A Juncos, ‘Of Cops and Robbers: the EU and the Problem of Organized Crime in Bosnia’ in B Balamir-Coskun and B Demirtas-Coskun (eds), Neighborhood Challenge: The European Union and its Neighbours (Universal Publishers 2009). 69 In relation to, for instance, the Mobility Partnerships, see P Seeberg, ‘Mobility Partnerships and Security Subcomplexes in the Mediterranean: The Strategic Role of Migration and the European Union’s Foreign and Security Policies Towards the MENA Region’ (2017) 22 European Foreign Affairs Review 91. More generally, see C Matera, ‘An External Dimension of the AFSJ? Some Reflections on the Nature and Scope of the Externalisation of the AFSJ Domain’ in M Fletcher, E Herlin-Karnell and C Matera (eds), The European Union as an Area of Freedom, Security and Justice (Routledge 2017).

308 Research handbook on the EU’s common foreign and security policy regulation of the activities undertaken by the Union, but also for the overall constitutional order of the EU. After all, the choice of legal basis is of constitutional significance, given that it indicates compliance with the principle of limited powers, enshrined in Article 5 TEU, and determines the nature and extent of the Union’s competence.70 As far as international agreements are concerned, the legal basis question about CFSP and AFSJ has been raised in two cases. In the first case, it was raised indirectly. This was in Case C-658/11 European Parliament v Council about the conclusion of the agreement between the EU and Mauritius on the transfer of individuals suspected of piracy at sea to Mauritius authorities by EU personnel.71 The agreement was concluded in the context of the anti-piracy Operation Atalanta. Rather than challenging the substantive legal basis of the conclusion of the agreement, the Parliament accepted that the latter was predominantly about CFSP. It argued, however, that, in the light of the incidental implications of the agreement for judicial cooperation in criminal matters, police cooperation and development cooperation, its consent was required pursuant to Article 218(6)(a)(v) TFEU. The Grand Chamber of the Court rejected this argument: without questioning Article 37 TEU as the proper legal basis for the conclusion of the Agreement, it held that it is the substantive legal basis that determines the type of procedure applicable under Article 218 TFEU. The legal basis question was raised directly in Case C-263/14 European Parliament v Council about the EU-Tanzania transfer agreement, also concluded in the context of Operation Atalanta.72 In addition to the CFSP legal basis (Article 37 TEU), should it have been concluded under Article 82 TFEU (judicial cooperation in criminal matters) and Article 87 TFEU (police cooperation) too? The Grand Chamber of the Court answered in the negative. It held that the agreement was ‘intimately linked’ to Operation Atalanta as it set up a mechanism which constituted ‘an essential element in the effective realisation of the objectives’ of the operation.73 The agreement would be devoid of purpose were it not for the operation. The agreement, therefore, pursued the objectives of the CSDP operation, namely to preserve international peace and security, and fell predominantly within the scope of the CFSP. In the EU-Tanzania judgment, the Court did not attempt to provide an abstract definition of either security and defence policy or judicial cooperation in criminal matters and police cooperation. Instead, its line of reasoning was firmly anchored in the intrinsic linkages between the contested measure and the specific policy context within which it was adopted. In doing so, the Court did not follow the approach articulated by Advocate General Kokott in her Opinion,74 and which had also been set out earlier by Advocate General Bot in the EU-Mauritius case.75 That approach had distinguished between international security (outside the territory of the EU) and internal security 70 Opinion 2/00 EU:C:2001:664, para 5. On legal basis disputes, see P Koutrakos, ‘Legal Basis and Delimitation of Competence in EU External Relations’ in M Cremona and B De Witte (eds), EU Foreign Relations Law – Constitutional Fundamentals (Hart Publishing 2008). 71 ECLI:EU:C:2014:2025. 72 ECLI:EU:C:2016:435. 73 ibid, para 51. 74 ECLI:EU:C:2015:729, paras 63ff. 75 EU:C:2014:41, paras 80ff.

The nexus between CFSP/CSDP and the AFSJ 309 (within the EU): the former was covered by CFSP/CSDP, whereas the latter was covered by AFSJ. By focusing, instead, on the links between the agreement and the CSDP Operation in the context of which it was concluded, the Court avoided the complex task of distinguishing between international and EU security and defining the scope of both. It is instructive to see how the Court has dealt with the legal basis issues raised by the CFSP–AFSJ nexus in another context, that is sanctions.76 On the one hand, following a CFSP measure that determines the need for the EU to impose sanctions, Article 215 TFEU provides for their imposition on natural or legal persons by means of a Council measure adopted by qualified majority. On the other hand, the Council also has the power under Article 75 TFEU to restrict capital movements, for instance by freezing assets of private or legal persons, in order to pursue the AFSJ objectives laid down in Article 67 TFEU. This power is exercised on the basis of the ordinary legislative procedure. In Case C-130/10 Parliament v Council (Smart sanctions), the question arose whether freezing financial assets of individuals suspected of financing international terrorism was an AFSJ matter or one that fell within the scope of CFSP and, subsequently, Article 215 TFEU.77 The Grand Chamber decided that it was the latter. Having pointed out that the procedural differences governing the relevant rules prevented the adoption of antiterrorist sanctions pursuant to both Article 216 TFEU and AFSJ provisions, the Court focused on the objectives of such measures: While admittedly the combating of terrorism and its financing may well be among the objectives of the area of freedom, security and justice, as they appear in Article 3(2) TEU, the objective of combating international terrorism and its financing in order to preserve international peace and security corresponds, nevertheless, to the objectives of the Treaty provisions on external action by the Union.78

This conclusion was backed up by reference not only to the general objectives of what the EU does in the world (Article 21(2)(c) TEU includes the strengthening of international security in the Union’s external action objectives), but also to the specific scope of CFSP (Article 24(1) TEU brings ‘all areas of foreign policy and all questions relating to the Union’s security’ within CFSP competence). The Court accepts that terrorism constitutes a threat to peace and international security and that, therefore, combating it may well be the object of CFSP action, especially given the reference to the fight against terrorism in Article 43(1) TFEU. There is a thread that brings together the judgments in the Smart sanctions and the EU-Tanzania cases and it suggests a reluctance by the Court to impinge upon the CFSP policy in order to enhance other EU policies. In both cases, the scope of CFSP is protected and the competence of the Union safeguarded. To that effect, the reference in the Smart sanctions judgment to Article 24(1) TEU and the almost unlimited scope of the policy is noteworthy. This approach is in contrast to the pre-Lisbon judgment in ECOWAS, where the Court had enhanced the scope of development cooperation policy 76 77 78

On the practice of EU sanctions, see Chapter 10 in this volume. EU:C:2012:472. ibid, para 61.

310 Research handbook on the EU’s common foreign and security policy at the expense of CFSP.79 Given the new constitutional configuration of the EU legal order and the amendment of Article 40 TEU, which places the CFSP on an equal footing with the other EU policies,80 this approach is welcome. In fact, Cremona argues that the case law examined in this section illustrates the Court’s acceptance of the integration of CFSP/CSDP within the EU’s constitutional order.81 Whilst the EU-Tanzania and Smart sanctions judgments illustrate the same overall approach to CFSP, their line of reasoning differs. The former is based on the firm anchoring of the contested act (the transfer agreement) in its specific policy context (the CSDP operation which it was designed to facilitate). The latter, however, is more obscure. It appears to focus on the international dimension and genesis of the contested measures. As the Court put it in Smart sanctions, the objectives of Article 215 TFEU, as a bridge with CFSP, and AFSJ, ‘although complementary, do not have the same scope’.82 The judgment, however, does not rely expressly on a distinction between internal and external security, which would assign the former to AFSJ and the latter to CFSP. Instead, it appears to suggest that, from a substantive point of view, once the EU institutions chose to tackle terrorism by relying upon CFSP, the broad scope of the latter and the external action objectives set out in Article 21 TEU would render recourse to AFSJ redundant. Where does this all leave us? Whilst carrying the authority of the Grand Chamber, the case law on the CFSP–AFSJ nexus is of limited volume and has been rendered in a narrow legal context. In the Smart sanctions case, the contested measures amended previous sanctions that had been adopted in the light of United Nations Security Council resolutions, a factor that highlighted the international security dimension of the measures. In the EU-Tanzania case, the intrinsic linkages between the contested agreement and the CSDP operation that it was designed to facilitate made general pronouncements about the AFSJ-CFSP objectives and their constitutional ramifications unnecessary. Put differently, the narrow legal and policy context of the case provided the Court with sufficient grounds to address the specific dispute.83 Viewed from this angle, the case law examined in this section safeguards the scope and role of CFSP within the Union’s constitutional order but does not take us much farther. We are not much clearer as to how to determine, as a matter of principle, the appropriate legal basis of an EU measure in the light of the complementary objectives of CFSP and AFSJ. The greater the osmosis between the two policies, the greater the ambiguity that surrounds the legal choices that the institutions would have to make. 79 Case C-91/05 Commission v Council EU:C:2008:288. See the comments in C Hillion and R Wessel, ‘Competence Distribution in EU External Relations after ECOWAS: Clarification or Continued Fuzziness’ (2009) 46 CML Rev 551 and the criticism in Koutrakos (n 25) 231–44. 80 This provision is mentioned expressly by AG Bot in his Opinion in Case C-130/10 Parliament v Council (Anti-Terrorism Sanctions) EU:C:2012:50, para 67, though, curiously, not by the Court. 81 See Chapter 1 in this volume. 82 EU:C:2012:472, para 66. 83 See also S Sánchez-Tabernero, ‘The Choice of Legal Basis and the Principle of Consistency in the Procedure for Conclusion of International Agreements in CFSP Contexts: Parliament v Council (Pirate Transfer Agreement with Tanzania)’ (2017) 54 CML Rev 899, 910.

The nexus between CFSP/CSDP and the AFSJ 311 This is, of course, not a problem confined to these two policies. The relationship between development cooperation and CFSP is another example of interacting policies the conduct of which raises similar questions for the Union’s institutions.84 It is also not explained solely by the inherent characteristics of CFSP and AFSJ. After all, the revamping of the external action framework at Lisbon and the provision of a set of horizontal objectives in Article 21(2) TEU for all external policies have added another layer of complexity to the legal organization of the EU’s external action.85 In a different context, the post-Lisbon changes are reflected in the richer conception of the Common Commercial Policy articulated in Opinion 2/15 on the Free Trade Agreement between the EU and Singapore.86 The intensity, however, of the CFSP–AFSJ nexus highlights further the difficulties that we face in navigating the complex legal landscape of the Union’s external action.

5. CONCLUSION This chapter has made three main arguments. First, the interactions between CFSP and AFSJ have become increasingly pronounced and their nexus central to the EU’s understanding of how best to tackle the main policy challenges that it faces. Second, the intensity of these interactions has had an impact on the character of the policies. The CFSP, in particular, has moved closer to the soft end of the security spectrum and is being instrumentalized in order to enable the EU to achieve objectives of other policies. Third, whilst it prevents the scope of CFSP from being impinged upon by other policies, the limited, so far, case law of the Court of Justice on the relationship between CFSP and AFSJ does not provide a clear yardstick that would enable the institutions to address legal basis questions with confidence. There is also another, broader, point to make about the CFSP–AFSJ nexus: whilst it has had an impact on the character and conduct of both policies, the nature of the nexus itself is dynamic and subject to adjustment. After all, the objectives of the AFSJ are about ongoing problems that have assumed almost existential dimensions for the EU.87 Similarly, and following the decision of the United Kingdom to leave the EU, there has been movement about the pace of the development of CSDP, regarding, in particular, the issue of capabilities.88 The shape of the relationship, therefore, between CFSP and AFSJ may not be viewed in isolation from the prevailing political climate in the EU. In fact, it is bound to be affected by the ensuing policy adjustments in which the decision-making institutions decide to engage.

84

See Chapter 12 in this volume. See J Larik, Foreign Policy Objectives in European Constitutional Law (OUP 2016). 86 EU:C:2016:992. See Chapter 11 in this volume. 87 The Global Strategy starts off by pointing out that ‘[w]e live in times of existential crisis, within and beyond the European Union’ (n 13) 13. 88 See Chapter 8 in this volume. 85

15. European Neighbourhood Policy: CFSP in disguise Steven Blockmans

1. INTRODUCTION The Lisbon Treaty was intended to create tools for the European Union to develop a more coherent, more effective and more visible foreign policy, in particular for relations with its neighbours. Yet, while the Treaty now contains a specific clause (Art. 8 TEU) that envisions a peaceful and prosperous neighbourhood and provides a legal base for the conclusion of agreements underpinning ‘a special relationship … founded on the values of the Union’, realities on the ground have moved in the opposite direction. Stability has sharply deteriorated over the last couple of years, both in economic and security terms, with no apparent end in sight. Whereas the EU cannot be blamed for the dire economic outlook, the backsliding of respect for democratic principles, fundamental rights and the rule of law, the deterioration of the security environment and other woes that have befallen or been generated by the countries in its outer periphery, the neighbourhood does constitute one of the most important geopolitical tests for the EU. How it deals with its own neighbourhood will define not just the Union, but also the perception its international partners have of the EU’s role on the global stage. Conceptually flawed from the beginning for peddling an ‘enlargement lite’ policy to countries which were denied or did not want the prospect of EU accession,1 the European Neighbourhood Policy (ENP) remained in suspended animation for the first decade after its inception in 2004.2 Efforts to establish closer ties at the regional level have not lived up to expectations either. The Union for the Mediterranean (UfM), which has been troubled by controversy since it followed on from the Barcelona Process in 2008, was dealt a severe blow by the so-called ‘Arab Spring’ of early 2011 and is still struggling to recover. The upheaval in the southern neighbourhood forced the first major re-think of the ENP3 but did not produce much change in the Eurocentric conception of the policy. 1 See N Popescu and A Wilson, The Limits of Enlargement-lite: European and Russian Power in the Troubled Neighbourhood (ECFR 2009). 2 Communication from the Commission, ‘European Neighbourhood Policy, Strategy Paper’ COM (2004) 373 final. 3 Joint communication of the European Commission and the High Representative to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘A new response to a changing Neighbourhood’ COM (2011) 303 final.

312

European Neighbourhood Policy 313 The Eastern Partnership (EaP) has fared only marginally better since its creation in 2009. It suffered an equally hard shock when Russia – the Union’s biggest and (militarily) most powerful neighbour – which chose to remain outside the ENP, forced Ukrainian President Viktor Yanukovych to follow the example of his Armenian counterpart by rescinding the negotiations for an Association Agreement (AA) with the EU in November 2013 and used the ensuing pro-European revolt as an excuse to annex Crimea and invade Donbas. Whether or not one attributes conflict-triggering characteristics to the Eastern Partnership, the fact remains that this episode has exposed shortcomings in the EU’s awareness of the strategic nature of the ENP, in whole and in part. The 2015 Review infused the ENP with the promise of a more realistic vision, a more differentiated approach to relations with each of its neighbours and more functional frameworks for cooperation.4 Resilience has become the buzzword for the ‘new’ ENP. This reflects the EU’s desire for stability in the countries on its outer borders. By putting security first, this approach of so-called ‘principled pragmatism’ has led to the perceived demotion of fundamental rights in the external action of a Union that appears ill-equipped in matters of security. Moreover, the policy framework of the ENP does not seem to offer the scope to seek concrete solutions to the daunting political and security challenges emanating from the EU’s outer periphery. It is the latter observation, in particular, that raises questions about the alleged nexus between the ENP and the CFSP. Does such a nexus exist at all or is the ENP mere CFSP in disguise? To answer this question, the chapter investigates the supposedly unique features of the ENP: its legal geography (Section 2), main principles (Section 3), institutions and instruments (Section 4), and relationship to the CFSP and CSDP as developed in practice (Section 5).

2. LEGAL GEOGRAPHY Unlike trade, development cooperation, the CFSP and other strands of the EU external action portfolio, neighbourhood relations did not rest on a specific basis in EU primary law prior to the entry into force of the Lisbon Treaty. Different instruments from across all three Union pillars (AA, tools pertaining to visa and asylum, financial and technical instruments, CFSP measures) were brought together in an attempt to develop an integrated structure for broad ENP objectives.5 By recycling Article I-57 of the rejected Treaty establishing a Constitution for Europe, the Treaty of Lisbon introduced a

4

Joint Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘Review of the European Neighbourhood Policy’ JOIN (2015) 50 final. 5 See, e.g., M Cremona, ‘The European Neighbourhood Policy: More Than a Partnership?’ in M Cremona (ed.), Developments in EU External Relations Law (OUP 2008); and B Van Vooren, EU External Relations Law and the European Neighbourhood Policy: A Paradigm for Coherence (Routledge 2012).

314 Research handbook on the EU’s common foreign and security policy specific provision on relations between the EU and its neighbours.6 Article 8 TEU stipulates the following: 1.

2.

The Union shall develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation. For the purposes of paragraph 1, the Union may conclude specific agreements with the countries concerned. These agreements may contain reciprocal rights and obligations as well as the possibility of undertaking activities jointly. Their implementation shall be the subject of periodic consultation.7

The first striking characteristic of the neighbourhood clause is the prominent place it occupies in the Treaties: Article 8 sits among the Common Provisions in Title I of the TEU, among the values and objectives of the Union, which ‘colour the meaning of the competence it encapsulates, the nature of the policy it envisages, as well as its function’.8 The position of Article 8 TEU suggests that the neighbourhood competence transcends the legal dichotomy between the CFSP (embedded within the TEU) and non-CFSP powers (enshrined in the TFEU)9 and has the potential to strengthen the Union’s ability to shape its neighbourhood policy in a holistic fashion, joining up internal and external policy aspects into a comprehensive approach towards neighbouring countries. Moreover, it could be argued that, because of its inclusion in Title I of the TEU and its nature as a lex specialis that supports the general mandate of the Union to build partnerships with third countries that share its principles and values (Art. 21(1) TEU), Article 8 TEU indirectly imposes an obligation of intent on the EU institutions ‘to take account of the neighbourhood policy’s objectives when exercising Union competences, for instance in elaborating the EU’s transport, energy, environment policies, in the development of the internal market and, naturally, in the enlargement process’.10 That said, the legal geography of Article 8 TEU is rather odd when considering best practices of treaty drafting. It is disconnected from the ordinary decision-making procedures and instruments that belong to the supranational realm of external action 6

This section builds on S Blockmans, ‘Friend or Foe? Reviewing EU Relations with its Neighbours Post Lisbon’ in P Koutrakos (ed.), The European Union’s External Relations A Year After Lisbon, CLEER Working Paper No. 3 (TMC Asser 2011). 7 In a separate Declaration on Article 8 TEU, the EU makes clear that it is willing to take account of ‘the particular situation of the small-sized countries which maintain specific relations of proximity’. See M Maresceau, ‘The Relations between the EU and Andorra, San Marino and Monaco’ in A Dashwood and M Maresceau (eds), Law and Practice of EU External Relations: Salient Features of a Changing Landscape (CUP 2008). 8 See C Hillion, ‘The EU Neighbourhood Competence under Article 8 TEU’ (2013) 3 SIEPS European Policy Analysis 2. 9 Cf. Article 40 TEU, commented upon by, e.g., P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (OUP 2011) 168–170. Article 40 TEU is the object of a new body of case law. See Case C-130/10 European Parliament v Council of the European Union ECLI:EU:C:2012:472, paras 42–82; Case C-658/11 Parliament v Council (EU agreement with Mauritius) ECLI:EU:C:2014:2025; Case C-263/14 Parliament v Council (Tanzania) ECLI:EU:C:2016:435; and Case C-455/14 P H v Council ECLI:EU:C:2016:569. 10 See Hillion (n 8) 2.

European Neighbourhood Policy 315 provided by Part V of the TFEU. Seen from that perspective, the neighbourhood article seems to be in the ‘wrong’ Treaty to make a real splash. In the TEU too, the link which previously existed with the EU membership clause in the Final Provisions of the TEU (Art. 49) has been severed. Moreover, the neighbourhood clause is divorced from the specific procedures and instruments under Title V TEU on the CFSP. Yet, when looking at it through the prism of the development of a comprehensive neighbourhood policy, these arguments do not seem to outweigh the benefits that could be garnered by superimposing the neighbourhood clause over the cracks between the Treaties. The prima facie constitutional isolation of Article 8 TEU in Title I of the TEU might thus have positive practical implications for mainstreaming a policy that was and remains cross-pillar in nature. However, ‘too much constitutional law’11 might also lead to inter-institutional turf battles over the ENP. As Bruno de Witte has observed, the implementation of the new obligation towards the neighbourhood might add [structural and procedural] constraints on the development of a policy which, thus far, had been incremental and flexible, thanks notably to the fact that it was forged outside the Treaty framework, on the basis of soft law instruments … [I]naction on the part of the Union could lead to possible proceedings before the European Court of Justice, the way failures to develop common policies were in the past sanctioned by the Court. Moreover, the exercise of the EU neighbourhood competence requires from both institutions and Member States a higher degree of compliance with the measures thereby adopted, and a mutual duty of cooperation to ensure the fulfilment of the Union objectives thereof.12

Other constraints could consist of an application of the principles of conferral, subsidiarity, proportionality and consistency. The second peculiarity about the neighbourhood article is its sketchy wording concerning the result to be achieved. The langue de bois of political and diplomatic rhetoric resonates in the references to the creation of ‘an area of prosperity and good neighbourliness’, an amalgam of fuzzy concepts. A clear definition of the term ‘neighbouring countries’ is missing from the article. It is only by reasoning a contrario, i.e. by reading both Article 3(5) TEU on the Union’s relations with what is called the ‘wider world’ and the membership clause of Article 49 TEU that one can deduce that Article 8 TEU envisages a relationship with countries on or in the vicinity of the European continent that do not wish to or cannot by definition become a member of the Union. As such, Article 8 TEU lumps a micro-state like Andorra, a European Free Trade Area (EFTA) country like Switzerland, a European Economic Area (EEA) member like Norway, a strategic power like Russia, an EaP country like Armenia, and a UfM member like Lebanon together in the same group, despite the substantial differences in (contractual) relations between the EU and each of these (clusters of) countries. Article 8 TEU is therefore not a legal basis exclusive to the ENP. Paragraph 1 of Article 8 prescribes that ‘the Union shall develop a special relationship with neighbouring countries’. Arguably, this mandatory Treaty language 11

Cf. B de Witte, ‘Too Much Constitutional Law in the European Union’s Foreign Relations?’ in M Cremona and B de Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (Hart Publishing 2008). 12 ibid, 3.

316 Research handbook on the EU’s common foreign and security policy sets EU relations with neighbouring countries apart from relations between the EU and like-minded and similarly principled countries farther afield, which the EU is merely under the obligation to ‘seek to develop’, however strategic such alliances may be (cf. Art. 21(1) TEU). As such, the Treaty of Lisbon sends a strong signal to countries with which the EU shares its external borders. The Union is obliged to (‘shall’) develop a special relationship with its neighbours. The use of the singular ‘relationship’ in the Treaty provision could – a contrario – be interpreted to mean that the EU is not automatically obliged to develop special ‘relations’ with all its neighbours. From this subtle nuance in terminology flow the preconditions for the directly applicable obligation of Article 8. The notion of a ‘special relationship’ relates to (i) the establishment of ‘an area of prosperity and good neighbourliness’, (ii) ‘founded on the values of the Union’, (iii) ‘characterised by close and peaceful relations based on cooperation’. In other words, the Union is not obliged to construct a peaceful and prosperous neighbourhood with those countries that do not share its values.13 But on the basis of the first sentence of Article 8(1) TEU, one could argue that the EU is bound to engage with all neighbouring countries; if not with the governments because of their poor record in, for instance, fundamental rights protection, then at least with civil society organizations in or outside of those countries, ‘precisely with a view to asserting [the Union’s] own values’.14 Like the creation of a ‘ring of friends’, the establishment of a single (‘an’) area of prosperity and good neighbourliness characterized by close and peaceful relations based on cooperation sounds somewhat utopian and certainly unrealistic in the short- to mid-term future. After all, the Union’s neighbourhood is littered with actual and potential flash points for conflict between, e.g., (de jure) states and secessionist entities and/or de facto states (e.g. Moldova and Transnistria), governments and terrorist groupings (e.g. Libya), and (large parts of countries’) populations and the undemocratic and repressive regimes that govern them (e.g. Egypt).15 These realities and pressures emerging from countries and regions that lie beyond the ring of neighbours continue to negatively influence bilateral relations between the EU and some of its neighbouring states, as indeed among neighbouring countries themselves, and impede the creation of the single area of peace, harmony and understanding that the Treaty calls for. It should therefore come as no surprise that the ENP is – and will continue to be for a considerable period – suspended between the finalité of EU–neighbours relations as 13

Others have argued that the provision ‘impedes the Union from entering into a special relationship with neighbouring countries refusing to commit themselves to the values of the Union’. See D Hanf, ‘The ENP in the light of the new “neighbourhood clause” (Article 8 TEU)’, College of Europe, Research Paper in Law – Cahiers juridiques No. 2/2011. See also P Van Elsuwege and R Petrov, ‘Article 8 TEU: Towards a New Generation of Agreements with the Countries of the European Union?’ (2011) 36 European Law Review 688. 14 See Hillion (n 8) 3–4, who argues that ‘Article 8 TEU is a neighbouring state-building policy, involving the whole array of EU instruments’. 15 See S Blockmans and RA Wessel, ‘The European Union and Peaceful Settlement of Disputes in its Neighbourhood: The Emergence of A New Regional Security Actor?’ in A Antoniadis, R Schütze and E Spaventa (eds), The European Union and Global Emergencies: Law and Policy Aspects (Hart Publishing 2011).

European Neighbourhood Policy 317 prescribed in Article 8 TEU and the (geo)political and socio-economic realities that define such relations.

3. MAIN PRINCIPLES16 Of more practical relevance is the reference in Article 8(1) to the values of the Union, reflecting Article 2 TEU, which states that the Union ‘is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights’. These are the previously named ‘shared values’ listed in the Council Conclusions of June 2003;17 the ones on which Article 49 TEU is also based. By dropping the pretence of the values being shared by all neighbouring countries, and insisting instead that the EU projects its own normative power in the neighbourhood, the Lisbon Treaty has brought the objective of Article 8 into line with the promotion of the EU’s own interests and worldview as professed in Articles 3(5) and 21 TEU.18 The revised political conditionality that carries the Treaty’s aim of establishing a special relationship with neighbouring countries reflects a further shift of emphasis away from ‘shared values’ towards a ‘shared commitment to universal values’: ‘The new approach must be based on mutual accountability and a shared commitment to the universal values of human rights, democracy and the rule of law.’19 This raises the question of the extent to which ‘the principles which have inspired [the Union’s] own creation, development and enlargement, and which [the EU] seeks to advance in the wider world’ (Art. 21(1) TEU; cf. Art. 2 TEU) are universal in nature. Leaving discussions about cultural relativism aside, the fact is that – in theory – the EU expects partner countries to embrace international norms and standards, notably by signing up to both international and regional human rights agreements.20 This approach aims to provide greater support to partners engaged in building what the EU rather pompously called ‘deep democracy – the kind that lasts’.21 Whereas this phrase seems to have been coined to obscure the fact that the EU did not have any qualms in dealing with less than democratic regimes prior to the ‘Arab Spring’, and suggests that the Union has since stepped up its efforts in this respect, the Commission and High Representative have been keen to emphasize that the EU ‘does not seek to impose a 16

For a typology of the main principles and the literature pertaining to each, see H Kostanyan (ed.), Assessing European Neighbourhood Policy: Perspectives from the Literature (Rowman and Littlefield 2017). 17 GAERC Conclusions, 16 June 2003, para 2. See also GAERC Conclusions of 14 June 2004, para 4. 18 See J Larik, ‘Entrenching Global Governance: The EU’s Constitutional Objectives Caught Between a Sanguine World View and a Daunting Reality’ in B Van Vooren, S Blockmans and J Wouters (eds), The EU’s Role in Global Governance: The Legal Dimension (OUP 2013). 19 COM (2011) 303 final, 2–3. 20 ibid, 5: ‘Commitment to human rights and fundamental freedoms through multilateral treaties and bilateral agreements is essential. But these commitments are not always matched by action. Ratification of all the relevant international and regional instruments and full compliance with their provisions, should underpin our partnership.’ 21 ibid, 2.

318 Research handbook on the EU’s common foreign and security policy model or a ready-made recipe for political reform, but [that] it will insist that each partner country’s reform process reflect a clear commitment to universal values that form the basis of [the] renewed approach [to the ENP]’.22 And while the intention was to strengthen the two regional dimensions of the policy (EaP and UfM) ‘so that the EU can work out consistent regional initiatives in areas such as trade, energy, transport or migration and mobility’,23 the Commission and the High Representative (HR), supported by the European External Action Service (EEAS), have in fact pushed more towards an own merits-based approach whereby it is easier to distinguish friends from foes. EU support, in the form of preferential commitments, is tailored and conditioned accordingly: ‘Some partners may want to move further in their integration effort, which will entail a greater degree of alignment with EU policies and rules leading progressively to economic integration in the EU Internal Market.’24 This ‘more for more’ conditionality has been marginally successful in its application, mainly through increased funding for social and economic development, larger programmes for comprehensive institution-building, greater access to the EU’s Single Market, increased financing in support of investments, and greater facilitation of mobility. Yet the sums of money mustered through and on top of the European Neighbourhood Instrument (ENI) have proved to be too small an incentive to bolster the change needed to secure a successful transition from authoritarianism to democratic rule in the southern Mediterranean.25 Evidence has been provided by the European Court of Auditors (ECA) in a number of country-specific and thematic reports on EU spending in ENP, either partly or wholly funded via the ENI.26 For countries where reform has not taken place, the EU would normally reconsider or even reduce funding

22

ibid. ibid. 24 ibid, 3. 25 The ENI is worth €15.4 billion from 2014 to 2020. The overall allocation for its predecessor, the European Neighbourhood and Partnership Instrument (ENPI), amounted to almost €12 billion for 2007–2013. 26 In June 2013, in a special report on EU Cooperation with Egypt in the Field of Governance, the ECA wrote that the new approach to the ENP had not yet been applied. See . In December 2013, in its Special Report on EU financial support for the Palestinian Authority, the ECA noted that the Commission had pledged to tie funding to recipient countries’ progress on reforms but had not yet applied this to the occupied Palestinian territories. See . An ECA special report published in March 2016 assessed EU external migration spending in neighbourhood countries until 2014 and found that project objectives were often set in general terms, which made it difficult to assess results. Of 23 migrant readmission and return projects assessed by the Court, five relating to readmission were assessed as ‘rather small and … limited in their results and effectiveness’. See . An ECA special report published in September 2016 on EU assistance for strengthening public administration in Moldova concluded that EU funds had had limited impact. See . 23

European Neighbourhood Policy 319 (‘less for less’) but this form of negative conditionality has hardly been applied, let alone created any noticeable impact.27 Whatever there may be of this, with the introduction of a merit-driven approach in the 2011 Review of the ENP, the Commission and the HR abandoned the Treaty’s conceptualization of a single, peaceful and prosperous neighbourhood and replaced it with a variable geometric model based on a set of differentiated relationships. More so than before the entry into force of the Treaty of Lisbon, the Union thereby relied on its power of attraction, akin to the soft power that inspires candidate countries to adhere to the conditions of EU membership. Practice has shown, however, that the Union’s even ‘softer’ power in the neighbourhood – one that is premised on a stake in the internal market but not in the institutions – is enough to inspire the reforms that are needed to underpin the kind of cooperation on which a single area of prosperity and good neighbourliness could be established. At the presentation of the ‘new ENP’ in 2015, Commissioner Johannes Hahn offered a sobering reality check: ‘Our most pressing challenge is the stabilisation of our neighbourhood. Conflicts, terrorism and radicalisation threaten us all. But poverty, corruption and poor governance are also sources of insecurity. That is why we will refocus relations with our partners where necessary on our genuinely shared common interests.’28 Hahn’s statement encapsulates the essence of the 2015 ENP Review: greater emphasis on stability (in security and economic terms); more differentiation in relations with neighbours (i.e. doing more with ‘partners’); and greater emphasis on shared interests rather than on the Union’s own values.

4. INSTITUTIONS AND INSTRUMENTS Besides the introduction of a specific legal base in the form of Article 8 TEU, the Lisbon Treaty’s changes to the governance structures of EU external action29 also impacted on the management and development of the ENP. The most significant of 27 There was, e.g., a total absence of references to ‘less for less’ in the Commission’s ‘EU’s response to the “Arab Spring”: The State-of-Play after Two Years’, Press release A 70/13, Brussels, 8 February 2013. See T Schumacher, ‘The European Union and Democracy Promotion: Readjusting to the Arab Spring’ in L Saki (ed.), Routledge Handbook of the Arab Spring: Rethinking Democracy (Routledge 2015). Noting insufficient commitment to reforming the justice sector in 2014 and 2015, the EU did cut budget support to Moldova in 2017. See EEAS Press release, ‘Moldova: EU cuts budget support programme for justice reforms’, 11 October 2017, available at . 28 European Commission, ‘Review of the European Neighbourhood Policy (ENP): stronger partnerships for a stronger neighbourhood’, Press release IP/15/6121, 18 November 2015. 29 See, generally, J Wouters, D Coppens and B De Meester, ‘The European Union’s External Relations after the Lisbon Treaty’ in S Griller and J Ziller (eds), The Lisbon Treaty: EU Constitutionalism Without a Constitutional Treaty (Springer 2008); J-C Piris, The Lisbon Treaty: A Legal and Political Analysis (CUP 2010); P Craig, The Lisbon Treaty: Law, Politics and Treaty Reform (OUP 2010); P Van Elsuwege, ‘EU External Action after the Collapse of the Pillar Structure: In Search of a New Balance between Delimitation and Consistency’ (2010) 47 CML Rev 987.

320 Research handbook on the EU’s common foreign and security policy these changes relate – directly and indirectly – to the merger of the position of Commissioner for External Relations (at the level of Vice-President – VP) with that of HR to assist the Council and the Commission in ensuring coherence between the different areas of the Union’s external action and between these and other EU policies (see Chapter 2 in this volume).30 The HR/VP is supported by the EEAS, composed of staff transferred from, inter alia, the European Commission’s DG External Relations (RELEX). In a pre-Lisbon move, European Commission President-elect José Manuel Barroso tried to prevent the Commission from losing all institutional control over the previously DG RELEX-driven ENP. When unveiling his team of Commissioners in November 2009,31 Barroso indicated by way of a simple asterisk that a new Commissioner for ‘Enlargement and European Neighbourhood Policy’ would exercise his functions ‘in close cooperation with the High Representative/Vice-President in accordance with the Treaties’.32 The HR’s ‘Vice-Presidential’ powers were thus effectively curtailed as the responsibility for the ENP was detached from the portfolio of the Commissioner for External Relations and added to that of new Commissioner for Enlargement. Yet, at the same time, the new Commissioner would have to rely on members of cabinet to liaise with ‘his’ ENP staff on the other side of the Rond Point Schuman, i.e. in the EEAS acting under the authority of the HR.33 While not ideal, practice has shown this to be a workable arrangement whereby the Commissioner’s actions assist the HR/VP. This is also reflected in the Communication of President Juncker on the working methods of his Commission34 and in the 30 See Articles 18(4), 21(3) and 26(2) TEU. The European Parliament and the rotating Presidency of the Council also remain active on ENP-related matters. 31 See Article 17(6)(b) TEU, which states that the President of the Commission shall ‘decide on the internal organisation of the Commission, ensuring that it acts consistently, efficiently and as a collegiate body’. 32 Press release IP/09/1837 of 27 November 2009. The requirement of close cooperation was repeated in the Mission Letter of the same date from President Barroso to Commissionerdesignate Stefan Füle. See . 33 A quick glance at the EEAS’ organizational chart of October 2018 shows that, together, two geographical Managing Directorates (MD) incorporate six units that deal with aspects of the ENP. Under MD-EURCA ‘Europe and Central Asia’, Division EURCA-EAST ‘Russia, Eastern Partnership; Central Asia, Regional Cooperation and OSCE’, the following units have been created: ‘Eastern Partnership, regional cooperation and OSCE’ and ‘Eastern Partnership, bilateral’. Under MD-MENA ‘Middle East and North Africa’ exist the following units: ‘MENA 1 – Egypt, Syria, Lebanon, Jordan’, ‘MENA 2 – Israel, occupied Palestinian territories and MEPP’, MENA 3 ‘Maghreb’ and MENA 5 ‘Strategy and instruments of the ENP’. 34 See Communication from the President to the Commission, ‘The Working Methods of the European Commission 2014–2019’ C(2014) 9004. The principle of collegiality, which governs decision-making in the Commission (Article 17(6) TEU), guarantees the equal participation of all the Commissioners and the collective responsibility for the decisions taken. As a general rule, the President does not place a new initiative on the agenda of the College ‘unless this is recommended to [him] by one of the Vice-Presidents on the basis of sound arguments and a clear narrative that is coherent with the priority projects of the Political Guidelines’. See also, e.g., Juncker’s Mission Letter to Mogherini, available at . With the dual aim of achieving greater coherence in EU foreign policymaking and greater efficiency in the consistency and

European Neighbourhood Policy 321 references to the joint parenthood (i.e. European Commission and HR) of new ENP policy documents.35 The suggestion that, in case of need, Commissioner for ‘Enlargement Negotiations and European Neighbourhood Policy’ Johannes Hahn and other Commissioners could deputize for HR Mogherini ‘in areas related to Commission competence’36 also points in this direction, as indeed to the Juncker Commission’s flexibility in reorganizing its own structures to match political priorities.37 This need not imply, however, that the ENP is now exclusively governed by the ‘Community method’. In fact, the European Council, which graduated to the full status of ‘institution’, has dealt with the neighbourhood in quasi-perpetual crisis mode since 2011.38 Now that neighbourhood issues have become Chefsache, i.e. a top priority of the European Council, supported by the HR/VP and her politically guided deputy in the Commission responsible for neighbourhood relations (who relies on staff that have been moved from the Commission to the EEAS), we are witnessing the creeping intergovernmentalization of the ENP.39 In the face of the instability in the outer periphery, centrifugal and centripetal forces will continue to push or pull the ENP in one direction or the other, irrespective of the direction shown on the Treaty’s strategic compass. Whereas the ENP structures are in principle a good example of more comprehensive and coherent EU external action and carry within them the potential for further ‘deputization’ of the HR/VP on ENP matters across the institutional divide,40 practical

effectiveness of its implementation, Juncker reanimated the Commissioners’ Group on External Action (CGEA). See the Decision of the President of the European Commission on the Creation of a Commissioners’ Group on External Action C(2014) 9003; and S Blockmans and S Russack, ‘The Commissioners’ Group on External Action – Key Political Facilitator’ (2015) CEPS Special Report No. 125. 35 See, e.g., European Commission and High Representative of the Union for Foreign Affairs and Security Policy, Joint Communication to the European Council, the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘A Partnership for Democracy and Shared Prosperity with the Southern Mediterranean’ COM (2011) 200 final; and European Commission and High Representative of the European Union for Foreign Affairs and Security Policy, Joint Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘A new response to a changing Neighbourhood’ COM (2011) 303 final. 36 Mission Letter to Mogherini (n 34) 4. 37 ibid, 2 and 4. 38 See, e.g., European Council Conclusions, EUCO 147/14, 16 July 2014. Its President – who, at his level and in that capacity, ensures the external representation of the Union on CFSP issues (Art. 15(6) TEU) – has regularly spoken out on issues pertaining to the neighbourhood. See, e.g., Statement by Herman Van Rompuy, President of the European Council, on the EU’s Eastern Partnership, PCE 049/11, 23 February 2011; his video message ‘We want to turn this Arab Spring into a true new beginning’, PCE 062/11, 10 March 2011; and more recently, Preliminary remarks by Donald Tusk, following the EU-Ukraine Summit, 12–13 July 2017, PCE 463/17, and his Tweet of 1 September 2017 on the occasion of the entry into force of the AA between the EU and Ukraine. 39 Cf. C Hillion, The Creeping Nationalisation of the EU Enlargement Policy (SIEPS 2010). 40 For a different view, see C Hillion, ‘The EU Mandate to Develop a “Special Relationship” with its (Southern) Neighbours’ in G Fernandez Arribas, K Pieters and T Takács (eds), The

322 Research handbook on the EU’s common foreign and security policy experiences so far have revealed the need for extra inter-institutional coordination mechanisms to paper over the cracks between the focal points of ENP governance.41 A close reading of Articles 3(1) and 2(1) of the Council Decision establishing the EEAS reveals that the Service is to support and work in cooperation with, inter alia, the services of the Commission, ‘without prejudice to the normal tasks’ of those services.42 The inclusion of the latter phrase raises the question of what exactly the normal tasks of the Commission are in ENP-related matters. In the absence of an exhaustive Kompetenzkatalog and with the very idea of normality in EU external action having shifted dramatically since the entry into force of the Lisbon Treaty, it should come as no surprise that the neutral phrase ‘normal tasks’ has been interpreted differently by persons with different institutional affiliations. With regard to the EU’s ‘foreign policy instruments’, such a risk has been pre-empted by the drawing-up of detailed rules regarding the planning, programming and implementation of EU funds. The ensuing complexity is poignantly illustrated by the system put in place to operate the ENI. Article 9(5) of the 2010 Council Decision establishing the EEAS prescribes that any proposals, including those for changes in the basic regulations and the programming documents referred to in paragraph 3, shall be prepared jointly by the relevant services in the EEAS and in the Commission under the responsibility of the Commissioner responsible for Neighbourhood Policy and shall be submitted jointly with the High Representative for adoption by the Commission.

In turn, Article 9(3) states: In particular, the EEAS shall contribute to the programming and management cycle for the instruments referred to in paragraph 2 [incl. the ENI], on the basis of the policy objectives set out in those instruments. It shall have responsibility for preparing the following decisions of the Commission regarding the strategic, multiannual steps within the programming cycle: (i) country allocations to determine the global financial envelope for each region, subject to the indicative breakdown of the multiannual financial framework. Within each region, a proportion of funding will be reserved for regional programmes; (ii) country and regional strategic papers; (iii) national and regional indicative programmes. In accordance with Article European Union’s Relations with the Southern-Mediterranean in the Aftermath of the Arab Spring (CLEER Working Paper No. 3, TMC Asser Institute 2013) 16. 41 See, e.g., ‘HR/VP Catherine Ashton sets up Task Force for the Southern Mediterranean’, A 226/11, Brussels, 7 June 2011. The Task Force brings together expertise from the EEAS, the European Commission, the European Investment Bank, the European Bank for Reconstruction and Development and other international financial institutions to act as a focal point for assistance to countries in North Africa which are going through political transformation. 42 Council Decision 2010/427/EU of 26 July 2010 establishing the organisation and functioning of the European External Action Service [2010] OJ L201/30. For background and analysis, see S Blockmans and C Hillion (eds), EEAS 2.0: A Legal Commentary on Council Decision 2010/427/EU Establishing the Organisation and Functioning of the European External Action Service (SIEPS 2013). With respect to the coordination and cooperation between the EEAS and the services of the Commission, Art. 3(2) specifically obliges the parties to consult each other on all matters relating to the external action of the Union in the exercise of their respective functions, except on matters of CSDP.

European Neighbourhood Policy 323 3 [of the EEAS Council Decision], throughout the whole cycle of programming, planning and implementation of the instruments referred to in paragraph 2, the High Representative and the EEAS shall work with the relevant members and services of the Commission without prejudice to [the authority of the HR over the EEAS, as laid down in] Article 1(3). All proposals for decisions will be prepared by following the Commission’s procedures and will be submitted to the Commission for adoption.

The implementation of this particular strand of the obligation of sincere cooperation between the EU institutions has been spelled out in the ‘Working Arrangements between Commission services and the EEAS in relation to external relations issues’ of 13 January 2012.43 That document provides, inter alia, that the Commission services and the EEAS will perform their respective tasks throughout the programming and implementation cycle in full transparency, informing and consulting each other, sufficiently in advance, on initiatives or announcements that could have an impact on each other’s areas of responsibility. This includes an exchange of information on preparation of policy and programme documents of both a formal and informal nature. It relates to the representation of EU positions vis-à-vis recipient countries or other donors and related reporting and feedback.44

In short, whereas the management of the EU’s ENP and adjacent cooperation programmes remains under the responsibility of the Commission (Art. 9(1) EEAS Council Decision), it shares the role of ‘programming’, i.e. designing, scheduling, or planning the EU’s external cooperation programmes (only an element of the wider concept of ‘management’), with the EEAS. In fact, the HR is under a particular obligation to avail her-/himself of these instruments to ensure the overall political coordination, unity, consistency and effectiveness of the Union’s external action, ‘without prejudice to the respective roles of the Commission and of the EEAS in programming’. Thus, the basic prescript, namely that during the whole process of planning and implementation both parts of the organization should work together and that all proposals for decision have to be prepared through the Commission procedures and submitted to the Commission (Art. 9(3)), has remained unchanged. But the advent of the EEAS and the ensuing inter-service cooperation has substantially increased complexity in the management of ENP funds post Lisbon. Then again, this is a small price to pay for a comprehensive and integrated approach to the neighbourhood, and indeed the allocation of appropriate funding to the ENP. It would be far more difficult to argue for the latter if all funding for EU external action were brought under one budget line.45 Herein lies perhaps the single most important justification to keep the ENP as a separate policy framework. One way explicitly prescribed by the Lisbon Treaty to ‘give hands and feet’ to its grand objective of creating that special kind of relationship between the EU and its neighbours is through the conclusion of ‘specific agreements’ (Art. 8(2) TEU), another 43

SEC(2012)48, Ref. Ares(2012)41133 – 13 January 2012. ibid, 15. 45 There is a risk of that happening under the EU’s next Multiannual Financial Framework (MFF); a point made by Emma Udwin, Deputy Head of Cabinet of Commissioner Hahn, at a public seminar hosted by SIEPS and CEPS on 2 June 2017 in Brussels. 44

324 Research handbook on the EU’s common foreign and security policy fuzzy term, which ‘may [i.e. need not] contain reciprocal rights and obligations as well as the possibility of undertaking activities jointly’. The formulation reveals the possibility of differentiation in relations with neighbouring countries. While differentiation in itself is a good thing, it does have the potential to undermine the finalité projected by Article 8(1) TEU: the best pupils in class will acquire a different status in their relations with the Union, thereby increasing rather than reducing the disparities within the region. The neighbourhood clause itself thus seems to suffer from a structural dichotomy, ingraining the tension between a multilateral and a bilateral (i.e. own merits-based) approach. With respect to Article 8(2) TEU, for the first time the Lisbon Treaty establishes a specific legal basis to develop contractual relations with neighbouring countries. However, this does not do away entirely with the complexities of the pre-Lisbon search for an appropriate legal base for agreements with individual ENP countries.46 After all, the specific agreements which the EU envisages for Eastern Partnership states and selected countries from the southern Mediterranean are AAs built around the establishment of a Deep and Comprehensive Free Trade Area (DCFTA).47 The agreements are intended to replace the outdated Partnership and Cooperation Agreements (PCAs), and update and upgrade some of the existing Euro-Med Association Agreements (EMAAs). Contractual relations with the ENP countries for which DCFTAs are too ambitious may be structured in Agreements on Conformity Assessment and Acceptance of Industrial Products (ACAAs).48 Article 217 TFEU provides the specific legal basis for concluding AAs, albeit with third countries belonging to a wider group of partners than just the EU’s geographical neighbours. The difference between Article 8(2) TEU and Article 217 TFEU is that the latter prescribes – in line with the Court’s Demirel judgment – that associations established by such agreements involve reciprocal rights and obligations, common action and special procedures (cf. Art. 218 TFEU).49 Meanwhile, partnership agreements are concluded on the basis of Article 212 TFEU, which states that such agreements pursue the objectives of economic, financial and technical cooperation measures, including assistance, in particular financial assistance, with third countries other than developing countries (e.g. Russia, Kazakhstan). In short, depending on the interpretation of the scope of objectives, the depth of political, security and economic 46

See M Maresceau, ‘A Typology of Mixed Bilateral Agreements’ in C Hillion and P Koutrakos (eds), Mixed Agreements Revisited: the EU and its Member States in the World (Hart Publishing 2010) 19. 47 For an analysis of the three existing AAs/DCFTAs, see M Emerson and V Movchan (eds), Deepening EU-Ukrainian Relations. What, Why and How? (CEPS/IER/Rowman and Littlefield 2016); M Emerson and T Kovziridze (eds), Deepening EU-Georgian Relations. What, Why and How? (CEPS/Reformatics/Rowman and Littlefield 2016); and M Emerson and D Cenusa (eds), Deepening EU-Moldovan Relations. What, Why and How? (CEPS/ExpertGrup/Rowman and Littlefield 2016). More information at . 48 For an in-depth analysis of the ‘specific agreements’ mentioned in Article 8(2) TEU, and indeed the other instruments in the EU’s ample toolbox to shape future relations with countries on its borders, see S Blockmans, The Obsolescence of the European Neighbourhood Policy (Rowman & Littlefield 2017). 49 Case 12/86 Demirel ECLI:EU:C:1987:400.

European Neighbourhood Policy 325 cooperation, the possibility of establishing a visa-free regime, and the extent to which national legislation will be harmonized with the EU acquis, one may argue over the choice of the legal basis and the procedure of adoption of future-generation bilateral agreements between the EU and the ENP countries. Fortunately, the CJEU now has jurisdiction to adjudicate should any disputes arise between the institutions involved in establishing specific agreements with neighbouring countries based on Article 8(2) TEU. Compared to the pre-Lisbon regime, this represents a legal leap forward. So far, there has been no judicial practice with the above-mentioned legal delimitation. The relationship between the ENP and the CFSP has in practice developed mainly in the field of security.

5. PRACTICE As early as June 2003, the Council noted the importance of ‘shared responsibility for conflict prevention and conflict resolution’ among ENP partners and the EU.50 In a 15-item list of ‘incentives’ to implement ENP goals, it prioritized more effective political dialogue and cooperation, intensified cooperation to prevent and combat common security threats, and greater cooperation in conflict prevention and crisis management.51 The Commission’s 2004 ENP Strategy Paper noted a similar ambition and added specific areas of activity beyond political dialogue, namely ‘the possible involvement of partner countries in aspects of CFSP and [C]SDP, conflict prevention, crisis management, the exchange of information, joint training and exercises and possible participation in EU-led crisis management operations’.52 The ENP Action Plans established ‘new partnership perspectives’ over a broad range of activities, including a commitment by neighbouring countries to ‘certain essential aspects of the EU’s external action, including … the fight against terrorism and the proliferation of weapons of mass destruction (WMD), as well as efforts to achieve conflict resolution’.53 Benita Ferrero-Waldner, a former Commissioner for External Relations and the ENP, observed that these partnership perspectives would serve to both strengthen democratic governance in partner states and promote ‘our common foreign policy priorities, like making multilateral institutions more effective, and in addressing our common security threats’.54 The case of Georgia is illustrative of both the potential of and the limits to a nexus between CFSP and the ENP, for it was both a subject of and contributor to the EU’s 50

GAERC, Council Conclusions of 16 June 2003, Press Release No. 10369/03 (Presse 166),

33. 51

ibid. See COM (2004) 373 final, under ‘A more effective political dialogue’. 53 See Communication from the Commission to the Council on the Commission proposals for Action Plans under the European Neighbourhood Policy (ENP) COM (2004) 795 final. The Action Plans are ‘benchmarked roadmaps’ aimed at introducing reforms needed to bring the neighbours closer to the EU. 54 B Ferrero-Waldner, ‘The European Neighbourhood Policy: Bringing Our Neighbours Closer’, speech at the 10th Euro-Mediterranean Economic Transition Conference ‘Giving the Neighbours a stake in the EU internal market’, Brussels, SPEECH/06/346, 6 June 2006. 52

326 Research handbook on the EU’s common foreign and security policy implementation of activities in the foreign and security realm. It was at the receiving end of the mediation efforts conducted by French President Nicolas Sarkozy in his capacity as holder of the rotating Presidency of the Council after the Russo-Georgian war of August 2008. Sarkozy brokered a Six-Point Agreement concluded by the parties on 12 August 2008.55 This Agreement spearheaded the deployment of an EU Monitoring Mission (EUMM Georgia) along the occupation lines of the separatist regions of South Ossetia and Abkhazia, decided upon by the European Council at its extraordinary meeting of 1 September 2008 on the Georgia crisis.56 The Council was tasked to prepare the necessary steps in the context of the European Security and Defence Policy.57 Insofar as the ENP was considered at all, the European Council merely noted that it was ‘more necessary than ever to support regional cooperation and step up [the EU’s] relations with its eastern neighbours’.58 It called upon the Commission to submit a proposal, in particular in the context of the Black Sea Synergy initiative and the envisaged EaP. As such, the EU’s policy (re)actions to the RussoGeorgian war remained hermetically sealed from each other. As a contributor to the CFSP, Georgia has been aligning its foreign policy positions to the CFSP declarations since 2011. In 2014 Tbilisi aligned its position to 47 per cent of the CFSP declarations. In 2015 Georgia joined 221 statements released by the EU in different international organizations.59 Under the terms of its Association Agreement, Georgia has also committed itself to continuing cooperation in crisis management and conflict prevention with a view to eliminating security threats to the EU, based on shared values and interests.60 Georgia is one of the most active non-Member State partners in the CSDP. It contributed to the Immediate Reaction Team of the EU’s Military Advisory Mission in the Central African Republic with 241 personnel, and to the EU Training Mission in Mali. Georgia’s role in the former mission was acknowledged by European Council President Donald Tusk: ‘Georgia’s participation, as the second largest contingent in the operation, has been essential to its success. … Together, we are achieving something very important in a spirit of both global and European solidarity and cooperation’.61 In 2015 Georgia also deployed a representative to the EU Advisory Mission in Ukraine. As for CSDP missions and operations undertaken in the neighbourhood (see Table 15.1), the deteriorating realities on the ground have shown that, so far, the EU has 55

The text of the ‘Protocole d’accord’ is available at . 56

See Presidency Conclusions, Council doc. 12594/2/08 REV 2, 6 October 2008. ibid, point 5. 58 ibid, point 7. 59 Information available at . 60 Contrary to the agreements with Ukraine and Moldova, the EU-Georgia Association Agreement explicitly refers to ‘the principle of host nation consent on stationing foreign armed forces’ on Georgian territory (cf. EUMM Georgia). 61 See ‘Meeting with Georgian troops deployed under the EUFOR CAR CSDP Mission’, available at . 57

European Neighbourhood Policy 327 not been able to achieve a great deal to prevent and counter security threats in its neighbourhood. Table 15.1 CSDP missions and operations in the neighbourhood CIVILIAN MISSIONS

Theatre

Period

Remarks

EU border assistance missions

Moldova/Ukraine

since 2005

~100 int’l staff

Rafah

since 2005

~2 int’l staff

Libya (operating from Tunisia since 08/2014) Palestinian Territories Georgia Georgia Georgia

since 2013

~40 staff

since 2006 2004–2005 since 2008 2005–2011

~70 int’l staff ~10 int’l staff ~200 int’l staff ~13 int’l staff

Ukraine

since 2014

~80 int’l staff

EUFOR

Libya

April–Nov. 2011

EU naval force

South Mediterranean

since 2015

Never operationalized Contributions from 24 Member States

EU police mission EU rule of law mission EU monitoring mission EUSR supporting/assistance mission EU civilian security sector reform MILITARY OPERATIONS

Source: author’s own compilation.

Russia’s annexation of Crimea and destabilization of Donbas have highlighted the inability of the ENP to deal with hard security issues in neighbouring states,62 even if the hybrid EEAS should be able to respond in a comprehensive manner to the ‘civ-mil’ elements that constitute ‘hybrid warfare’.63 Such efforts should start by activating the ‘Crisis Platform’ to coordinate EU and national capabilities in response to crises of all types. In the wake of the downing of Malaysian Airlines flight MH17 over eastern Ukraine, this mechanism failed.64 Arguably, this is rather devastating to the professed importance of EU–neighbours relations. The HR and the European Commission have admitted the need to ‘further reflect on better ways to prevent crises and respond to 62 To be fair, most Western services were caught off guard. See House of Lords, European Union Committee, ‘The EU and Russia: before and beyond the crisis in Ukraine’, 6th Report of Session 2014–15, February 2015 , 25–26. 63 The EEAS incorporates both ENP units that link up to the Commission’s DG NEAR and crisis-management bodies like the EU Military Staff and the EU Intelligence Analysis and Situation Centre (INTCEN), which cooperate with the Member States. 64 For reasons unknown to the author.

328 Research handbook on the EU’s common foreign and security policy fast-changing situations, by adapting its decision-making procedures and, if appropriate, using additional policy instruments’.65 For their part, Member States should show more solidarity with their fellow Council members and reach out more proactively to the EEAS as a hub to coordinate collective crisis response. The latter lament touches upon a fundamental issue: the real test of the EU’s effectiveness in preventing and defusing security threats in the neighbourhood and in responding to crises and post-conflict rehabilitation comes at the level of cohesion among its own Member States.66 When the biggest Member States pursue their own selfish interests in bilateral deals with countries such as Russia, which defines relations with the ‘shared’ neighbourhood as a zero-sum game for ‘spheres of influence’, and when smaller Member States stubbornly block decisions defining EU positions and actions to draw attention to their own concerns, strategic competitors will divide and rule the Union. Internal decision-making procedures in CFSP/CSDP that require unanimity allow any one Member State to block any proposal carried by the others. They also have the potential to put the EU’s conflict prevention, crisis management and dispute settlement efforts out of sync with the conflicts’ own dynamics.67 It is telling that the lack of high-end involvement at EU level stands in sharp contrast to the fact that Member States have been active outside of the EU institutional framework, for instance in support of air strikes against Daesh in Syria carried out by France when it triggered the mutual assistance clause of Article 42(7) TEU in reaction to the terrorist attacks in Paris of November 2015.68 Unless there is a procedural shift towards qualified majority voting in CFSP/CSDP decision-making, such problems will remain.69 But as the drive towards inclusivity in the recently launched permanent structured cooperation (PESCO) shows, such change is not forthcoming any time soon. Decision-making by unanimity will prolong consensus politics and mean that the speed of PESCO, both in capability development and deployment, is determined by the slowest wagon in the train.70 As its own Member States and other international actors step into the fray, the EU will remain condemned to paying the bills for security sector reform ex post facto, an altogether more expensive exercise than conflict prevention. Arguably, a European Union that unites around clearly defined objectives will stand a much better chance of 65

JOIN (2014) 12 final, 17–18. See J Batora, S Blockmans and others, ‘Best Practices in EU Crisis Response and Policy Implementation’ EUNPACK paper, 30 September 2016; and H Dijkstra, P Petrov and E Mahr, ‘Reacting to Conflict: Civilian Capabilities in the EU, UN and OSCE’, EU-CIVCAP paper, 2 November 2016. 67 See, e.g., B Coppieters, ‘The EU and Georgia: Time Perspectives in Conflict Resolution’ EUISS Occasional Paper No. 70, 2007. 68 See C Hillion and S Blockmans, ‘Europe’s Self-Defence: Tous pour un et un pour tous?’ (CEPS Commentary, 20 November 2015). France’s operations Serval in Mali (2013–2014) and Barkhane in the ‘G5 Sahel’ (Burkina Faso, Chad, Mali, Mauritania and Niger; since August 2014) serve the neighbours of the EU’s neighbouring countries. 69 I make the case in Towards an EU Global Strategy – Consulting the Experts (EUISS 2016) 57–58. 70 See S Blockmans, ‘Europe’s Defence Train Has Left the Station – Speed and Destination Unknown’ (CEPS Commentary, 12 December 2017). 66

European Neighbourhood Policy 329 playing a stabilizing role in the neighbourhood and being taken seriously as an honest broker to settle disputes on its borders. In this respect, the adoption of the 2015 ENP Review, the 2016 EU Global Strategy, the 2016–2017 Action Plan to take the EU’s comprehensive approach to external conflicts and crises forward,71 and the 2017 Joint Communication on Resilience,72 are steps in the right direction. But the proof of the pudding will be in the eating.73

6. CONCLUDING REMARKS The inclusion of a specific neighbourhood clause in the Lisbon Treaty is emblematic of the overall reactive nature of the EU’s actions in its neighbourhood, captured by the maxim ‘too little, too late’. The Union’s slow and timid response to conflict and crisis in the neighbourhood illustrates the limits of the innovations to the ENP, not just in the sphere of the attribution of competences and institutional architecture, but particularly in the area of security. Indeed, the policy framework of the ENP does not represent the prism through which to seek concrete solutions to the daunting security challenges emanating from the EU’s outer periphery. Yet the ENP is nowhere if the EU does not get crisis management and conflict resolution right. The EU’s response to the aggression of Putin’s Russia against Ukraine – a repeat of his Georgian playbook in 2008 – is a case in point. Whereas short-term political and economic gains may be made through the ENP, the ‘widgets’ that Russia has created to destabilize the geopolitics of much of the Eastern Partnership remain in place. Conceptually flawed from the beginning, the ENP is still ill-conceived and badly equipped to deal with an unstable environment and the zero-sum gaming neighbours of neighbours. Crisis response and conflict management fall outside the realm of the ENP and a nexus with the CFSP/CSDP might have been presumed but has not materialized. In this respect, Article 8(1) TEU represents a container concept that does not provide the necessary teeth for the Union’s paper ENP tiger to survive in the mercurial neighbourhood. Moreover, the instruments through which the ENP has to be implemented have to be borrowed from other parts of the Treaties, from which Article 8 TEU is disconnected. There is only so much the hybrid positions and bodies created in 71 Joint Staff Working Document, ‘Taking forward the EU’s Comprehensive Approach to external conflicts and crises – Action Plan 2016–17’ SWD (2016) 254 final. 72 Joint Communication from the European Commission and the High Representative to the European Parliament and Council, ‘A Strategic Approach to Resilience in the EU’s external Action’ JOIN (2017) 21 final. 73 Arguably, the legal bases exist already to speed up CFSP decision-making processes, e.g. by moving Member States towards qualified majority voting or constructive abstention, but the use of these mechanisms requires the political will at the level of the European Council. See S Blockmans, ‘Ukraine, Russia and the Need for more Flexibility in EU Foreign Policy-making’ (CEPS Policy Brief No. 320, 25 July 2014). The refugee and migrant crisis has given a new thrust to the development of CSDP in the neighbourhood, as the case of EUNAVFOR MED Sophia shows (see Chapter 14 by Panos Koutrakos). See also S Blockmans, ‘New Thrust for the CSDP from the Refugee and Migrant Crisis’ (Special Report No. 142, CEPS 2016).

330 Research handbook on the EU’s common foreign and security policy accordance with the Lisbon Treaty can do to paper over the legal cracks of EU primary law and forge an integrated policy towards the neighbourhood. In order to bridge the gap between the rather naive-looking ambition stated in the Treaty and the worsening realities on the ground, European policymakers had no choice but to instil more realism into the implementation of the obligation to tactically work towards attaining the goals prescribed by Article 8(1) TEU. The 2015 Review of the ENP has tried to abandon the enlargement methodology in favour of managing relations between the EU and all of its neighbours more pragmatically. The Review recognizes that ‘not all partners aspire to comply with EU rules and standards’ and reflects ‘the wishes of each country concerning the nature and scope of its partnership with the EU’.74 Apart from the introduction of more differentiation and mutual ownership in the implementation of the ENP, the European Commission and the HR put more emphasis on political and economic ‘stabilization’ – a term which has since been replaced by the notion of ‘resilience’.75 The services’ adoption of this buzzword reflects the shift in debate about the nature of EU engagement with third states, and neighbouring countries in particular. It de-emphasizes the goal of transformation that formed the bedrock of the ‘old’ ENP and replaces it with support for the ability to withstand systemic shocks and threats at both the state and societal level. By prioritizing security interests over values in increasingly transactional partnerships, the policy now takes a more pragmatic approach to improving relations with neighbouring countries. Whereas the fuzziness of the term ‘resilience’ is helpful for diplomats, as it allows them to back-peddle when political circumstances change, the vagueness of the concept and the flexibility with which policy objectives can be (re-)interpreted hinder those who have to implement the ENP in the countries concerned, with the instruments and budgets at their disposal. Arguably, without the political will to mobilize the necessary security and financial resources to tackle the region’s multiple crises, and without a strategic vision to guide relations with the neighbours of the EU’s neighbours,76 the ENP remains in suspended animation. Moving away from the idealistic goals set out at its launch in 2004 and codified in the 2009 Lisbon Treaty, the ENP currently represents little more than an elegantly crafted fig leaf that purports to be a framework for a comprehensive soft-power approach to the EU’s outer periphery, but masks an inclination towards a more hard-nosed Realpolitik whose heterogeneous practice makes it hard to distinguish from foreign policy in the traditional sense of the term, i.e. a variegated set of bilateral strategies in the pragmatic pursuit of the EU’s interests.77

74

JOIN (2015) 50 final (n 4). JOIN (2017) 21 final (n 72). 76 The 2015 ENP Review largely remains silent on this matter. The main message in JOIN (2015) 50 final is that the new ENP ‘will seek to involve other regional actors, beyond the neighbourhood, where appropriate, in addressing regional challenges’. Bilateral relations with Russia can only materialize ‘when conditions allow’; with regard to Iran ‘as [soon as] the recent [nuclear] deal is implemented’. China’s ‘Belt and Road’ initiative has to be read between the lines, even if it is gaining traction in some Eastern Partnership states (e.g. Georgia). 77 For more on all of this, see S Blockmans, The Obsolescence of the European Neighbourhood Policy (Rowman & Littlefield 2017), on which the text of this chapter rests. 75

16. The nexus between Common Foreign and Security Policy and energy policy Theodore Konstadinides and Despoina Mantzari

1. INTRODUCTION Energy policy has always been part of the DNA of the European Union (EU) since its inception as a European Coal and Steel Community (ECSC) in 1951, and European Atomic Energy Community (EURATOM) in 1957. The focus was twofold: on the one hand, the ECSC paved the way for a single coal and steel market and, on the other hand, the EURATOM established a nuclear safety framework.1 While the EU is still very much focused on maintaining an integrated internal energy market, the scope of energy policy has expanded considerably from its market liberalization origins. At present, security of supplies lies at the core of EU energy policy in the CFSP. Beyond cross-border coordination and integration in energy trade there is an important foreign policy component to EU energy policy which has in recent years become more prominent due to European dependence on Russia and the need to manage external security and supply risks (of imported natural gas in particular) in Europe’s immediate and wider neighbourhood. Last but not least, CFSP is important in coordinating the variations in current EU Member States’ attitudes to security and energy policy. Hungary’s recent deal to expand its Paks nuclear power station using Russian technology and financing demonstrates that some Member States are far from reducing reliance on Russian energy.2 Energy security is about the EU’s capacity to secure access to energy supplies in order to correspond to the energy needs of its Member States. Especially the need to avoid potential gas shortages became more prominent following Russia’s annexation of Crimea in 2014. Security of energy supply therefore constitutes one of the key aims of EU energy policy according to Article 194(1)(b) TFEU. The EU has become increasingly involved in securing access to energy supplies from abroad and responding to the energy needs of its Member States. In this internal and external policy context, energy policy has gradually obtained a coercive character as the EU is looking not only for reliable and sustainable energy partners, but also for partners which can comply with its regulatory framework. In order to ensure compliance, the EU has sought to become able to impose rigorous sanctions against both its Member States (e.g. for negotiating

1

See especially Articles 31, 32 Euratom. Andrew Byrne, ‘EU approves Hungary’s Russian financed nuclear station’, Financial Times (6 March 2017) accessed 11 September 2017. 2

331

332 Research handbook on the EU’s common foreign and security policy supply contracts without consulting the EU) as well as third countries (e.g. against external partners such as Russia for its activities in Ukraine, which undermine EU values). As the title suggests, the purpose of this chapter is to discuss the nexus between CFSP and energy policy. It explores the legal issues about EU energy competence, highlights the increasing prominence of energy security in CFSP, and finally places emphasis on the security dimension that exists in internal market energy regulation. The latter aims to provide a counterpoint: it is argued that, while energy policy has become more prominent in CFSP, security also underlies non-CFSP (in this case, competition) policy. The externalization and securitization of the EU’s internal energy market and the light that such a development sheds on CFSP are, therefore, important components of this chapter. We will be arguing that there is a strong link between securitization and competitiveness. In this regard, we will point out the EU’s capacity to externalize its internal market policies both inside and outside the contours of CFSP by providing an overview of the existing CFSP framework and insight on the extraterritorial application and force of EU competition law to achieve CFSP objectives.

2. ENERGY POLICY COMPETENCE IN CFSP This section will focus on the relevant competence provisions pertaining to EU external energy policy. Knowledge about the EU’s respective legal bases will help the reader shape a more informed view about the EU’s CFSP opportunities. These include, inter alia, implementing effective initiatives in order to reduce import dependency from Russia (which comprises one-third of the EU energy bill) and promoting resilience against future external energy shocks or disruptions. It is argued that a legal competence in the field of EU external energy policy is key to the success of CFSP. This is particularly pertinent because since its inception EU energy policy has been characterized by a rather rickety legal competence framework, which is due to the lack of an explicit legal basis in the Treaty regarding the adoption of legislation in the field – whether internally or externally. 2.1 Energy Policy as a New Field of Legal Competence The EEC Treaty did not provide an express legal basis that would enable the EU to adopt energy measures and subsequently push for internal energy market liberalization. What the Treaty provided instead was a host of leges speciales that enabled the EU legislature to regulate the Single Market or certain leges generales to pursue supranational objectives such as building an internal energy market, reducing carbon emissions, and setting renewable energy and efficiency targets. It was not until the Treaty of Lisbon that ‘energy policy’ featured in the Treaty proper as an area of EU competence under Article 4(2)(i) TFEU while Article 194 TFEU created a new competence in the field of energy which is now shared between the EU and the Member States. It states the following:

The nexus between CFSP and energy policy 333 1.

In the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States, to: (a) ensure the functioning of the energy market; (b) ensure security of energy supply in the Union; (c) promote energy efficiency and energy saving and the development of new and renewable forms of energy; and (d) promote the interconnection of energy networks.

2.

3.

Without prejudice to the application of other provisions of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the measures necessary to achieve the objectives in paragraph 1. Such measures shall be adopted after consultation of the Economic and Social Committee and the Committee of the Regions. Such measures shall not affect a Member State’s right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply, without prejudice to Article 192(2)(c). By way of derogation from paragraph 2, the Council, acting in accordance with a special legislative procedure, shall unanimously and after consulting the European Parliament, establish the measures referred to therein when they are primarily of a fiscal nature.

Like many other TFEU provisions, Article 194(1) TFEU is not explicit about covering exclusively the internal dimension of EU energy policy, therefore leaving open the possibility of employing it in order to achieve CFSP objectives. Having said that, it needs to be stressed that, from the perspective of the EU legislature, describing a measure as internal or external may carry significant repercussions for EU competence in terms of setting the tone with regard to the choice of legal basis for future acts in the field of energy and the relevant institutional participation through the voting procedure.3 Any demarcation lines would have to be drawn in litigation by Luxembourg judges reading any secondary legislation adopted under Article 194 TFEU in the light of Article 40 TEU. As is known, the latter constitutes a ‘mutual’ non-affectation clause triggered when a legal act touches upon both CFSP and non-CFSP fields. Due to the lack of express preference in Article 40 TEU (as modified by the Lisbon Treaty) for either CFSP or non-CFSP legal bases, CJEU judges will have the opportunity to adjudicate on whether an alleged Article 194(1) TFEU act on energy is in fact a CFSP act and vice versa. They will therefore act as referees in terms of drawing the boundaries between the TEU and TFEU by upholding the non-affectation clause of Article 40 TEU.4 3 For instance, the CJEU has held that a Regulation on ‘smart sanctions’ was rightly based on Article 215(2) TFEU, thereby rejecting the European Parliament’s argument that the measure ought to have been taken on the basis of Article 75 TFEU, which ensured a greater degree of parliamentary participation through the ordinary legislative procedure. See Case C-130/10 European Parliament v Council ECLI:EU:C:2012:472. 4 See in this regard Alan Dashwood, ‘Article 47 and the Relationship between First and Second Pillar Competences’ in Alan Dashwood and Marc Maresceau (eds), Law and Practice of EU External Relations (CUP 2008) 99; Piet Eeckhout, ‘The EU’s Common Foreign and Security Policy after Lisbon: From Pillar Talk to Constitutionalism’ in Andrea Biondi and Piet Eeckhout (eds), EU After Lisbon (OUP 2012) 272.

334 Research handbook on the EU’s common foreign and security policy It remains to be seen how the CJEU would go about resolving future borderline legal bases cases where an act under Article 194(2) TFEU pursues a mixed objective.5 This has become a real possibility in the post-Lisbon dispensation. Although energy security has for a while been a marginal competence and until recently rarely invoked by the EU’s High Representative or the External Action Service,6 this has now changed following the gradual externalization of the EU’s internal targets, which means that the EU can now adopt autonomous instruments in the field of energy security (under Article 194 TFEU) as well as conclude international agreements (e.g. bilateral agreements with third countries) to this end. We will consider each of these in turn. 2.2 Autonomous Instruments in the Field of Energy Security As soon as the Treaty of Lisbon came into force, the EU institutions made use of the new energy competence under Article 194 TFEU in 2010 and adopted a Regulation (994/2010) on security of gas supply under Article 194(2) TFEU requiring Member States to put in place internal measures with a view to creating an action plan (prevention and emergency).7 Yet the introduction of the new energy competence came with a caveat. Article 194(2) TFEU reduces the pre-emptive effect of EU legislation in the field of energy by confirming that the adoption of measures which ‘affect a Member State’s right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply’ is prohibited. Accordingly, EU secondary legislation on the exploitation of the Member States’ energy resources can only be adopted on the basis of other, non-energy-specific provisions, such as by unanimous decision of the Council in accordance with Article 192(2)(c) TFEU. According to this provision, by way of derogation from the ordinary legislative procedure, the Council can adopt environment measures significantly affecting a Member State’s choice between different energy sources and the general structure of its energy supply. Despite the restrictive scope of energy competence described above, it is worth reiterating that it is due to the Lisbon Treaty reforms that the EU acquired the constitutional and institutional capacity to act collectively on behalf of its Member States in the field of energy. Such an empowerment has helped in gradually shaping the EU’s external profile in the field of energy. For instance, one may identify CFSP links in otherwise non-CFSP EU secondary legislation adopted under the new energy competence of Article 194 TFEU. For instance, Regulation 994/2010 on security of gas supply adopted under Article 194(2) TFEU is a case in point. In particular, while the Regulation imposes substantive obligations on the Member States, such as to ensure 5 See, for instance, in the context of energy, B Van Vooren, ‘EU External Energy Policy’ in M Trybus and L Rubini (eds), Treaty of Lisbon and the Future of European Law and Policy (Edward Elgar Publishing 2012) 301. 6 Bart Van Vooren, ‘Europe Unplugged: Progress, Potential and Limitations of EU External Energy Policy Three Years post-Lisbon’ (Sieps working paper 2012) 5 accessed 14 July 2017. 7 Regulation (EU) No 994/2010 concerning measures to safeguard security of gas supply and repealing Council Directive 2004/67/EC [2010] OJ L295/1, Art. 4.

The nexus between CFSP and energy policy 335 bi-directional capacity of gas infrastructure (Articles 6 and 7), it also makes reference to ‘energy security’ as an aspect of EU security policy in its Preamble: The Report on the Implementation of the European Security Strategy … highlights the growing reliance on imported energy as a significant additional risk for the Union’s security of energy supply and stresses energy security as one of the new challenges for security policy. The internal gas market is a central element to increase the security of energy supply in the Union, and to reduce the exposure of individual Member States to the harmful effects of supply disruptions.8

The CFSP undertone of legislative activity under the TFEU is due primarily to the EU’s reliance on imported energy. Having said that, the Regulation on security of gas supply does not establish a parallel external competence in the field of energy security. It boosts, however, the presence of energy in the EU foreign policy terrain, which is strengthened further by the conclusion of international agreements and other aspects of external relations law, such as restrictive measures – an important tool of CFSP. 2.3 Conclusion of International Agreements Although the Treaty remains silent on energy as an aspect of EU external policy, international agreements on energy can be concluded through recourse to Article 24 TEU (EU competence in matters of CFSP) and Article 37 TEU (conclusion of agreements with one or more countries). There are certain limitations as pointed out by Article 37 TEU, which states that the EU may only conclude international agreements in areas covered by the Treaty’s CFSP Chapter. Article 37 TEU can be read in the light of Article 23 TEU (EU action on international scene) and Article 24 TEU (CFSP competence). Article 23 TEU, in particular, states that CFSP action shall be guided by the principles in Article 3 TEU (promotion of EU values) and the objectives inherent in Article 21 TEU (democracy, rule of law, human rights). Yet none of these values or objectives explicitly mentions ‘energy security’. Even if an ‘energy security’ competence is not, therefore, granted to the EU expressly in the TEU, the EU institutions can resort to their implied external powers under Article 216(1) TFEU.9 Like Article 194 TFEU, Article 216(1) TFEU was also introduced by the Lisbon Treaty in a shorthand attempt to codify the ECJ’s voluminous case law on the EU’s external implied powers. In summary, Article 216(1) TFEU constitutes a residual competence under which the EU may conclude international agreements with third parties in the following three situations: (i) where the Treaties so provide; (ii) where the conclusion of an agreement is necessary in order to achieve, within the framework of the EU’s policies, one of the objectives referred to in the Treaties (also known as the principle of necessity); and (iii) [where the conclusion of an 8

ibid, Preamble 11. The Treaty only provides for express provisions regarding the EU’s legal personality (Article 47 TEU), the capacity to negotiate agreements with third countries or international organizations (Article 218 TFEU) and the possibility to pursue common policies and actions to safeguard EU values, fundamental interests, security, independence and integrity (Article 21(a) TEU). 9

336 Research handbook on the EU’s common foreign and security policy agreement] is provided for in a legally binding EU act or is likely to affect common rules or alter their scope. To clarify, Article 216(1) TFEU does not on its own provide a substantive legal basis for external energy policy with a CFSP flavour. It rather enables the EU to conclude international treaties on, inter alia, energy efficiency and renewables (governed by Article 194 TFEU); security of supply (Article 122 TFEU); energy networks (Articles 170–172 TFEU) or nuclear energy (Euratom Treaty), which may have a varying impact on CFSP. The conclusion of international agreements on energy policy under the EU’s residual competence of Article 216(1) TFEU may, conversely, impact upon the competence of Member States to negotiate and conclude their own energy deals. For instance, the Commission’s recent request for a Council mandate to negotiate with Russia an agreement on the Nord Stream 2 pipeline is indicative of the EU’s ambition that future infrastructure projects are operated in line with EU rules rather than ‘in a legal void or according to a third country’s energy laws only’.10 These rules mandate, inter alia, transparency in pipeline operation, non-discriminatory tariff-setting and third-party access. In this regard, the ECJ’s role in clarifying whether EU international action is necessary to achieve the objectives set for EU energy policy will be crucial both for the extent of future energy treaties concluded by the EU and more broadly for the development of external energy policy in CFSP. The ECJ’s case law on implied powers is well known and has been discussed elsewhere.11 Suffice it to say here that the EU’s growing internal competence to act autonomously in the field of energy will have an undeniable effect in the way EU institutions advance EU external energy policy. Of course, certain key elements of energy policy, such as the choice of energy sources, remain a national competence and for Member States to decide. Having said that, Member States shall exercise their exclusive powers by paying due regard to their obligations stemming from EU membership. The ECJ’s previous jurisprudence has been effective in managing mixity in external action by pointing Member States to the duty of sincere cooperation enshrined in Article 4(3) TEU and the requirement of unity in the EU’s international representation. At another level, we have witnessed some judicial self-restraint where the CJEU is also prepared to recognize mixity as a means of safeguarding national competences.12 In light of the above, it can be said that EU external energy policy in CFSP is now well established. Apart from what has already been mentioned, the nexus between energy policy and CFSP is also the product of a range of parallel external policy developments such as the proliferation of export and import of energy products from and to third countries, which falls within the scope of EU Common Commercial Policy 10 See European Commission Press Release of 9 June 2017 accessed 26 July 2018. 11 The ECJ has clarified the EU’s implied competence used widely to conclude agreements in the field of transport, safety in the workplace, commercial policy in respect of services and the recognition of judgments in civil and commercial matters. See for more detail Theodore Konstadinides, ‘EU Foreign Policy under the Doctrine of Implied Powers: Codification Drawbacks and Constitutional Limitations’ (2014) 39(4) EL Rev 511. 12 See Theodore Konstadinides, ‘In the Union of Wine: Loose Ends in the Relationship between the European Union and the Member States in the Field of External Representation’ (2015) 21(4) European Public Law 679.

The nexus between CFSP and energy policy 337 (CCP) – an EU exclusive competence. In particular, Article 207 TFEU grants the EU the power to conclude tariff and trade agreements and adopt autonomous measures with regard to all aspects of CCP (goods, services, commercial aspects of intellectual property).13 What is more, energy-related aspects can become part of Enhanced Partnership and Cooperation Agreements (Enhanced PCAs). These are individual international cooperation mechanisms predominantly concerned with establishing a free trade area. PCAs were originally concluded as mixed (cross-pillar) agreements between the EU, the Member States and the newly independent states that emerged after the fall of the Soviet Union.14 They are now concluded on the basis of Article 212 TFEU, which provides that ‘the Union shall carry out economic, financial and technical cooperation measures, including assistance, in particular financial assistance, with third countries other than developing countries’.15 Some of these Agreements have provided the framework for further integration of the partner country with the EU market for goods and services and modernization of energy infrastructure.16 For instance, in December 2011 the EU and Ukraine established a political association and economic agreement and replaced the original PCA which had been in force since 1998. The EU–Ukraine AA/DCFTA (Association Agreement including a Deep and Comprehensive Free Trade Area), applicable since January 2016, has provided for alignment of Ukraine’s legislation to EU standards in trade-related energy aspects, including investment, transit and transport.17 Conversely, the EU–Russia PCA expired in 2007 and negotiations on a new EU–Russia Agreement were suspended in 2014 due to Russia’s actions destabilizing the situation in Ukraine.18 Article 65 dealt specifically with energy, mandating that cooperation in this field be carried out ‘within the

13

See Sanam S Haghighi, Energy Security: The External Legal Relations of the EU with Major Oil and Gas Supplying Countries (Hart Publishing 2007) 112. 14 Borrowing from C Hillion, G De Baere calls these agreements ‘proto cross-pillar’ because at the time PCAs were concluded, the EU did not have legal personality to enter into treaties (they were concluded on behalf of the EC). Yet again PCAs provided a model for bridging cross-pillar objectives such as promoting trade and combating crime. Post Lisbon, cross-pillar mixed agreements declined because all international agreements are now signed by the EU. Still, however, a certain fuzziness is maintained in lieu of the retention of CFSP in the TEU and thus its firm separation from the rest of the TFEU policy areas. See Geert De Baere, Constitutional Principles of EU External Relations (OUP 2008) 297. 15 See, for an extensive study of PCAs, Christophe Hillion, The Evolving System of EU External Relations as Evidenced in the EU Partnerships with Russia and Ukraine (Ph.D thesis, Leiden University 2005). 16 See new Enhanced PCA with Kazakhstan ([2016] OJ L29/3) and talks on a new agreement with Azerbaijan (see EEAS Action Plan accessed 11 September 2017). 17 The EU–Ukraine AA/DCFTA forms part of the EU–Ukraine Association Agreement [2014] OJ L161/3. 18 For more information on the state of EU–Russia relationship see European Union Committee, The EU and Russia: Before and Beyond the Crisis in Ukraine (HL 2014–15, 115) accessed 14 July 2017.

338 Research handbook on the EU’s common foreign and security policy principles of market economy and the European Energy Charter, against the background of progressive integration of the energy markets in Europe’.19 Nonetheless, the PCA instrument has not been as significant as other developments aiming at pursuing a market economy in the Russian energy markets, such as the Energy Charter Treaty.20 The Energy Charter Treaty was adopted in 1994 and is the only major multilateral treaty in the energy sector. It aims to build a legal framework for global energy security, based on the principles of open, transparent and non-discriminatory energy markets and transit systems. However, the significance of the Energy Charter Treaty decreased after Russia indicated that it would not ratify it. Yet it remains the EU’s primary international instrument in the area despite the emergence of the Energy Community Treaty in 2005. Overall, the legal obligations contained in these Treaties are quite thin and mostly relate to trade.21 Additionally, the Council recently extended economic sanctions targeting the financial, energy and defence sectors of the Russian economy until 31 January 2018. Such sanctions include limiting access to EU primary and secondary capital markets for major Russian energy companies.22 We will now turn to consider sanctions as a tool to promote the objectives of CFSP and their impact on EU energy policy. 2.4 Other Aspects of External Relations Law: Imposition of Sanctions The CFSP powers to weave a web of sanctions (also known as restrictive measures) are crucial to EU external action – particularly the EU’s competence on CCP and the suspension of the EU–Russia negotiations. Such sanctions may have a practical impact on the energy sphere – for instance through the wide prohibition on investment in energy sectors against Russia or Iran.23 The trade (CCP) and foreign policy (CFSP) overlap can hardly be overstated in the imposition of economic sanctions employed to achieve EU foreign policy objectives.24 Article 215 TFEU provides the legal basis for 19

See Article 65(1) of the Agreement on partnership and cooperation. Council and Commission Decision of 23 September 1997 on the conclusion, by the European Communities, of the Energy Charter Treaty and Energy Charter Protocol on energy efficiency and related environmental aspects (98/181/EC, ECSC, Erratum) [1998] OJ L69. 21 Kim Talus, EU Energy Law and Policy (OUP 2013) 219. 22 See Council of the EU, List of persons and entities under restrictive measures over the territorial integrity of Ukraine accessed 11 September 2017. 23 Such economic and financial sanctions include prohibition on the import of crude oil, natural gas, petrochemical and petroleum products; prohibition on the sale or supply of key equipment used in the energy sector, gold, other precious metals and diamonds, certain naval equipment, certain software, etc. See for a summary of restrictive measures the relevant links on the Council’s website: ‘EU Restrictive Measures in response to the crisis in Ukraine’ accessed 14 July 2017; ‘EU Restrictive Measures against Iran’ accessed 14 July 2017. See also Chapter 10 in this volume, which points out that the only legal bridge between CFSP and TFEU is in the field of sanctions (state and individual/‘smart’). 24 See for a detailed study on CCP, Dorota Leczykiewicz, ‘Common Commercial Policy: The Expanding Competence of the European Union in the Area of International Trade’ in Philipp Dann and Michal Rynkowski (eds), The Unity of the European Constitution (Springer 2006). See for a comparison with CFSP, Finn Laursen, ‘The EU’s External Action according to the Lisbon 20

The nexus between CFSP and energy policy 339 the interruption or reduction, in part or completely, of the EU’s economic and financial relations with one or more third countries, where such sanctions are necessary to achieve the objectives of the CFSP.25 As mentioned, the EU has widened the legal basis for restrictive measures, most recently against Russia.26 In this respect, the role of the CJEU to determine the scope of restrictive measures and the judicial remedies available to individuals is important. Recent litigation has shed light on the CJEU’s limited jurisdiction pursuant to Article 24(1) TEU and Article 275(2) TFEU respectively. In Rosneft, for instance, the CJEU held that the provisions of Articles 19, 24 and 40 TEU, Article 275 TFEU as well as Article 47 of the EU Charter of Fundamental Rights must be interpreted as meaning that the CJEU has jurisdiction to give preliminary rulings on the validity of acts adopted on the basis of CFSP provisions, such as those concerning restrictive measures against Russia, provided that the request for a preliminary ruling relates either to monitoring their compliance with Article 40 TEU, or to reviewing their legality against natural or legal persons.27 So far we have discussed the legislative capacity of the EU to act collectively on behalf of its Member States in the field of energy and the CFSP undertone of legislative activity under the TFEU. We also considered how international agreements on energy can be concluded, mentioning that ‘energy security’ competence is not granted to the EU expressly in the TEU – hence the EU institutions can resort to their implied external powers for this purpose. Energy security has featured prominently with regard to the interplay between national and supranational energy policies, and the quality of EU relations with Russia. We have not, however, examined the background and the way in which CFSP has been used in terms of energy security. This is the subject matter of the next section, which also helps to illustrate the assimilation between internal and external EU policies as far as energy policy is concerned.

3. THE INCREASING PROMINENCE OF ENERGY SECURITY IN CFSP This section serves to illustrate the increasing prominence of energy security in CFSP – a component which has brought EU foreign policy closer to the EU’s internal market mentality towards potential TFEU–TEU cross-fertilization through legislative basis interplay and more active involvement of the EU political institutions in policy-shaping, monitoring and future enforcement. While this section alludes to the erosion of the Treaty: Institutional Choices and their Explanation’ in Maciej Wilga and Ireneusz Karolewski (eds), New Approaches to EU Foreign Policy (Routledge 2014). 25 See for a detailed account accessed 14 July 2017. 26 See Council of the EU, ‘Ukrainian Crisis: EU broadens remit of sanctions’ Press Release ST 12038/14; Council of the EU, ‘Russia: EU prolongs economic sanctions by six months’ Press Release 414/17. 27 Case C-72/15 PJSC Rosneft Oil Company v Her Majesty’s Treasury and Others ECLI:EU:C:2017:236. See also Chapter 4 in this volume.

340 Research handbook on the EU’s common foreign and security policy schism between the internal and the external – at least as far as energy policy is concerned – it also points, first, to the inherent limitations of CFSP as a means for the EU to speak and act as one in world affairs and, second, to the conceptual shortcomings of energy security. For instance, it is argued that while energy security is at the forefront of international and European politics, it can hardly be contained within a single legislative framework. In a Europe devastated by the Second World War, energy was very much tied to national sovereignty, and state-owned, vertically integrated energy monopolies were established as the main vehicle to rebuild the countries’ economies. In contrast to the slow progress made in the creation of a single market for energy, measures to promote energy security were put in place from the very beginning of European integration, rendering security of supply the main pillar of a common energy policy.28 This development was due to the major oil crises (i.e. the Suez Crisis in 1956–1957; the OPEC oil crisis in 1970), which exposed, to varying degrees, the EU’s dependency on energy imports of oil, gas, coal and electricity. EU dependency on energy imports in turn triggered efforts to create an EU-wide emergency system, which continues to evolve.29 More recent initiatives in the fields of renewable energy,30 energy efficiency31 28 See Decision 68/416/EEC on minimum stocks of crude oil and petroleum products and Council Directive 73/238/EEC of 24.6.1973 on measures to mitigate the effects of difficulties in the supply of crude oil and petroleum products, [1973] OJ L228, 1. 29 Directive 68/414 of 20 December 1968 imposing an obligation on Member States of the EEC to maintain minimum stocks of crude oil and/or petroleum products [1968] OJ L308/14 was promulgated as a response to the second Suez crisis. The 1968 Directive was subsequently amended by Directives 72/425/EEC of 19 December 1972 [1972] OJ L291/154 and 98/93/EC [1998] OJ L358/100, both of which were later codified by Directive 2006/67/EC [2006] OJ L217/8. The current legislation in force is contained in Directive 2009/119/EC [2009] OJ L265/9. Other measures include Regulation (EEC) No 1055/72 of the Council of 18 May 1972 concerning notification of imports of crude oil and natural gas [1972] OJ L120/3; Regulation (EEC) No 1056/72 of the Council of 18 May 1972 on notifying the Commission of investment projects of interest to the Community in the petroleum, natural gas and electricity sectors [1972] OJ L120/7; Directive concerning measures to weaken the impact of difficulties of supply with oil and oil products [1973] OJ L228. The Community developed its own emergency system in light of the oil shocks at the end of the 1970s and in the wake of the Iranian revolution and subsequent war with Iraq by adopting two decisions: one on the export of crude oil and petroleum products from one Member State to another in the event of supply difficulties (Council Decision 77/186/EEC [1977] OJ L61/23, as amended by Decision 79/879/EEC [1979] OJ L250/58) and another to cut back consumption of primary energy resources in the case of supply difficulties (Council Decision 77/706/EEC [1977] OJ L292/9, implemented by Commission Decision 79/639/EEC [1979] OJ L183/1). During the 1970s oil crisis, a limitation of Article 34 regarding free and competitive trade through EU secondary legislation was tolerated in light of security of supply fears, see Council Directive 77/186/EEC [1977] OJ L61/23 amended by Council Decision 79/879/EEC [1979] OJ L270/58; these provisions have since been abolished. 30 Proposal for a Directive amending Directive 98/70/EC relating to the quality of petrol and diesel fuels and amending Directive 2009/28/EC on the promotion of the use of energy from renewable sources COM/2012/0595 final – 2012/0288. 31 Commission, ‘Mobilising public and private finance towards global access to climatefriendly, affordable and secure energy services: The Global Energy Efficiency and Renewable Energy Fund’ (Communication) COM (2006) 583 final.

The nexus between CFSP and energy policy 341 and the ongoing efforts to further develop a well-functioning and well-integrated internal energy market32 are also aimed at securing energy supply. Similarly, in the light of recent geopolitical threats and vulnerabilities within the EU and the wider European region, energy policy in the CFSP context has naturally focused on energy security. Indeed, energy security features high on the political agenda of EU foreign policy, gradually becoming a political priority for the establishment of a resilient Energy Union that will serve a tripartite purpose: provide the citizen with secure, sustainable, competitive and affordable agency; induce concerted action by Member States acting in a spirit of mutual solidarity and trust; and speak with one voice in global affairs.33 As mentioned, EU political consensus on energy actorness, cohesiveness and effectiveness with energy security at the epicentre of EU internal and external action is hardly a novelty. Almost ten years ago, in his capacity as High Representative for the CFSP, Javier Solana highlighted the importance of CFSP in establishing a ‘united policy on energy questions’.34 Likewise, in its Green Paper of March 2006, while recognizing the importance of the realization of its internal energy market, the Commission stressed that ‘Member States should promote the principles of the internal energy market in bilateral and multilateral fora, enhancing the Union’s coherence and weight externally on energy issues’.35 Last but not least, the 2008 review of the European Security Strategy, which provided the CFSP’s conceptual framework, emphasized that given the EU’s energy dependence increase (which was predicted to reach 75 per cent by 2030) ‘our response must be an EU energy policy which combines external and internal dimensions’.36 The above milestones serve to illustrate that, even prior to the Treaty of Lisbon, the focus was on a coherent approach to ensuring energy security as a part of the CFSP. For instance, in 2006 the Commission set out in a Communication a new approach to European trade policy priorities under the broad title ‘Global Europe’. Energy was a central component of its strategy. As global demand increases and Europe becomes more dependent on external energy sources, the EU needs to go further in developing a coherent policy for competitive, secure and sustainable energy. Internally, this means completing a competitive, EU-wide energy market and promoting a sustainable, efficient and diverse energy mix. Externally, we should seek to 32

European Commission, ‘Towards Energy Union: The Commission presents sustainable energy security package’ (16 February 2016) accessed 14 July 2017. See, in particular, the legislative proposal for the review of the Regulation on Security Supply, which aims to increase the transparency of natural gas supply contracts in the EU accessed 14 July 2017. 33 See Commission, ‘A Framework Strategy for a Resilient Energy Union with a ForwardLooking Climate Change Policy’ (Communication) COM 2015 080 final. 34 Javier Solana, ‘Energy in the Common Foreign and Security Policy’ in Greg Austin and Marie-Ange Schellekens-Gaiffe (eds), Energy and Conflict Prevention (Madariaga European Foundation 2007). 35 Commission, ‘External energy relations – from principles to action’ (Communication) COM (2006) 590 final. 36 European Council, ‘Report on the Implementation of the European Security Strategy – Providing Security in a Changing World’, Brussels, 11 December 2008, S407/08.

342 Research handbook on the EU’s common foreign and security policy improve transparency, governance and trade in the energy sector in third countries through non-discriminatory conditions of transit and third party access to export pipeline infrastructure; and by helping to improve production and export capacities and develop energy transportation infrastructure. Diversity of source, supply and transit is essential to our internal and external policies.37

More recently, the 2014 European Energy Security Strategy set the tone for energy security as an EU objective and its related foreign policy dimension in responding to the high EU dependence on energy imports through, inter alia, building emergency and solidarity mechanisms, switching to alternative fuels and increasing energy production in the EU.38 These proposals were also echoed in the 2016 EU Global Strategy, the motto of which is ‘joining up internal and external policies’,39 and the 2017 Joint Communication on Resilience, which focuses on energy security and the neighbourhood, viz. the need to strengthen the EU’s resilience on energy security, hybrid threats and strategic communication.40 In this respect, it is also worth mentioning the 2014 Energy Union Initiative, which placed emphasis on strengthening the hand of the Commission in intergovernmental agreements in order to ensure that future agreements are in compliance with EU law.41 The package also outlined the intention of the Commission to review the 2012 Intergovernmental Agreements Decision (994/2012/ EU), which established an information exchange mechanism with respect to energy agreements between Member States and third countries.42 This Decision provides that Member States should submit to the Commission all the intergovernmental agreements they have concluded within the meaning of Article 25 of the Vienna Convention on the Law of Treaties. The review of the Intergovernmental Agreements Decision will focus on ensuring that the Commission has the power to, inter alia, ensure agreements are compatible with EU legislation before negotiations are concluded and securing the involvement of the Commission in such negotiations. It is important to note that in its statement on subsidiarity in the proposal for a new Intergovernmental Agreements Decision, the Commission has acknowledged that ‘the Decision stands at the cross-roads of the external dimension (as it involves agreements with third countries) and of the internal market (as non-compliant provisions such as destination clauses have a negative impact 37

European Commission, ‘Global Europe, A Contribution to the EU’s Growth and Jobs Strategy’ (4 October 2006) 7 accessed 14 July 2017. 38 European Energy Security Strategy COM (2014) 330 final. 39 See for more information accessed 14 July 2017. 40 Commission, ‘A Strategic Approach to Resilience in the EU’s External Action (Joint Communication)’ JOIN (2017) 21 final accessed 14 July 2017. 41 Commission, ‘A Framework Strategy for a Resilient Energy Union with a ForwardLooking Climate Change Policy (Communication)’ COM (201) 080 final. 42 The Commission produced a proposal to that effect on 16 February 2016. See Commission, ‘Proposal for a Decision on establishing an information exchange mechanism with regard to intergovernmental agreements and non-binding instruments between Member States and third countries in the field of energy and repealing Decision No 994/2012/EU’ COM (2016) 053 final.

The nexus between CFSP and energy policy 343 on the free flow of energy products within the internal market)’.43 The Commission therefore identified a clear added value to reinforce the cooperation and transparency at EU level in the framework of this proposal.44 Addressing the EU’s reliance on external sources for its energy needs has inevitably created a strong linkage between the EU internal market and foreign policy, with energy security as the common denominator. There are still open questions, however, with regard to the deployment of external instruments as a means to tackle energy security issues. For instance, political aspirations for the establishment of an Energy Union are constrained by CFSP legal limitations on EU lawmakers. There are both institutional/procedural and conceptual limitations. First, as is well known, CFSP is unique in a number of respects, not least for the limited role of EU supranational institutions and majoritarian decision-making, which is still far from superseding national foreign policies. Also, as noted earlier, any ambition related to CFSP future action on energy security has to be balanced against the existing limitations of the internal market competence on energy. As mentioned above, Article 194(2) TFEU secures the right of Member States to determine the conditions for exploiting their energy resources. This is crucial especially when it comes to energy security viz. the conclusion of international treaties on, inter alia, energy efficiency and renewables (governed by Article 194 TFEU). What is more, CFSP action on energy security is clouded by conceptual inconsistencies. For instance, energy security is a multidimensional concept which can be hard to decipher in legal terms – it relates to security of supply as well as security of demand and it implies different measures to attain these objectives.45 Most importantly, although energy can be bought and sold like any other commodity, it can also be used as a political weapon, or as blackmail, to achieve political goals. According to neorealist thought, energy resources constitute power components of national foreign policy often utilized by states to exert their external influence upon their counterparts.46 Such a reading of energy security is crucial for future CFSP involvement in the field. Energy security can, therefore, be supported by different external instruments and policies ranging from CFSP to development policy as well as the solidarity provisions of Articles 222 TFEU if energy infrastructure falls victim to a natural or man-made disaster within the EU and Article 42(7) TEU in the event energy is used as a weapon 43

‘Decision of the European Parliament and the Council on establishing an information exchange mechanism with regard to intergovernmental agreements and non-binding instruments between Member States and third countries in the field of energy and repealing Decision No 994/2012/EU’ COM (2016) 53 final. 44 ibid, see Subsidiarity heading. 45 See e.g. B Barton and others, who define it as a condition in which ‘a nation and all, or most of its citizens and businesses have access to sufficient energy resources at reasonable prices for foreseeable future free from serious risk or major disruption of service’ in Barry Barton, Catherine Redgwell, Anita Rønne, and Donald N Zillman (eds), Energy Security: Managing Risk in a Dynamic Legal and Regulatory Environment (OUP 2004) 4. See further, Hugh Dyer and Maria Julia Trombetta (eds), International Handbook on Energy Security (Edward Elgar Publishing 2013) ch 12. 46 See Tom Dyson, Neoclassical Realism and Defence Reform in Post-Cold War Europe (Palgrave Macmillan 2010).

344 Research handbook on the EU’s common foreign and security policy against Member States.47 Any future action taken under these provisions can be added to the economic initiatives and measures discussed below since energy security involves, inter alia, the security of supply and demand, as well as the reliability of contractual arrangements on energy and the interplay between national and supranational energy policies. This section highlighted the strong link between the EU internal market and foreign policy, with energy security as the common denominator. At the same time, however, it explored the institutional, procedural and conceptual limitations of relying on CFSP to promote energy security. The next section will illustrate how these can be addressed by the externalization of the EU’s internal energy market regulation.

4. THE SECURITY DIMENSION OF INTERNAL MARKET ENERGY REGULATION The aim of this section is twofold: first, to illustrate that, while energy has become more prominent within the framework of CFSP, security underlies non-CFSP (in this case, competition policy); second, and relatedly, to demonstrate how limitations posed by the CFSP framework can be addressed by the externalization of the EU’s market ‘constitution’. In this regard we may confidently refer to a CFSP dimension of market liberalization. The externalization of internal market policies is mostly evident in the introduction of the so-called ‘Third Party Clause’, otherwise known as the ‘Gazprom clause’, provided in the Third Energy Package.48 Under this provision, a Transmission System Operator (TSO) controlled by a third-country supplier that wishes to perform its functions on the territory of a Member State must receive certification prior to its establishment in the EU. The certification procedure aims to ensure that the TSO complies with the unbundling requirements of the Third Package.49 Unbundling is a market liberalization tool and refers to the process of separation of energy supply and generation from the operation of transmission networks. This is seen as an appropriate mechanism to remove the conflict of interest that may arise if a single company operates a transmission network and generates or sells energy at the same time.50 In 47

See Theodore Konstadinides, ‘Civil Protection Cooperation in EU Law: Is There Room for Solidarity to Wriggle Past?’ (2013) 19(2) European Law Journal 267; Steven Blockmans, ‘L’Union Fait la Force: Making the Most of the Solidarity Clause (Art. 222 TFEU)’ in Inge Govaere and Sara Poli (eds), EU Management of Global Emergencies: Legal Framework for Combating Threats and Crises (Brill Publishers 2014). 48 Directive 2009/72/EC of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC [2009] OJ L211/55 (‘Electricity Directive 2009/72/EC’) Art. 11 and Recital 22; and Directive 2009/73/EC of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive (2003/55/EC) [2009] OJ L211/94 (‘Gas Directive 2009/73/EC’) Recital 25. 49 See Electricity Directive 2009/72/EC (n 48) Arts 9–23 regarding ownership unbundling of production, supply and network assets within the controlling undertaking and Gas Directive 2009/73/EC (n 48) Arts 9–23. 50 See Electricity Directive 2009/72/EC (n 48) Recital 11.

The nexus between CFSP and energy policy 345 such a scenario, the vertically integrated company may have an incentive to obstruct competitors’ access to infrastructure, preventing competition in the market and leading to consumer detriment in the form of higher prices. Under the Third Package unbundling must take place in one of the three following ways: Ownership Unbundling (OU), where all integrated energy companies sell off their gas and electricity network; Independent System Operator (ISO), where energy supply companies may still formally own gas or electricity transmission networks, but must leave the entire operation to an independent company; and Independent Transmission Operator (ITO), where energy supply companies may still formally own gas or electricity transmission networks but must leave the entire operation and investment in the grid to an independent company. Under the Third Party Clause, when a third-country entity seeks certification as a TSO, Article 11 in each Directive requires a detailed assessment by the National Regulatory Authority (NRA) to ensure that the unbundling obligations are met and that security of energy supply of the Member State and the EU will not be put at risk. The burden of proof lies with the relevant TSO. A prior Commission opinion must be sought before certification and the NRA must take ‘utmost account’ of that opinion when adopting its final decision. Each Member State retains the ultimate power of veto when its security is at stake. All in all, the purpose of this – one may argue – political provision is to ensure that EU interests will be secured and to avoid situations where an external, non-EU (vertically integrated) undertaking has control over EU networks.51 More recently, the discussion has resurfaced in the context of the Nord Stream 2 pipeline project, Russia’s proposed $10 billion gas pipeline that will bring natural gas from Russia across the Baltic to Germany and then onwards to Central and Western Europe. In particular, it is still debatable whether in respect of the original corporate structure (whereby Gazprom owned 50 per cent of the operator), or probable corporate structure (whereby Gazprom will probably own all or most of the shares in Nord Stream 2) Nord Stream 2 would be considered to be controlled by a third-country person.52 Turning to security of supply considerations, these mostly underlie non-CFSP dimensions, and in particular competition policy. This is owing to the fact that security of supply is closely interrelated with and dependent upon the effective functioning of the internal market and the greater integration of Member States’ markets. In parallel with the provisions of sector-specific regulation relating to unbundling and third-party access, the application of EU competition law therefore also plays an important, complementary role in safeguarding and promoting security of supply. EU competition law is found in Article 101 TFEU, which prohibits agreements between undertakings 51

For an analysis of the origins of the Third Party Clause see Monica Waloszyk, Law and Policy of the European Gas Market (Edward Elgar Publishing 2014) 69–73. For the relationship between the Third Party Clause and the Energy Charter Treaty see Kim Talus, EU Energy Law and Policy (OUP 2013) 84–85 and V van Hoorn, ‘“Unbundling” Reciprocity and the European Internal Energy Markets: WTO Consistency and Broader Implications for Europe’ (2009) 18 European Energy and Environmental Law Review 51. 52 See n 10 above. For an insightful analysis see Alan Riley, Nordstream 2: A Legal and Policy Analysis (Special Report No. 151, CEPS 2016) accessed 14 July 2017.

346 Research handbook on the EU’s common foreign and security policy that may affect trade between Member States and distort competition in the internal market, and Article 102 TFEU, which prohibits the abuse of a dominant position by an undertaking within the internal market or in a substantial part of it. The EU Merger Regulation (EC) No. 139/2004 is also a powerful tool.53 As will be demonstrated, competition law has attained a disciplinary function in allegations involving activities performed by third-country gas undertakings on EU territory. As the European Commission has repeatedly stated, trade relationships with foreign energy suppliers have to abide by EU competition law rules.54 The EU’s jurisdiction in such cases derives from the territoriality principle under public international law. According to the territoriality principle, the EU may exercise its executive and judicial jurisdiction over violations committed on its territory, irrespective of the nationality of the offender. Article 7 of Regulation (EC) No. 1/2003, the procedural framework governing EU competition law, states that ‘the Commission, when finding that there is an infringement of [Articles 101 and 102 TFEU], may impose on the relevant undertakings any behavioural or structural remedies which are proportionate to the infringement committed and necessary to bring the infringement effectively to an end’.55 Accordingly, the Commission has repeatedly examined under Article 101 TFEU trade agreements concluded between EU-based undertakings and large external producers and suppliers of gas, such as Gazprom (Russia) and Sonatrach (Algeria). Such vertical agreements, typically referred to as long-term energy contracts, are a pervasive feature of the European energy sector. For a long time, they were considered as the cornerstone of security of supply in European countries. This is because they allowed the EU buyers, typically the national energy monopolies, to secure energy supply and the external suppliers to secure energy demand that was necessary for financing infrastructure. Following the liberalization of the energy markets, however, long-term energy contracts came under scrutiny by the European Commission. Because long-term energy contracts typically tie up a large percentage of market demand, they may result in upstream market foreclosure and violate competition law rules, particularly when the supplier has market power.56 Furthermore, such

53

Council Regulation (EC) 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) [2004] OJ L24/1. 54 GFU, Case COMP/36.072; Territorial restrictions 1) Algeria gas transport contracts, 2) Expansion of TAG pipeline, Case COMP/37.811; Territorial restrictions – Austria (Gazprom/ OMV), Case COMP/38.085; Territorial restrictions in Germany (Ruhrgas/Gazprom), Case COMP/38.307. See further Maarit Lindroos, Dominik Schnichels and Lars Peter Svane, ‘Liberalisation of European Gas Markets – Commission Settles GFU Case with Norwegian Gas Producers’ (2002) 3 Competition Policy Newsletter 50 accessed 14 July 2017. 55 Council Regulation (EC) 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty [2013] OJ L1. 56 For an analysis see Kim Talus, ‘Long-term Natural Gas Contracts and Antitrust Law in the European Union and the United States’ (2011) 4(3) The Journal of World Energy Law & Business 260. See further the Commission’s final report from the sector inquiry into energy markets showing that long-term agreements foreclose both upstream and downstream markets,

The nexus between CFSP and energy policy 347 agreements typically contain a number of clauses which may be anticompetitive in nature, such as territorial sales restrictions, profit-splitting mechanisms, long-term exclusive purchase obligations and use restrictions. Most crucially, such clauses may indirectly undermine the objectives of security of supply and diversification of gas supplies by impeding the entry of new market players, as the Energy Sector Inquiry revealed.57 Consequently, in 2003 the Commission negotiated the removal of territorial restriction clauses from the agreements between Gazprom and some of its EU trading partners such as ENI (Italy),58 OMV (Austria)59 and E.ON Ruhrgas (Germany).60 Such clauses, otherwise known as ‘destination clauses’, prevent the buyer from reselling the gas outside a certain geographic area, thereby undermining the creation of a panEuropean energy market. For example, ENI was prevented from selling gas bought from Gazprom outside of Italy and Gazprom could not sell gas to other Italian customers without ENI’s consent. Furthermore, the Commission has successfully negotiated the removal of other anticompetitive clauses such as use restrictions, included in agreements with the Norwegian companies Statoil and Norsk Hydro,61 as well as profit-sharing mechanisms62 included in agreements with the Algerian company Sonatrach.63 In the latter case, negotiations between the European Commission and the Algerian government lasted over seven years and Sonatrach undertook to, among other things, delete territorial restriction clauses from all existing contracts and not to insert such clauses in any future contracts nor to employ profit-sharing clauses in any existing or future gas supply contract. Similarly, in December 2002, the Commission ended its investigation of sales by Nigerian gas company NLNG into the EU following the latter’s agreement to release one of its European customers from a clause preventing the customer from selling outside of its national borders.64 NLNG further undertook not to introduce territorial restrictions clauses, use restrictions or profit-splitting resulting in persistent market division and reinforcement of concentration levels; and Kim Talus, ‘Long-term Gas Agreements and Security of Supply – Between Law and Politics’ (2007) 4 EL Rev 535. 57 Commission, ‘Inquiry pursuant to Article 17 of Regulation (EC) No. 1/2003 into the European gas and electricity sectors (Final Report)’ COM (2006) 851 final. 58 Commission Press Release, ‘Commission reaches breakthrough with Gazprom and ENI on territorial restriction clauses’ IP/03/1345, 6 October 2003. 59 Commission Press Release, ‘Competition: Commission secures improvements to gas supply contracts between OMV and Gazprom’ IP/05/195, 17 February 2005. 60 Commission Press Release, ‘Competition: Commission secures changes to gas supply contracts between E.ON Ruhrgas and Gazprom’ IP/05/710, 10 June 2005. 61 Commission Press Release, ‘Commission successfully settles the GFU case with Norwegian gas producers’ IP/02/1084, 17 July 2002. 62 Profit-sharing mechanisms (PSMs) oblige the buyer/importer to share a certain part of the profit with the supplier/producer if the gas is sold on by the importer to a customer outside the agreed territory or to a customer using the gas for another purpose than the one agreed upon. PSMs have been used as an alternative to territorial restrictions clauses. 63 Commission Press Release, ‘Commission and Algeria reach agreement on territorial restrictions and alternative clauses in gas supply contracts’ IP/07/1074, 11 July 2007. 64 Commission Press Release, ‘Commission settles investigation into territorial sales restrictions with Nigerian gas company NLNG’ IP/02/1869, 12 December 2002.

348 Research handbook on the EU’s common foreign and security policy mechanisms in future contracts. The only cases to close with a formal decision were the GDF/ENEL and GDF/ENI cases.65 Most recently, Article 102 TFEU has also played an important role in disciplining the behaviour of foreign undertakings so as to promote energy security in the EU gas market.66 In September 2012 the European Commission opened a formal investigation of Gazprom’s business practices in the EU.67 Gazprom is one of the EU’s largest gas suppliers and the dominant natural gas supplier in all Central and Eastern European countries. As such, its role in ensuring security of supply in the EU is essential. The Commission alleged that some of its business practices in Central and Eastern gas markets constituted an abuse of its dominant position in breach of Article 102 TFEU. In particular, the Commission accused Gazprom of pursuing an overall strategy to partition Central and Eastern gas markets by imposing territorial restrictions in its supply agreements with gas wholesalers and with some industrial customers in Bulgaria, the Czech Republic, Estonia, Latvia, Lithuania, Poland, Hungary and Slovakia. These territorial restrictions included export ban clauses, destination clauses and other measures preventing the cross-border flow of gas. As a result of this market partitioning, Gazprom may have been able to charge unfair prices in five eastern EU Member States (Bulgaria, Estonia, Latvia, Lithuania and Poland) ‘by charging prices to wholesalers that are significantly higher compared to Gazprom’s costs or to benchmark prices’.68 These unfair prices result partly from Gazprom’s price formulae, which index gas prices in supply contracts to a basket of oil product prices and have unduly favoured Gazprom over its customers. According to the Commission’s preliminary findings, Gazprom may be leveraging its dominant market position by making the supply of gas to Bulgaria and Poland dependent on obtaining unrelated commitments from wholesalers concerning gas transport infrastructure. For example, gas supplies were made dependent on investments in a pipeline project promoted by Gazprom (not explicitly referring to but alluding to the South Stream project in Bulgaria) or accepting Gazprom reinforcing its control over a pipeline (alluding to the Yamal-Europe pipeline in Poland). Regarding the South Stream project, in particular, the implications of Gazprom’s actions were much wider. South Stream was envisaged, once onshore in Bulgaria, to take a northern route, which would also include Serbia, i.e. a non-EU Member State (but party to the Energy Community Treaty) in which Gazprom is dominant. That would not only secure 65

Case COMP/38.662, GDF – décision GDF/ENEL, 26 October 2004 and COMP/38.662, GDF – decision GDF/ENI, 26 October 2004. 66 See e.g. the Marathon cases, where the systematic refusal of five gas companies in continental Europe to grant access to their gas pipelines to a Norwegian subsidiary of an American oil and gas producer was considered by the Commission as a potential abuse of dominant position, Marathon/Ruhrgas / GDF et alia, Case COMP/36246. 67 Commission Press Release, ‘Commission sends statement of objections to Gazprom for alleged abuse of dominance on Central and Eastern European Gas Supply Markets IP/15/4828, 22 April 2015. See further, A Riley, ‘Gazprom versus Commission: The Antitrust Clash of the Decade?’ (CEPS Policy Brief No. 285, 31 October 2012) accessed 26 July 2018. 68 See Commission Press Release IP/15/4828 (n 67).

The nexus between CFSP and energy policy 349 Gazprom a possible transit route from the Black Sea to Central Europe, but would also bring Serbia closer to Moscow, giving the latter leverage over Belgrade’s alignment with CFSP decisions. Such behaviour, if confirmed, impedes the cross-border sale of gas within the Single Market, thus lowering the liquidity and efficiency of gas markets. It raises artificial barriers to trade between Member States and results in higher gas prices. The hefty fines imposed for antitrust violations, which may reach up to 10 per cent of the dominant undertaking’s total turnover in the preceding year,69 may explain Gazprom’s willingness to offer commitments70 so as to alleviate the Commission’s concerns.71 Introduced into EU competition law by Article 9 of Regulation 1/2003, commitment decisions allow the Commission to terminate the investigation without the finding of infringement and the subsequent imposition of a fine. The standard of proof is thus exceptionally low. The parties may propose remedies to remove the Commission’s concerns embodied into legally binding commitment decisions. In essence, ‘commitment decisions are a bargain between the Commission and the undertaking concerned’.72 By contrast, antitrust procedures under Article 7 of the same Regulation may lead to the establishment of an infringement and the levying of significant fines. Damages before national courts may also be triggered. In particular, Gazprom’s proposed measures to remedy competition concerns relate to the removal of restrictions to resell gas cross-border, to ensuring competitive gas prices in Central and Eastern European gas markets and to removing demands in relation to gas infrastructure projects obtained through its dominant market position.73 At the time of writing, the Commission is market testing Gazprom’s concessions and, if satisfactory, it may adopt a decision making the commitments legally binding on Gazprom.74 In the event that Gazprom breaks such commitments, the Commission may impose a fine of up to 10 per cent of the company’s worldwide turnover, without having to prove an infringement of the EU antitrust rules. Furthermore, merger control has also emerged as a powerful tool in promoting energy security. Under Article 2(3) of the Merger Regulation,75 the Commission is entitled to declare a concentration that causes significant impediments to effective competition incompatible with the internal market, particularly if it concerns the 69

Council Regulation 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty [2003] OJ L1/1, art 23(2). 70 Ibid, art 9. 71 See Case AT 39816, Commitment Proposal, 14 February 2017 accessed 14 July 2017. 72 H von Rosenberg, ‘Unbundling through the Back Door … The Case of Network Divestiture as Remedy in the Energy Sector’ (2009) ECLR 30, 245. 73 Press Release: ‘Antitrust: Commission invites comments on Gazprom commitments concerning Central and European gas markets’, Brussels (13 March 2017) accessed 14 July 2017. 74 For an analysis see J Stern and K Yafimava, ‘The EU Competition Investigation of Gazprom’s Sales in Central and Eastern Europe: A Detailed Analysis of the Commitments and the Way Forward’ NG 121 The Oxford Institute for Energy Studies (July 2017). 75 Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) [2004] OJ L 24/1.

350 Research handbook on the EU’s common foreign and security policy strengthening of a dominant position in the market. A recent case concerns the proposed acquisition of the only Greek gas TSO DESFA by SOCAR, the State Oil Company of the Republic of Azerbaijan. Approval by the European Commission has been pending since January 2015.76 According to the Commission, there is preliminary evidence that the proposed merged entity may have the ability and the incentive to hinder competitive upstream gas suppliers from accessing the Greek transmission system, in order to reduce competition on the upstream wholesale gas market in Greece. This could reduce the number of current and potential suppliers and the amount of natural gas in Greece and lead to higher gas prices for clients.77

Finally, it is also possible that activities conducted by foreign undertakings in the energy sector, through, for example, international mergers among incumbents, may have an impact upon competition within the EU territory, even if no Member State or its territory is involved. In such cases, a question arises as to whether the EU competition law rules could apply extraterritorially against an undertaking in another country, where the latter behaves in an anticompetitive manner having adverse effects on the EU territory (‘effects doctrine’).78 So far, the CJEU has not ruled specifically on whether there is an ‘effects doctrine’ under EU law since it has been possible under Articles 101 TFEU and 102 TFEU to extend the territorial jurisdiction of EU competition law based on the ‘single economic entity doctrine’ or the ‘implementation doctrine’. According to the former, parents and subsidiaries are considered to form the same undertaking for the purposes of applying competition law rules so the parent can be held responsible for the unlawful conduct of the subsidiary.79 According to the latter, the EU may assert jurisdiction over foreign undertakings in relation to their foreign conduct if that conduct was implemented in the EU.80 In its recent judgment in Intel,81 the General Court ruled that the jurisdiction of the EU is justified under public international law either by the implementation doctrine or by the ‘qualified effects’ doctrine, that is to say, the criteria of ‘immediate, substantial and immediate effects’.82 The latter has been invoked in the context of mergers outside the EU and the most important pronouncement was given in the Gencor v Commission 76

Commission Press Release, ‘Commission opens in-depth investigation into proposed acquisition of Greek gas transmission system operator DESFA by SOCAR’ IP/14/1442, 5 November 14. 77 ibid. 78 For a general discussion on the extraterritorial application of EU competition law, see R Whish and D Bailey, Competition Law (8th edn, OUP 2015) ch 12. For a discussion in the context of the Gazprom investigation, see Marek Martyniszyn, ‘On Extraterritoriality and the Gazprom Case’ (2015) 37(6) European Competition Law Review 291. 79 Cases 48/69 etc ICI v Commission ECLI:EU:C:1972:70 (Dyestuffs). 80 Cases 114/85 etc A Ahlström Oy v Commission ECLI:EU:C:1988:447. 81 Case T-286/09 Intel v Commission ECLI:EU:T:2014:547. The General Court’s judgment on this issue has been appealed to the CJEU, Case C-413/14, R, not yet decided. 82 ibid, paras 233–236 and 243–244, on appeal to the CJEU on this point. See further, Case C-413/14 P Intel Corporation Inc. v European Commission (not yet decided), Opinion of AG Wahl, paras 278–327.

The nexus between CFSP and energy policy 351 case.83 The extraterritorial application of competition law in that case prevented the merger between two South African mining companies, which would have left them with 30–35 per cent of world production. On appeal, the General Court found the application of the EU Merger Regulation justified under public international law when it was foreseeable that the proposed merger would have ‘an immediate and substantial effect in the Community’.84 This section has served to illustrate how limitations imposed by the CFSP framework relating to the promotion of energy security have been addressed by the externalization of internal market policies. It explored the externalization of both the sector-specific regulatory regime, through the introduction of the so-called ‘Gazprom clause’, and competition law, which, as shown, has attained a disciplinary function in allegations involving activities performed by third-country gas undertakings on EU territory. A key dimension of energy security that resonates throughout the foregoing analysis refers to the EU’s security of supply (from an ‘internal perspective’) in a predominantly economic sense. In other words, it reflects the view that well-functioning EU energy markets will, through the promotion of free trade and competition, enhance security of supply by, inter alia, ‘sending the right signals to industry participants’.85 As discussed above, the EU is ready to intervene in supply contracts that may cover large parts and/or shares of relevant markets and/or be lengthy in duration. While recognizing that these serve as an important instrument in securing supplies from abroad, it has adopted a cautious approach when they foreclose new entry and competition in the EU energy markets. The Gazprom case and the merger cases also discussed illustrate the EU’s efforts to address the acquisition and/or abuse of a dominant position on the part of major external suppliers in the EU energy markets with the effect of reducing competition upstream and or downstream. In sum, the promotion of upstream and/or downstream competition serves to advance security of supply by, among other things, promoting the diversification of supplier countries and routes.

5. CONCLUSION The chapter looked into the energy policy and CFSP nexus. It provided an overview of the historical development of the EU’s CFSP competence in energy policy by looking at its origins, gradual externalization and future potential. Two EU responses, in particular, have raised issues about the future design of energy policy as a part of CFSP. These responses are firmly related to EU aspirations for more actorness, cohesiveness and effectiveness in dealing with geopolitical developments and threats in the realm of foreign and security policy. The first response concerns the EU’s effort to ‘securitize’ 83

Case T-102/96 Gencor Ltd v Commission ECLI:EU:T:1999:65. See further, Morten Broberg, ‘The European Commission’s Extraterritorial Powers in Merger Control. The Court of First Instance’s Judgment in Gencor v. Commission’ (2000) 49(1) International and Comparative Law Quarterly 172. 84 Case T-102/96 Gencor Ltd v Commission ECLI:EU:T:1999:65, para 90. 85 Commission, ‘Green Paper: A European Strategy for Sustainable, Competitive and Secure Energy’ COM (2006) 105, 8.

352 Research handbook on the EU’s common foreign and security policy EU energy policy and law. Through a number of initiatives related to energy security, the EU has succeeded in widening the conceptual scope of EU external action objectives to include energy. The second response pertains to the increased EU emphasis on the CFSP dimension of market liberalization, which seems to have compensated for the lack of a CFSP legal basis in the field of energy. Both the securitization of EU energy policy and law and the CFSP dimension of the internal market have helped build rules and procedures for a comprehensive approach to external action in the field of energy. For instance, the EU’s Third Energy Package and its Gazprom clause constitute examples of the EU not only confirming its presence as a global economic actor, but also emerging as a disciplinarian in the field of external relations against third countries. Indeed, the disciplinary influence of the restrictive measures adopted under the TEU against Russia in conjunction with competition rules under the TFEU are bound to impact upon current and future EU energy partnerships. The legal challenges ahead are of course numerous. From a policy standpoint, action in the field of energy through the use of CFSP instruments or competition law may not be easily distinguished. From a legal perspective, however, we have to deal with the perennial issue of legal competence, which has occupied much of the scholarship on the law of EU external relations. The nuance between the TFEU and the TEU in the field of energy takes place in an environment where EU competence is not clear cut and perhaps it is bound to remain uncertain due to the Member States’ desire for mixity in CFSP and the deeply politicized (and intergovernmental) context within which CFSP rules are applied. While, post Lisbon, energy has gained more visibility in the Treaty, there are two main challenges ahead with reference to CFSP energy competence. The first relates to the question of how to combine the CFSP legal basis, the new energy legal basis, and the Treaty’s Article 40 TEU non-affectation clause as the legal foundation for both internal and external energy security instruments. Indeed, a challenge posed by the Lisbon Treaty on the use of implied powers pertains to the choice of legal basis for cross-sectoral international agreements involving multiple objectives such as CFSP and energy. In this case, a dual legal basis, namely Article 194 TFEU and Articles 24 TEU and 37 TEU or Article 216(1) TFEU (where external action on energy is implied) may be the way forward to sign energy agreements (viz. gas transits; interdependence). A dual legal basis would be particularly useful since Article 40 TEU prevents external competence from being implied for external energy measures under Article 194 TFEU alone.86 The second challenge to CFSP ‘energy’ competence relates to the caveat in Article 194(2) TFEU on Member States’ right to determine the conditions for exploiting their energy resources. This is crucial, especially when it comes to energy security. Energy security constitutes one of the key aims of EU energy policy according to Article 194(1)(b) TFEU. It is commonly meant to entail the EU’s capacity to secure access to energy supplies in order to meet the energy needs of its Member States. By way of conclusion, it is therefore argued that energy action under the TFEU cannot achieve CFSP objectives single-handedly. By contrast, an energy legal basis in the TEU recognizing energy policy as part of the CFSP acquis would be desirable. 86 For an insight on the problems that a dual legal basis may raise see Chapter 1 in this volume.

The nexus between CFSP and energy policy 353 Such an innovation would add legal certainty in the implementation of a comprehensive approach to EU external action in the field of energy and, in particular, for the future CFSP legal framework at large.

17. The European Union as a cybersecurity actor Jed Odermatt

1. INTRODUCTION Cyber-attacks have become more common, and have received a great deal of attention in recent years. In January 2017, the US intelligence community stated that it was confident that groups associated with the Russian government were responsible for the hacking of the Democratic National Committee (DNC) and sought to interfere directly with the US elections.1 Incidents have also exposed the vulnerability of the EU to cyber-attacks. Germany’s intelligence agency stated that groups associated with Russia were responsible for infiltrating the computer network of the German Parliament.2 In May 2017, the head of Germany’s domestic intelligence agency accused Russia of being behind cyber-attacks intended to influence the German election and suggested the possibility of ‘wiping out’ Russian servers if the owners do not ensure they are not used for attacks.3 The campaign team of French Presidential candidate Emmanuel Macron accused Russia of being responsible for a coordinated hacking operation intended to influence the Presidential election.4 The EU institutions have also been a target and there has been a reported rise in the number of cyber-attacks on EU servers, including those of the European Commission.5 The WannaCry and Petya ransomware cyberattacks (malicious software that threatens to block access to data unless a ransom is paid) affected businesses in the EU and the rest of the world. Such attacks are not only becoming more common, but also more sophisticated. While such high-profile incidents make international headlines, there are other less visible cyberthreats that also require a legal and policy response. Various forms of cybercrime, phishing, online fraud and other criminal activity not only cause economic damage in the EU, but can also undermine confidence in the internet and digital commerce. The list of such incidents will continue to expand. EU citizens, businesses and governments all benefit from the interconnected digital world provided by the internet, yet there is a growing awareness of the threats that such interconnectedness brings. In the field of cybersecurity, the EU is a relative newcomer 1 Intelligence Community Assessment, ‘Assessing Russian Activities and Intentions in Recent US Elections’, 6 January 2017 . 2 ‘After a Cyberattack, Germany Fears Election Disruption’ The New York Times, 8 December 2016. 3 ‘Germany Challenges Russia Over Alleged Cyberattacks’ Reuters, 4 May 2017. 4 ‘Hackers Hit Macron Campaign with “Massive” Attack’ Financial Times, 6 May 2017 . 5 ‘EU suffers jump in aggressive cyber attacks’ Financial Times, 8 January 2017 .

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The European Union as a cybersecurity actor 355 on the scene. While it has for a long time been involved in areas of internet governance and regulation,6 on cybersecurity issues the Union has been more reactive to events and developments, and is still in the process of developing a coherent cybersecurity policy. As the challenges of cybersecurity become more prominent, the EU and the Member States have sought to catch up by strengthening resilience to threats emanating from cyberspace. This chapter examines those steps and assesses the extent to which the Union has become an effective cybersecurity actor. While the EU has made steps in addressing cybercrime and improving the resilience of communication and information systems, it is only beginning to develop a role in cyber defence, a field that has been largely left to the Member States. In line with the theme and aims of this Research Handbook, the present chapter will focus on the international security dimension. The chapter begins by briefly discussing the challenges facing the EU in the field of cybersecurity. Section 2 discusses the concept of ‘cybersecurity’ and discusses why greater conceptual clarity is needed in order for the EU to develop a more coherent approach. It then discusses the EU’s general approach to cybersecurity issues, which is to separate the issue into different elements: cybercrime, network and information security, and cyber defence. Such an approach is grounded partly in legal reasons. Without an explicit competence in the cybersecurity domain, the EU has had to find a connection with existing EU competences. Where the Union has not been able to connect cybersecurity issues with an existing EU competence, it has pursued more soft law measures to influence Member States and other actors.7 Section 3 provides a brief overview of EU policy in the field of cybercrime, the field where the EU has been most active. Section 4 discusses the second pillar of the EU’s approach in the field of network and information security (NIS). Section 5 discusses the EU as an emerging actor in the field of cyber defence and outlines both the challenges and potential opportunities of establishing a comprehensive cyber defence policy. Section 6 discusses the external dimension of cybersecurity policy. Due to the global nature of the threats involved, the approach of the EU and its Member States must be developed within a global context, including other states and key international organisations and bodies. The EU acknowledges that building cyber resilience requires more than developing its own internal policies and that it should also work at the international level to influence developments. It is in this field that the EU has the potential to develop into an international actor in the field of cybersecurity.

6 Franz C. Mayer, ‘Europe and the Internet: The Old World and the New Medium’ (2000) 11(1) EJIL 149. 7 Ramses A. Wessel, ‘Towards EU Cybersecurity Law: Regulating a New Policy Field’ in N Tsagourias and R Buchan (eds), Research Handbook on International Law and Cyberspace (Cheltenham: Edward Elgar Publishing, 2015) 425: ‘While the EU is usually able to find a connection to existing competences, allowing it to produce new legislation in many different fields, it suffers from the fact that it is not always easy (and sometimes even impossible) to combine the different cybersecurity dimensions in consistent or even connected policies.’

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2. CYBERSECURITY CHALLENGES IN THE EU 2.1 Defining Cybersecurity Terms Legal and policy documents related to cybersecurity often begin with a conceptual discussion about what exactly ‘cybersecurity’ means.8 The term remains somewhat ambiguous and ill-defined, in part because of the constantly evolving nature of the threats involved.9 Moreover, cybersecurity is often used as an umbrella term to refer to a number of different types of threats, including cybercrime, cyber espionage, cyberattacks, cyber warfare and cyber terrorism. There does not appear to be any coherent understanding within the EU about what cybersecurity entails.10 In addition, there is no common definition for cyber terms used in the EU context.11 Key terms such as ‘cyberspace’, ‘cyber-attack’ and ‘critical infrastructure’ do not have a common definition in the EU Member States, most of which have their own national strategies.12 Without such clearly defined terms, however, it may be difficult to set boundaries as to who is responsible for different issues, especially given that cybersecurity entails a number of different state and non-state actors. The lack of a clearly defined taxonomy may also make it difficult for the EU and Member States to develop a coherent framework. This affects not only the EU’s internal policy making, but also the EU’s ability to influence developments at the international level. One of the key EU documents in this field is the 2013 Cybersecurity Strategy of the European Union: An Open, Safe and Secure Cyberspace (EUCSS),13 which was jointly adopted by the High Representative of the Union for Foreign Affairs and Security

8 Paul Cornish, Rex Hughes and David Livingstone, ‘Cyberspace and the National Security of the United Kingdom Threats and Responses’ Chatham House, March 2009, 1: ‘Cybersecurity (security in and from cyberspace) is widely regarded as an urgent and high-level problem which cannot be ignored. But the precise nature of this problem is not well defined.’ See Daniel T. Kuehl, ‘From Cyberspace to Cyberpower: Defining the Problem’, in Franklin D. Kramer, Stuart H. Starr and Larry K. Wentz (eds), Cyberpower and National Security (Washington, DC: Center for Technology and National Security Policy, 2009). 9 See Federica Di Camillo and Valérie Miranda, ‘Ambiguous Definitions in the Cyber Domain: Costs, Risks and the Way Forward’, IAI Working Papers No. 11, 26 September 2011. 10 Krzysztof F. Sliwinski, ‘Moving Beyond the European Union’s Weakness as a CyberSecurity Agent’ (2014) 35(3) Contemporary Security Policy 468, 470: ‘There is no coherent European understanding of what the notion of cyber-security should include. Consequently, conceptualization differences are more than likely to produce different approaches to respective national capabilities catalogues. Such inconsistencies, when reinforced by national security narratives and traditional sovereignty claims, are more than likely to leave the EU toothless in the future.’ 11 Di Camillo and Miranda (n 9). 12 For a list of definitions of ‘cyber terms’ in national strategies and other documents, see NATO Cooperative Cyber Defence Centre of Excellence, Cyber definitions . 13 Joint Communication to the European Parliament, The Council, The European Economic and Social Committee and the Committee of the Regions, Cybersecurity Strategy of the European Union: An Open, Safe and Secure Cyberspace, 7 February 2013 (EUCSS).

The European Union as a cybersecurity actor 357 Policy (HRVP) and the European Commission (discussed in Section 2.4). The EUCSS provides a very broad definition of cybersecurity: safeguards and actions that can be used to protect the cyber domain, both in the civilian and military fields, from those threats that are associated with or that may harm its interdependent networks and information infrastructure. Cyber-security strives to preserve the availability and integrity of the networks and infrastructure and the confidentiality of the information contained therein.14

This definition includes actions to protect the ‘cyber domain’, in both civilian and military fields. The benefit of such a wide-ranging definition is that it allows for policies that cut across different domains and can be applied to new cyberthreats as they emerge and evolve. Nonetheless, EU policy tends to divide cybersecurity into two main elements: the security of network and information systems and cybercrime. The former refers to the ability of electronic communications systems and digital data to resist action that may compromise data stored on or transmitted via those systems.15 Cybercrime, on the other hand, refers to the use of electronic communication networks to commit criminal acts online. The European Union Agency for Network and Information Security (ENISA), the Agency established to improve network and information security in the EU, distinguishes cybersecurity from other terms such as cybercrime, cyber espionage and cyber warfare. It adopts a narrower definition of cybersecurity that focuses on ‘… the protection of information, information systems, infrastructure and the applications that run on top of it from those threats that are associated with a globally connected environment’.16 This relates to ensuring the resilience of networks to potential attacks and the capacity to respond to such attacks. The EUCSS and other policy documents provide a separate definition of cybercrime, which entails: a broad range of different criminal activities where computers and information systems are involved either as a primary tool or as a primary target. Cybercrime comprises traditional offences (e.g. fraud, forgery, and identity theft), content-related offences (e.g. on-line distribution of child pornography or incitement to racial hatred) and offences unique to computers and information systems (e.g. attacks against information systems, denial of service and malware).17

This is also a broad definition. It includes not only crimes that are unique to electronic networks, such as cyber-attacks, but also the use of information systems to pursue 14

Ibid 3. The precise legal definitions of ‘network and information system’ and ‘security of network and information systems’ are found in Article 4 of the Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union, OJ L 194, 19.7.2016, 1 (‘NIS Directive’). 16 Udo Helmbrecht, Steve Purser and Maj Ritter Klejnstrup, Cyber Security: Future Challenges and Opportunities (Heraklion: ENISA, 2012) 13. 17 EUCSS (n 13) 3. 15

358 Research handbook on the EU’s common foreign and security policy crimes such as fraud or the publication of illegal content, or even online fundraising and recruitment for terrorism (including ‘cyber terrorism’). While the EUCSS has put forward this definition of cybercrime, there is still no common understanding in the EU, and Member States continue to have their own approaches. Moreover, since cybercrime involves such a wide range of different acts, it has been debated whether there needs to be a single definition.18 The last pillar of EU policy – cyber defence – also lacks common definitions of key terms in the EU context, one reason being that this remains a key competence of the EU Member States.19 The cyberthreats in the other two categories mainly involve illegal activity for private material gain, and as such are viewed as matters relating to criminal justice. Cyber defence, on the other hand, relates to actions targeted at states, often for a political motive, and is therefore viewed as a national security issue. It is not always easy to make this distinction in practice. For example, the NotPetya cyberattacks of June 2017 first appeared to involve ransomware for private gain. Yet some security experts have pointed out that it was possibly a destructive malware disguised as ransomware, with the support or approval of a state actor, with the intention of causing damage in Ukraine and other businesses in Europe.20 This demonstrates how difficult it can be to distinguish elements of cybercrime and cyber warfare. Cyberattacks have been carried out by state or non-state actors and can involve a mix of private and political motives. It is difficult to distinguish which elements belong to the realm of criminal law and which are matters of national security, each of which carry their own set of responses. Conceptual debates about the boundaries between cybercrime, cyber warfare and so on continue to pervade this field.21 One might question whether such conceptual debates really matter. Yet without a clear definition of cybersecurity and its key terms, it is difficult for the EU to establish a comprehensive vision. States each have their own cybersecurity strategy documents, each containing their own terminology.22 Definitions also matter because they relate to the different approaches, conceptions and responses to these threats. For example, it is 18 International Telecommunications Union, Understanding Cybercrime: A Guide for Developing Countries (2009) 18. ‘The fact that there is no single definition of “cybercrime” need not be important, as long as the term is not used as a legal term.’ . 19 George Christou, Cybersecurity in the European Union: Resilience and Adaptability in Governance Policy (London: Palgrave Macmillan, 2016) 6: ‘Cyber defence is not defined within the EU documents given the sensitivity among member states on this issue, and the reluctance of certain member states to participate given their own cyber defence strategies.’ 20 ‘NotPetya and WannaCry Call for a Joint Response from International Community’, NATO Cooperative Cyber Defence Centre of Excellence, 30 June 2017, . ‘“Petya” ransomware attack: what is it and how can it be stopped?’ The Guardian, 28 June 2017 . 21 Jukka Ruohonen, Sami Hyrynsalmi and Ville Leppänen, ‘An Outlook on the Institutional Evolution of the European Union Cyber Security Apparatus’ (2016) 33 Government Information Quarterly 746. 22 For a list of national documents, see NATO Cooperative Cyber Defence Centre of Excellence, Cyber Security Strategy Documents .

The European Union as a cybersecurity actor 359 unclear when a cyber-attack may give rise to diplomatic and military responses, and when should it be dealt with as a matter of domestic criminal law. There are also new forms of cyber warfare that may not fit into a neat category, such as the deliberate use of misinformation to destabilise politics in a country.23 Conceptual difficulties may also make it difficult to determine which bodies are responsible in a given situation. Due to the high number of actors involved – national authorities, EU bodies, businesses, civil society, international organisations – the use of different terminology can also undermine cooperation and coordination. The development of a common understanding of cybersecurity and its key terms at the EU level would not only strengthen resilience and responses to cyberthreats within the EU, it could also help the EU to push forward with this taxonomy at the global level. 2.2 Governance Challenges: the Nature of Cyberspace and Cybersecurity The nature of cyberspace and threats emanating from this sphere raise some unique challenges. By their very nature, cybercrime and cyber-attacks are a cross-border phenomenon, and purely national or regional approaches are unlikely to be effective. This not only means that cooperation should take place between EU Member States, but that the EU and the Member States must also work at the international level to forge partnerships and cooperation. Another challenge is that there is no central actor or body responsible for taking the lead in the area of cybersecurity. This means that policy has been developed by different actors, each of which have different goals and rationales, both at the EU and Member State level. In addition, any approach must involve both state and non-state actors, including private industry and technology firms (internet security companies, services providers, firms that own and manage hardware, software and infrastructure) as well as civil society. Given the number of actors involved, cybersecurity issues cannot be addressed purely through a ‘top-down’ strategy that is based on the logic of governmental control. The approach within the EU has been to involve these different actors and to indirectly influence developments and give incentives for cooperation. This also reflects the fact that there is wide disagreement about the role governments, regional organisations and private industry should play in cybersecurity. EU governance in this field has pursued a ‘multi-stakeholder’ approach,24 which acknowledges the need to involve bodies such as national governments, internet providers, technology and security firms, businesses and civil society. The EUCSS endorses this multi-stakeholder approach.25 This contrasts with the more state-centric or top-down approach pursed by states such as China and Russia. The multi-stakeholder approach encourages cooperation and information sharing between different bodies, and is arguably more suited to cybersecurity, given its global and decentralised nature and the fact that non-governmental private bodies are responsible for the management of internet 23 See ‘Britain says Russia is trying to undermine West by “weaponizing misinformation”’, Reuters, 3 February 2017. 24 Annegret Bendiek and Andrew L. Porter, ‘European Cyber Security Policy within a Global Multistakeholder Structure’ (2013) 2 European Foreign Affairs Review 155, 175. 25 EUCSS (n 13) 4.

360 Research handbook on the EU’s common foreign and security policy resources. This form of governance is also more suited to the EU, which is able to deal with multiple stakeholders, encourage cooperation, and develop standards and good practices. The EU’s response, therefore, has focused less on legislation and more on strengthening institutions and agencies, promoting joint initiatives and improving coordination. National governments, NIS authorities, law enforcement bodies, and the private sector will continue to be involved in preventing and responding to cyberthreats, and the EU will not become a central supervisory body. Nonetheless, EU action helps to coordinate Member States and these other bodies and to link these efforts to the international level. 2.3 An EU Approach to Cybersecurity? As a relatively new actor in cybersecurity, the EU still lacks a comprehensive vision.26 Yet a number of important steps have been made towards establishing such a coherent approach at the EU level. The EU Global Strategy sets out that a renewed focus on cybersecurity by the EU ‘requires weaving cyber issues across all policy areas, reinforcing the cyber elements in CSDP missions and operations, and further developing platforms for cooperation’.27 This is a real challenge, especially given that those policy areas straddle issues related to the internal market, criminal law, international diplomacy and defence. Cybersecurity is not mentioned as a policy field in the EU Treaties, and there is no explicit legal basis for EU policy in this area. This has meant that, due to the principle of conferral in EU law, EU policies have had to be linked to existing EU competences. The EU has relied for the most part on the economic rationale for such action, arguing, for instance, that cyber-attacks have an economic effect in the Union. Policies at the EU level are geared towards the functioning of the internal market. For example, the NIS Directive finds its legal basis in Article 114 of the Treaty on the Functioning of the European Union (TFEU), under which the EU can adopt ‘measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market’. Because network and information systems play such a key role in the cross-border movement of goods, people and services, the disruption of networks in one Member State can have wider effects on other Member States and the EU, and can therefore constitute a barrier to the internal market.28 The Directive on combating the

26 George Christou, Cybersecurity in the European Union: Resilience and Adaptability in Governance Policy (London: Palgrave Macmillan, 2016) 102: ‘there is no overarching framework but rather a series of legal and regulatory instruments that overlap’. Sliwinski (n 10) 469: ‘Many EU member states have their own cyber-security strategies and their own conceptualizations of cyber-security. The EU as a whole is not entirely clear on the notion.’ 27 Shared Vision, Common Action: A Stronger Europe A Global Strategy for the European Union’s Foreign And Security Policy, June 2016, 22. 28 Proposal for a Directive of the European Parliament and of the Council concerning measures to ensure a high common level of network and information security across the Union /* COM/2013/048 final – 2013/0027 (COD), Point 3.1.

The European Union as a cybersecurity actor 361 sexual exploitation of children online and child pornography29 finds its legal basis in Articles 82(2) and 83(1) TFEU, referring to judicial cooperation in criminal matters in the Union. In the field of cybercrime and in the field of increasing critical infrastructure resilience there is a legal basis for such legislative efforts, which are aimed mostly at achieving common approaches in the EU Member States. There have been fewer developments in terms of cyber defence policy.30 A further challenge is to link these internal legislative developments with the external aspects of EU policy.31 Although the EU must link its actions in cybersecurity with existing competences, this does not mean that a common approach to cybersecurity issues cannot emerge across those different domains. The EUCSS and other policy documents set out some of the key priorities for action in this field. For example, for the EU, any policy must respect fundamental rights and values in the Union. The EU and the Member States are also committed to securing a global, open and secure internet. Measures designed to enhance cyber resilience within the EU must be balanced with protecting individual rights, including privacy or freedom of speech. The EUCSS stresses not only that EU internal policies must respect fundamental rights, but that the EU’s engagement on cyber issues at the international level must respect EU core values of freedom, democracy, equality and the rule of law.32 2.4 2013 Cybersecurity Strategy One of the challenges of establishing a coherent vision is that EU action in this field is separated into different dimensions, each of which has a different rationale and logic, and is at a different stage of development. Presented in 2013 by the Commission and the EU High Representative, the Cybersecurity Strategy of the European Union: An Open, Safe and Secure Cyberspace33 sought to overcome this issue by providing a policy initiative that cuts across the various domains of cybercrime, NIS and cyber defence. The EUCSS is broad in scope and sets out six main priority areas for the Union. The first of these is to achieve ‘cyber resilience’ through a range of legislative and non-legislative measures focused on enhancing private and public capacities. The second priority is to reduce cybercrime. The third priority relates to the development of a cyber defence policy related to the framework of the CSDP. By addressing these different fields within the same document, the EU is pursuing a more comprehensive approach, for example by bringing together areas including CFSP/CSDP that touch upon cyber-related issues.34 The fourth priority relates to the development of industrial and technical resources to prevent and deter cyber incidents. The fifth policy turns outwards and relates to the development of an international cyberspace policy. This also illustrates how the EUCSS seeks to ‘mainstream’ cybersecurity policies across different 29 Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA. 30 Sliwinski (n 10) 479. 31 Wessel (n 7) 404. 32 EUCSS (n 13) 15. 33 EUCSS (n 13). 34 Ibid 11: ‘cyber security efforts in the EU also involve the cyber defence dimension’.

362 Research handbook on the EU’s common foreign and security policy domains, both in the EU’s internal policies as well as in its external relations. The last priority is the promotion of core EU values, an issue which can help tie together the internal and external aspects of cybersecurity policy. The EUCSS is highly ambitious, and in the years since its adoption the EU has made progress on all of these policies. Yet one of the main challenges for the EU will be to bring together national, regional and international bodies, as well as the many actors in the private sector, and to overcome the fragmentation of policies.

3. CYBERCRIME Tackling cybercrime is the first pillar of EU cybersecurity strategy and it is in this field that the EU has made the most concrete developments. The EU has mostly used a legal approach to this issue, employing EU Directives and Regulations as a form of governance. However, cyber resilience requires more than a strictly legal approach, also fostering a common culture of cybersecurity, creating trust to ensure data and information sharing, and bolstering the resources of the EU Member States. Along with EUCSS, the European Agenda on Security (EAS)35 provides a strategic framework for EU initiatives in the field of cybersecurity. The EAS for the period 2015–2020, adopted by the Commission in April 2015, prioritises terrorism, organised crime and cybercrime as areas with a cross-border dimension where EU action can make a difference. The 2013 EU Directive on Attacks against Information Systems36 (‘Cybercrime Directive’) establishes minimum rules on the definition of criminal offences and sanctions with respect to attacks against information systems and replaces the 2005 EU Framework Decision on Attacks against Information Systems. It also provides minimum rules on the definitions of crimes included in the Directive so as to allow a consistent approach among the Member States. These include illegal access to information systems, illegal system interference, illegal data interference and illegal interception. Given the evolving nature of cybercrime activities, the Directive seeks to address some of these newer threats, including botnet attacks, identity theft and the role of organised crime. Other developments include the 2011 Directive on Combating the Sexual Exploitation of Children Online and Child Pornography, the 2002 ePrivacy Directive37 ensuring the confidentiality of client information, and the 2001 Framework Decision on combating fraud and counterfeiting.38 The EU’s strategy also involves the strengthening of, and cooperation between, institutions at the EU and Member State level. The European Cybercrime Centre (EC3) 35 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, European Agenda on Security, 28.4.2015 COM(2015) 185 final. 36 Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013 on attacks against information systems and replacing Council Framework Decision 2005/222/ JHA, OJ L 218, 14.8.2013, 8. 37 Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, OJ L 337, 18.12.2009, 11. 38 Council Framework Decision of 28 May 2001 combating fraud and counterfeiting of non-cash means of payment, OJ L 149, 2.6.2001, 1.

The European Union as a cybersecurity actor 363 was officially launched in 2013. As a distinct body attached to Europol, EC3’s role is to coordinate national cybercrime authorities and the training of national cybersecurity experts, and it acts as a European focal point in fighting cybercrime. EC3 seeks to coordinate various national cybercrime authorities and facilitate training of national cybersecurity experts. Its aim is to harmonise legal and technical provisions dealing with issues such as data protection and privacy. Cybercrime is an area where there have been important developments in the EU. Although the Member States remain key actors in the field, efforts at the EU level have brought together public and private bodies, identified gaps in regulation, and strengthened capabilities to deter, investigate and prosecute cybercrime. Greater efforts should be now be made to link cybercrime with the other branches of EU policy, for example by fostering greater coordination between national law enforcement with NIS authorities and defence.

4. NETWORK AND INFORMATION SECURITY The second pillar of the EU’s approach is in the field of NIS. Information security is an essential element of the modern digital economy, and efforts to strengthen NIS have been motivated chiefly by this economic rationale. The 2010 Digital Agenda for Europe, an initiative under the Europe 2020 Strategy, sets out trust and security online as one of its main pillars. The goal of having a coordinated European response to cyber-attacks and rules on personal data protection are linked to the wider objective of restoring trust in digital services, which is essential for the Digital Single Market.39 Yet beyond this economic dimension, it is now understood that NIS also involves an international security dimension, especially where it is focused on preventing attacks against critical infrastructure. The first EU legislative instrument designed to combat cyberthreats was the Directive on Security of Network and Information Systems (‘NIS Directive’).40 Adopted on 6 July 2016, the NIS Directive aims at setting a high common level of NIS across the EU by removing divergences between NIS legislation across different EU Member States. The Directive has three main aims: increasing capabilities of the Member States, increasing EU-wide cooperation, and risk management and reporting. The first objective requires Member States to be adequately prepared for cyberthreats. This involves the establishment of national NIS Strategies and national Computer Security Incident Response Teams (CSIRTs). The second objective is to promote cooperation between the Member States. In terms of risk management and reporting, the NIS Directive sets out requirements for security and notification, according to which certain actors are to notify serious incidents to national authorities. These include businesses with an important role in the economy, operators of essential services, and digital service 39 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee, A Digital Single Market Strategy for Europe, COM(2015) 192 final. 40 Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union, OJ L 194, 19.7.2016, 1 (‘NIS Directive’).

364 Research handbook on the EU’s common foreign and security policy providers. The NIS Directive lists certain critical sectors, including energy, health, transport and banking. In these areas, companies must ensure their ability to resist a cyber-attack. The 2016 Communication on Strengthening Europe’s Cyber Resilience System and Fostering a Competitive and Innovative Cybersecurity Industry41 suggests certain market-oriented policy measures to boost industrial capabilities in Europe. These include a system for certification and labelling to achieve a functioning single market in cybersecurity, and further investment in the cybersecurity industry. In July 2016, the Commission launched a public-private partnership on cybersecurity to promote further investment in the industry but also to improve Europe’s resilience to cyber-attacks. The aim is to increase cyber resilience by stimulating a cybersecurity industry within the EU, promoting public-private partnership on cybersecurity, and overcoming obstacles to a single cybersecurity market. In terms of institutions, ENISA is the most advanced European body established for dealing with cybersecurity matters. ENISA is responsible for facilitating and coordinating the exchange of information, best practices and knowledge in the field of information security, and plays a key role in the implementation of the NIS Directive. It serves as an access point or hub for EU Member States and other bodies. Working with states and other stakeholders, ENISA also serves to develop advice and recommendations on good practices in the field of information security, and assists Member States with their own national cybersecurity strategies. The Agency was first oriented towards research and training but has in recent years evolved a more regulatory role. The ENISA Threat Landscape42 details emerging trends and risks in cybersecurity and contributes to the goal – outlined in the EUCSS – of streamlining and consolidating available information on cyberthreats. The EU established its own permanent Computer Emergency Response Team (CERT-EU) in 2012. CERT-EU plays an internal, technical role focused on the EU institutions. Comprised of IT security experts from the EU institutions, it cooperates with the CERTs in other Member States as well as the IT industry. The role of CERT-EU is mainly defensive, dealing with issues such as prevention, detection, response and recovery. The EU has also made progress in the field of network and information security but there remain steps to improve cyber resilience in Europe. On 10 May 2017 the Commission published its mid-term review of the Digital Single Market strategy43 in which it outlines three areas where further action is required: developing the European Data Economy, promoting online platforms as responsible players, and tackling 41 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the European Committee of the Regions, Strengthening Europe’s Cyber Resilience System and Fostering a Competitive and Innovative Cybersecurity Industry (2016) COM(2016) 410 final. 42 European Union Agency For Network and Information Security, ENISA Threat Landscape Report 2016, 15 Top Cyber-Threats and Trends, January 2017. 43 Communication from the Commission to the European Parliament, The Council, The European Economic and Social Committee and the Committee of the Regions, on the Mid-Term Review on the implementation of the Digital Single Market Strategy, A Connected Digital Single Market for All, COM(2017) 228 final, Brussels, 10.5.2017.

The European Union as a cybersecurity actor 365 cybersecurity challenges. The Commission will review the EUCSS, and the mandate of ENISA to bring them into line with a wider EU framework on cybersecurity. In addition to further developing industrial capacity in the cybersecurity sector, the next steps will be to develop common standards of security, certification and labelling. It is clear that in this field the economic rationale remains predominant, which is understandable given the importance of cybersecurity in the modern digital economy as well as the clear legal basis for EU efforts. Yet it is becoming clear that cyber resilience also carries with it a security element, and that such efforts must also be coordinated with the other pillars of EU policy, including cyber defence.

5. CYBER DEFENCE 5.1 The Challenges of Cyber Defence Policy The European Commission Reflection Paper on the Future of European Defence,44 which sets out three different options for moving towards a security and defence Union, illustrates the central importance of cyber defence. Under each of the three scenarios outlined in the paper – security and defence cooperation, shared security and defence, and common defence and security – cyber defence is envisaged as an area of greater cooperation through support at the EU level since cyberthreats ‘straddle the internalexternal policy divide’.45 As the EU steps up its defence cooperation, issues related to cyber defence will remain prominent. ‘Cyber defence’ policy falls for the most part within the CSDP and remains an area of national strategies. Despite the sensitivity over this area of national security, the EU Member States have begun to cooperate through the EU framework, and one of the strategic priorities set out in the EUCSS is to develop a cyber defence policy in the framework of the CSDP. Whereas the EU has emerged as an actor in the fields of cybercrime and network and information security discussed above, cyber defence remains the least developed dimension. Along with sea, air, land and space, the ‘cyber domain’ is now viewed as the fifth domain of warfare. European states only began to treat the issue as an urgent and serious threat after the 2007 attacks on public and private institutions in Estonia. Conventional military operations and activity depend heavily on the use of information technology and computer networks, and these increasingly involve civilian infrastructures. Various EU Member States have taken steps to develop their own military cyber defence capabilities but there is no comprehensive EU approach to cyber defence. The EUCSS sets out the need for an EU cyber defence policy, stressing the need to ‘increase the resilience of the communication and information systems supporting Member States’ defence and national security interests’ by focusing on the detection, 44 European Commission, European Commission Reflection Paper on the Future of European Defence, COM(2017) 315, 7 June 2017. 6: ‘Peace and security at home can no longer be taken for granted in a world in which global and regional powers rearm, terrorists strike at the heart of cities in Europe and around the world and cyberattacks escalate.’ 45 Ibid 12.

366 Research handbook on the EU’s common foreign and security policy response and recovery from cyberthreats.46 Member States seek to remain in charge of issues closely related to cyber defence, yet this is also a field where there is potential for much greater EU involvement. As in the fields of cybercrime and network and information security, the EU is in a position to encourage greater information sharing between parties, to foster research and cooperation. The EU may also be in a position to respond to cyber-attacks, for example through a coordinated diplomatic response at the EU level. The EU has not yet sought to develop any kind of hard or offensive cyber power. Rather, the EU’s approach to cyber defence has so far been guided by the logic of protection. Rather than developing offensive cyber capabilities, the focus has been on ensuring the protection of conventional military activity. Moreover, since the EU does not possess its own military forces or equipment, it is reliant on the Member States to provide cyber defence for EU-led operations. EU Member States have different levels of protection, approaches, cultures and technical knowledge. This creates challenges for the EU to take measures to protect equipment and communication and information networks used in the context of CSDP missions. Another challenge is that it is difficult to identify which issues belong to Member States’ competences, and those where the EU can potentially play a role. The EU will likely pursue a similar governance model as in other fields of cybersecurity, emphasising collaboration between Member States, sharing information, and supporting and developing training and education. A key role of the EU in this field is to facilitate cooperation and partnerships, to share information and resources, and to avoid duplications. This includes fostering not only cooperation between EU Member States, but also greater civil–military cooperation. This is important since EU military operations depend heavily on civilian actors and infrastructure, and militaries often depend on the very same technologies that are used in the private sphere. Cooperation also makes financial sense at a time when military budgets are under strain and costs are rising. The pooling and sharing of military capabilities, including in the domain of cyber defence, can therefore have economic benefits.47 However, cooperation in cyber defence, as with other areas of military cooperation, will take time and will require building trust between various actors. It has been suggested that the EU could learn from other areas of military cooperation, such as air logistics, to strengthen capabilities within the EU.48 The most important step in this field has been the adoption of the EU Cyber Defence Policy Framework (‘CD Policy Framework’) by the Council on 18 November 2014.49 The CD Policy Framework, developed on the basis of a proposal by the High Representative in cooperation with the European Commission and the European Defence Agency (EDA), sets out two main goals. The first is to provide a framework to 46

EUCSS (n 13) 11. See Chapter 8, Simon Duke, ‘Capabilities and CSDP: resourcing political will or paper armies’. 48 Neil Robinson, ‘EU Cyber-defence: a Work in Progress’, European Union Institute for Security Studies, March 2014 . 49 EU Cyber Defence Policy Framework, Brussels, 18 November 2014. 47

The European Union as a cybersecurity actor 367 European Council Conclusions on CSDP of December 2013 together with the Council Conclusions on CSDP of November 2013, which called for a Policy Framework in the field of CSDP. Second, it sets out certain priorities for CSDP cyber defence, while establishing the different roles of the European actors in this field. The CD Policy Framework further illustrates how there are a number of actors responsible in this field, most importantly the governments and militaries of the EU Member States. The first priority is to support the development of Member States’ cyber defence capabilities related to CSDP. The second goal is to enhance the protection of communication networks used in support of CSDP missions and operations. The CD Policy Framework also seeks to promote greater civil–military cooperation, as well as cooperation between governments, EU institutions, the private sector and academia. This is in line with the goal of the EUCSS to initiate greater synergies between the civilian and military approaches,50 including greater cooperation in research and development. Lastly, the CD Policy Framework outlines the need for cooperation with relevant external partners, most importantly NATO, in heightening cyber resilience. The two main actors driving developments in this field have been the EDA and the EU Military Staff (EUMS). The EDA is tasked with supporting the development of the Member States’ cyber defence capabilities and the CD Policy Framework sets out that the EDA should work together with the Member States and the European External Action Service (EEAS) to deliver effective cyber capability.51 Cyber defence is one of the ten priority areas set out in the EDA’s Capability Development Plan, the strategic tool used by the Agency to identify future capabilities in the short to long term.52 The EDA is involved in delivering training and exercises, improving cyber situational awareness, developing a Cyber Defence Research Agenda, the early detection of Advanced Persistent Threats (such as malware aimed at cyber espionage), and the development of technology used for the protection of information such as cryptography for military use. The EDA also undertakes studies into the military cyber defence capabilities of the EU Member States to assess and identify gaps and areas for cooperation and civilian–military cooperation. An EDA stocktaking study examined cyber defence capabilities in the 20 countries that participated in the study, analysing capabilities in terms of doctrine, organisation, training, material, leadership, facilities and interoperability. At the EU level it found that incident response capabilities could be deepened and that a culture of cybersecurity had to be developed. It also presented a ‘mixed picture’ with respect to Member State capabilities,53 pointing to a low level of maturity in terms of doctrine, organisation and training. According to Christou, ‘[t]here has been confusion or at least little clarity on the function of the military in the cyber defence domain and the relationship between broader national cybersecurity strategies 50

EUCSS (n 13) 11. Council of the European Union, EU Cyber Defence Policy Framework, Brussels, 18 November 2014, 4. 52 European Defence Agency, Capability Development Plan . 53 See ‘Cyber Defence’, European Defence Agency . 51

368 Research handbook on the EU’s common foreign and security policy and cyber defence doctrines developed by the military’.54 The EUMS also plays a role in EU cyber defence, primarily by developing policy to ensure that the Member States provide sufficient collective protection to the EU force in military operations. The goal is that cybersecurity issues are embedded in each stage of CSDP missions from the planning to the force-generation phase. This requires greater clarity about how to assess and identify potential cybersecurity risks at each of the different stages. 5.2 NATO Cooperation Another pillar of EU cyber defence policy is cooperation with key partners, including NATO. The EU and NATO share some of the same challenges, namely ensuring an adequate level of cyber defence capabilities in operations led by those bodies. Cyber defence is one of NATO’s core tasks and at the 2014 Wales Summit NATO adopted an enhanced policy and action plan on cyber defence. Like the EU, it is also undergoing a similar process to enhance its own cyber defence capabilities. A dialogue between the EU and NATO has been established in order to find fields of common interest, for instance by using common standards in cybersecurity and defence matters. CERT-EU, responsible for the EU institutions, also entered into a technical agreement relating to information sharing with the NATO Computer incident response capability (NCIRC).55 The European Council Conclusions of December 2016 called for a strengthening of European security and defence through closer and reinforced cooperation with NATO.56 It urged swift follow-up of the December 2016 Council conclusions on EU–NATO cooperation, which implement the joint declaration by EU and NATO leaders at the margins of the Warsaw Summit.57 Cybersecurity and cyber defence are listed as areas for closer EU–NATO cooperation. Along with terrorism and organised crime, cybersecurity and cyber defence are conceived as ‘hybrid threats’,58 which are a priority of the EU and NATO. The document sets out practical areas of cooperation. For example, the EU and NATO will exchange concepts on how to integrate cyber defence into the planning of missions and operations, with a view to greater interoperability, and the EU and NATO will harmonise training requirements in both institutions and include each other’s staff in training and cyber defence exercises. It encourages cooperation in the field of cyber defence research, building upon the Technical Arrangement on Cyber Defence concluded between NATO and the EU in February 2016. The agreement sets out ways to share best practices between the two technical centres of each organisation (NCIRC and CERT-EU). 54

Christou (n 26) 139. ‘EU and NATO Increase Information Sharing on Cyber Incidents – Press Release’, European External Action Service, 10 February 2016. 56 European Council meeting (15 December 2016) EUCO 34/16, Brussels, 15 December 2016, point 10. 57 Council Conclusions on the Implementation of the Joint Declaration by the President of the European Council, the President of the European Commission and the Secretary General of the North Atlantic Treaty Organization, 15283/16, Brussels, 6 December 2016. 58 See Chapter 6, Daniel Fiott, ‘Military CSDP operations: strategy, financing, effectiveness’ on ‘hybrid threats’. 55

The European Union as a cybersecurity actor 369 The EU and NATO share the common goal of protecting the communication systems and infrastructure of their Member States. Yet neither of these organisations will become central cyber defence institutions in their own right, instead supporting and facilitating action by their membership. Beyond technological cooperation between the EU and NATO, they could also further contribute to the development of international norms that apply to cyberspace (see below).

6. EXTERNAL DIMENSION OF CYBERSECURITY The sections above relate mainly to the EU’s internal policies regarding cybercrime, network and information security, and cyber defence. Yet an effective policy also requires greater action at the international level. Since cybersecurity has both internal and external dimensions, it is a field where different Union competences must be combined.59 The EUCSS outlines the goal of establishing a coherent international cyberspace policy in order to promote core EU values.60 Regarding NIS, the Commission stresses that a purely EU approach will not be enough to counter the challenges posed: ‘[a]lthough the objective of building a coherent and cooperative approach within the EU remains as important as ever, it needs to be embedded into a global coordination strategy reaching out to key partners, be they individual nations or relevant international organisations’.61 It is in the external dimension of cybersecurity policy where the EU can potentially have a greater impact, by co-operating with states, international organisations and non-state bodies, and by influencing the development of norms at the international level. The European Principles and Guidelines for Internet Resilience and Stability,62 developed by the European Forum for Member States on public policies for security and resilience in the context of Critical Information Infrastructure Protection,63 aims to set out a common European approach, establishing guidelines and principles that are to guide international discussion and cooperation with third states, international organisations, and private entities. One of these principles is that action taken to ensure stability and resilience of the internet must conform to the interests and values of the EU. It is already evident that EU and Member State policies in this field must respect fundamental values such as democracy and the rule of law, and respect human rights, including those enshrined in the EU Charter of Fundamental Rights and Freedoms. Yet this principle acknowledges that the goal of ensuring cyber resilience comes with particular risks in terms of fundamental rights, including concerns regarding privacy, data protection and due process. States may justify the use of massive surveillance and 59

Wessel (n 7) 404. EUCSS (n 13) 3. 61 European Commission, Communication on Critical Information Infrastructure Protection, ‘Achievements and next steps: towards global cyber-security’, Brussels, 31.3.2011, 4. 62 European Principles and Guidelines for Internet Resilience and Stability (2011). 63 The European Forum for Member States (EFMS), was established in 2009 as a follow-up to the CIIP policy initiative adopted by the European Commission on 30 March 2009. See COM(2009) 149 of 30.03.2009, ‘Protecting Europe from large scale cyber-attacks and disruptions: enhancing preparedness, security and resilience’. 60

370 Research handbook on the EU’s common foreign and security policy monitoring of internet activity or the blocking of internet connections and communications by highlighting the increased security they bring, but such activities may undermine these core values and be disproportionate to the goal of heightened resilience.64 Importantly, these principles not only apply to the activities of the EU and the Member States, but should also be promoted at the international level. It is in this field of international cooperation where the EU and the Member States are most likely to have influence. The EU has a stated objective of improving its role as a global actor and can do more to influence the development of norms at the international level. First, the EU has been involved in bilateral cyber dialogues with a number of partners, including the US, India, Brazil, China, South Korea and Japan. Notably this includes the EU-US Working Group on Cybersecurity and Cybercrime, which works to foster greater cooperation between the EU and US, mainly in the field of cybercrime. The EU is currently active in many of the multilateral forums that are responsible for developing policy on cyber-related issues. International governance bodies include the Organisation for Economic Co-operation and Development (OECD),65 the United Nations General Assembly (UNGA),66 the Organization for Security and Co-operation in Europe (OSCE), the International Telecommunication Union (ITU), the World Summit on the Information Society (WSIS) and the Internet Governance Forum (IGF). In these bodies, the EU will seek to uphold certain ‘core values’ such as respect for democracy, human rights and the rule of law. The 2015 Council Conclusions on Cyber Diplomacy stress that it is essential that an EU approach to cyber diplomacy at a global level ‘promotes and protects human rights and is grounded on the fundamental EU values of democracy, human rights and the rule of law, including the right to freedom of expression; access to information and right to privacy’.67 As discussed above, whereas some states, including China and Russia, view cybersecurity as requiring the state to play a strong top-down role, the EU approach stresses the need for an open and secure internet, which is not built on the logic of control. Since there is disagreement on how to tackle these issues, the EU can play a greater role in influencing developments within these multilateral forums. Another external aspect of cybersecurity policy is deciding how the EU should respond to cyberattacks, especially those that are supported by states. This issue concerns not only the technical response, but also questions relating to the EU’s political and diplomatic response to coercive cyber operations, against both EU Member States and third states. In this vein, the Council Conclusions on a Framework for a Joint EU Diplomatic Response to Malicious Cyber Activities (‘Cyber Diplomacy 64

European Principles (n 62). E.g. OECD Working Party on Security and Privacy in the Digital Economy (SPDE) develops policy recommendations in the field of digital security and privacy protection. 66 E.g. UNGA Res. 64/211 (2009) Creation of a global culture of cybersecurity and taking stock of national efforts to protect critical information infrastructures; UN Res. 58/199 (2004) Creation of a global culture of cybersecurity and the protection of critical information infrastructures. 67 Council Conclusions on Cyber Diplomacy, Brussels, 11 February 2015. 65

The European Union as a cybersecurity actor 371 Toolbox’) adopted on 19 June 2017 are a first step.68 They stress the EU’s commitment to resolving international disputes in cyberspace through peaceful and diplomatic means and underline the need for a joint diplomatic response in the case of malicious cyber activity, in order to prevent and deter such activity. What would such a diplomatic response involve? For instance, restrictive measures taken under the EU’s CFSP could be employed in response to a cyber-attack against individuals and third states. The EU continues to develop a Framework for a Joint EU Diplomatic Response to Malicious Cyber Activities, stressing that they must respect certain key principles such as respect for international law and fundamental rights. The suspected statesponsored cyber-attack on Kiev’s power grid is an example of the type of attack that may require such a coordinated diplomatic and political response by the EU.69 A coordinated attack on an EU Member State would also require a political response at the EU level. Developing a set of tools to respond to cyber-attacks remains an important part of the external dimension of cybersecurity. A related question is how the EU Member States should treat a very serious cyber incident against an EU Member State. According to the EUCSS, ‘a particularly serious cyber incident or attack could constitute sufficient ground for a Member State to invoke the EU Solidarity Clause (Article 222 of the Treaty on the Functioning of the European Union (TFEU))’.70 There is also the question of whether a serious cyber incident could trigger Article 42(7) of the Treaty on European Union (TEU)71 (‘mutual defence clause’). This depends on the thresholds that must be met for such an incident to be understood as an ‘armed attack’, which is an issue of public international law. The EU also strongly supports the concept that norms of international law must also be applied to the cyber dimension, including cyber warfare. Yet the application of international legal norms to the realm of cyberspace is in a state of development. The Tallinn Manual 2.0, for instance, is a project analysing how existing international law norms are to be applied to cyberspace. Developed by legal experts, and facilitated by the NATO Cooperative Cyber Defence Centre of Excellence, the Manual examines the international law issues associated with cyber warfare, such as the law of responsibility and the law of armed conflict.72 In the UN context, work is also under way, albeit slowly, in the United Nations Groups of Governmental Experts [UN GGE] on Developments in the Field of Information and Telecommunications in the context of international security. As these international rules begin to develop, there is potential for the EU and the Member States to influence such rules regarding the application of international law to cyberspace. While the EU and the Member States prefer non-binding and voluntary standards, the EU can influence developments to ensure a free and secure internet and 68 Council Conclusions on a Framework for a Joint EU Diplomatic Response to Malicious Cyber Activities (‘Cyber Diplomacy Toolbox’), 10474/17, Brussels, 19 June 2017. 69 ‘Ukraine power cut “was cyber-attack”’, BBC News, 11 January 2017 . 70 EUCSS (n 13) 19. 71 Article 42(7) TEU, ‘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’. 72 NATO Cooperative Cyber Defence Centre of Excellence, Tallinn Manual Process .

372 Research handbook on the EU’s common foreign and security policy rules that respect human rights. In addition to developing internal rules to promote cybersecurity, the EU can also be a leader in developing the legal norms that apply to cyberspace. To date, however, the EU is lacking a comprehensive framework that would allow the EU to play such a role at the international level.

7. CONCLUSION A common theme in cybersecurity debates is the blurring of boundaries: between public authorities and non-state actors; between criminal behaviour and politically motivated attacks; between law enforcement and military action; between domestic and international action; between the physical and the online worlds. Such a blurring of categories can pose challenges for the Union – which is built upon clear demarcation on such issues – when seeking to combat cyberthreats in a coherent and effective fashion. Yet the EU has made many advances in cybersecurity policy since the 2000s, and the 2013 EUCSS seeks to ensure that the EU has an approach that cuts across various policy fields. A comprehensive vision and unified approach have not yet emerged. The multitude of actors involved in cybersecurity, the lack of a central body responsible for taking the lead in these initiatives, the lack of a formal legal basis for cybersecurity in the EU Treaties, and the absence of a common understanding of cyber terminology all make it difficult for such a European vision to develop. These issues should be addressed as the EU updates its cybersecurity strategy. Most of the EU’s action in the field of cybersecurity has dealt with internal EU policies (e.g. the internal market) or is linked to criminal law (combating cybercrime). In the fields of cybercrime and NIS, moreover, soft law instruments are being replaced by legislation.73 Cybersecurity, however, touches on a broad range of other policy fields, and cyber defence is now emerging as a key issue where the EU must catch up. Cybersecurity and cyber defence can no longer be seen as internal matters for the EU and the Member States; cybersecurity policy has an important international element. The EU should continue to strengthen its cyber policies, including through the CFSP framework. Yet the inter-governmental character of decision making and the unwillingness of Member States to give the EU a central role in a core sovereign competence present a challenge to this goal. The EU has not sought to become a ‘cyber power’ with offensive capabilities. Several aspects of the EU’s approach to cybersecurity – its legalistic framework, the multi-stakeholder approach, its emphasis on a secure and open internet, its focus on fundamental rights and values – contrast with the approach taken by a number of states that are active in the field. Given the EU’s diverging approach, it has been argued that the EU could be viewed as a potential ‘institutional laboratory’ for governance in this field.74 Its defensive, bottom-up approach contrasts with those states who approach the issue with the logic of control. Much of the EU’s 73 Elaine Fahey, ‘The EU’s Cybercrime and Cyber-Security Rulemaking’ (2014) 5 European Journal of Risk Regulation 46, 49. 74 Emmanuel Darmois and Geneviève Schméder, ‘Cybersecurity: a Case for a European Approach’, Security in Transition Working Paper (2016) 19: ‘given its unique features, [the EU] has in theory the potential to be a model for other regions of the world’.

The European Union as a cybersecurity actor 373 response, moreover, has been to ensure that a technical response to cyberthreats is in place. EU policy must also deal with the political and diplomatic dimension, especially as threats of state-sponsored cyber-attacks increase. How will the EU and the Member States react at the international level to a serious cyber incident against a Member State, or against the EU institutions? The EU has a role to play at the international level by ensuring that certain EU interests and values are reflected in global decision making. Cybersecurity and cyber defence can therefore be a field where the EU becomes a normative global actor, capable of establishing a culture of cybersecurity that extends beyond the EU. This includes a commitment to an open and secure internet, and to ensuing fundamental rights are not sacrificed in the name of protecting cybersecurity. While Member States remain dominant in the field of cyber defence, the EU can act as much more than just a coordinator and a facilitator of policies: it can develop into a cybersecurity actor in its own right.

18. EU external health security policy and law Anniek de Ruijter

In an interdependent society, health risks may come from anywhere: health crises may start with industrial pollution, a veterinary epidemic or a natural disaster. It is therefore not only geographical boundaries that need to be removed, but also sectoral ones.1

1. INTRODUCTION The link between public health and security is not new. As early as 600 BC, infectious disease was recognized for its possible use in warfare.2 Polluting the water or infecting the enemy’s livestock was a common strategy of war.3 The use of smallpox in the Americas is another example of the use of infectious disease as a biological weapon in history.4 In 1975 the United Nations (UN) Biological Weapons Convention (BWC) entered into force, banning the development, production and stockpiling of biological weapons.5 More recently, the term ‘health security’ or ‘biosecurity’ has been used to identify the integrated approach to ‘society’s collective responsibility to safeguard the population from dangers presented by pathogenic microbes – whether naturally occurring or intentionally released’.6 What is new in this approach is that where the terms ‘biosecurity’ or ‘health security’ would once generally refer to the use of pathogens in bio-warfare, ‘health security’ now also refers more broadly to the dangers of naturally occurring infectious disease and other traditionally singular public health issues.7 One of the underlying reasons for the new approach is the potential scale and threat posed by these events to the changed global trade and travel environment in which public health emergencies occur.8 1 See para 2.7 of the Opinion of the European Economic and Social Committee, ‘Proposal for a Decision of the European Parliament and of the Council on serious cross-border threats to health’ COM (2011) 866 final. 2 Stefan Riedel, ‘Biological Warfare and Bioterrorism: A Historical Review’ (2004) 17 Proceedings 400. 3 M Wheelis, ‘Biological Warfare at the 1346 Siege of Caffa’ (2002) 8(9) Emerging Infectious Disease Journal. 4 In South America Pizarro wilfully gave the natives variola-infected clothes: Riedel (n 2). 5 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, entry into Force 26 March 1975. 6 David Fidler and Lawrence Gostin, ‘Biosecurity Under the Rule of Law’ (2007) 38 Case Western Reserve Journal of International Law 437, 438. 7 David Fidler and Lawrence Gostin, Biosecurity in the Global Age: Biological Weapons, Public Health, and the Rule of Law (Stanford University Press 2007). 8 ibid.

374

EU external health security policy and law 375 Similarly, in the EU the term ‘health security’ generally refers to policy that aims to address the security aspects of public health emergencies that can be the result of communicable disease outbreaks, pandemics, emerging or re-emerging diseases, antimicrobial resistance, natural or man-made disasters, and humanitarian emergencies with health consequences. This includes threats from chemical, biological, radiological and nuclear accidents or attacks (CBRN).9 Internally, this policy is created on the basis of Article 168 TFEU and the 2013 ‘Health Threats Decision’.10 Externally, the EU coordinates its actions with the World Health Organization (WHO) Regional office, which has 53 member states. In this context, the EU and the WHO work together within the framework of the International Health Regulations (IHR).11 Furthermore, the EU recently launched a European Medical Corps to contribute to a Global Health Emergency Workforce.12 In this chapter the external outlines of the EU’s health security law and policy are traced as a newly emerging aspect of EU external relations law and policy.13 To what extent is EU health security policy emerging and what questions does this development raise with respect to EU law and policy? The protection of human health is particularly salient at the heart of the EU’s external relations law in its Common Commercial Policy and as part of its development policy.14 In the Area of Freedom Security and Justice and the EU’s Common Foreign and Security Policy, the links are less obvious but, as this chapter will outline, do exist in their early stages.15 Hence, the EU Global Strategy in the area of Security and Defence does touch on a number of specific aspects of health security. Furthermore, EU health security as a new type of policy showcases a specific example of the broadening of the EU’s CFSP/CSDP to bring the internal– external nexus of EU security closer together.16

9

Hylke Dijkstra and Anniek de Ruijter, ‘The Health-Security Nexus and the European Union: Toward a Research Agenda’ (2017) European Journal of Risk Regulation 1. 10 Decision No 1082/2013/EU of the European Parliament and of the Council of 22 October 2013 on Serious Cross-Border Threats to Health and Repealing Decision No 2119/98/EC OJ 2013 L 293/1. 11 WHO, ‘International Health Regulations 2005 (2nd edn, 2008). 12 ‘The Objectives, Principles and Modalities for Continued Cooperation between the European Commission and the WHO Regional Office for Europe (September 2015). Available at: . 13 TK Hervey and JV McHale, European Union Health Law (CUP 2015); see Tamara K Hervey, ‘The EU’s (Emergent) Global Health Law and Policy’ in Tamara K Hervey, Calum Alasdair Young and Louise E Bishop (eds), Research Handbook on EU Health Law and Policy (Edward Elgar Publishing 2017). 14 Hervey and McHale (n 13) 457; Panos Koutrakos, The EU Common Security and Defence Policy (OUP 2013), where he outlines the central place of EU commercial policy as being at the heart of its external relations law. Also see references by Bart Van Vooren and Ramses A Wessel, EU External Relations Law: Text, Cases and Materials (CUP 2014); Hervey and McHale (n 13) 515. 15 See Hervey (n 13). 16 Johan Eriksson and Mark Rhinard, ‘The Internal–External Security Nexus: Notes on an Emerging Research Agenda’ (2009) 44 Cooperation and Conflict 243.

376 Research handbook on the EU’s common foreign and security policy The chapter first maps the relationship between public health and security and conceptualizes health as a possible transboundary security issue. The second step is to trace health policy more generally in EU external relations law in the context of the TFEU. Third, the chapter moves to a more specific exploration of EU health as a security issue, particularly, but not solely, in the context of the CFSP. In a last step the chapter delves into the internal–external nexus, where generally it is concluded that EU health security policy largely takes place under the TFEU heading rather than under the heading of the CFSP. The chapter builds in part on the first exploration of a research agenda on the public health–security nexus in various policy domains.17

2. HEALTH AS A TRANSBOUNDARY SECURITY ISSUE Health security can be understood as a policy that is developing in a context of broadening security policy – beyond the realm of foreign security and defence (national security). The 1994 United Nations Development Programme report for the first time introduced the concept of ‘health security’ to refer to an important aspect of a broader idea of ‘human security’. Human security was meant to differ from the concept of (state) security, which relates to conflicts between nation states.18 This blurring of the definition of security policy has also crept into the EU’s use of the concept of security, the latter being understood to also include the environment, cyber security, energy security and health.19 Indeed, the broadening of what security policy entails has been put forward as a ‘paradigm shift’ in which the post-Cold War assumptions about the security threats facing nation states came with relatively clear understandings, entrenched and institutionalized practices, rules and organizations.20 Hence, health security is a relatively recent policy issue that challenges the internal–external security nexus. One of the theoretical frameworks used in the literature to explain its occurrence is ‘securitization’.21 In this view, ‘normal’ public health issues such as infectious disease can become securitized by political actors and reframed as security threats.22 Furthermore, as Elbe outlines, health security policy may also have the effect of ‘medicalizing’ security issues.23 At the same time, besides their 17

Dijkstra and de Ruijter (n 9). United Nations, Human Development Report (OUP 1994) chapter 2. 19 Panos Koutrakos, The EU Common Security and Defence Policy (OUP 2013) 82. 20 Arjen Boin, Magnus Ekengren and Mark Rhinard (eds), Security in Transition, Towards a New Paradigm for the European Union (National Defence College 2008). 21 Barry Buzan, Ole Wæver and Jaap de Wilde, Security: A New Framework for Analysis (Lynne Rienner Publishers 1998). Colin McInnes and Kelley Lee, ‘Health, Security and Foreign Policy’ (2006) 32 Review of International Studies 5. Stefan Elbe, ‘Pandemics on the Radar Screen: Health Security, Infectious Disease and the Medicalisation of Insecurity’ (2011) 59 Political Studies 848. See further discussion of securitization and health security policy in Dijkstra and de Ruijter (n 9). 22 Anniek de Ruijter, ‘Mixing EU Security and Public Health in the Health Threats Decision’ in Anniek de Ruijter and Maria Weimer (eds), EU Risk Regulation, Expert and Executive Power (Hart Publishing 2017). 23 Elbe (n 21). 18

EU external health security policy and law 377 framing,24 health problems, in a quickly globalizing and more interdependent world, can become ‘systemic risks’ and actual transboundary security issues.25 In this perspective security issues are now more difficult to predict.26 An unknown pathogen may become a threat to security, given that we do not know how fast it will spread, what infrastructures may be affected and to what extent. But responses to CBRN threats may also intertwine with public health alert and response systems.27 This means that we have moved from a world of calculable predictable epidemiological risks to a world in which we need ‘preparedness’ for unknown and incalculable security threats.28 On the whole, security is currently considered to be more than the absence of a military threat between nation states. Internationally, health security can be positioned within the internationalization of civil protection and security policy and has both a societal and individual connotation.29 Health security focuses on preparing for and reducing the possibilities of a major threat to public health. The scale, size and impact matter for its designation as a health security issue. A local or seasonal flu outbreak will remain squarely within the policy realm of public health, but if that flu virus mutates from birds to humans (H5N1) or from pigs to humans (H1N1) it is likely to be considered as a threat to health security. The speed at which humans travel and the increased globalization of trade in food and animal products changes the context as well.30 Furthermore, to speak of ‘naturally occurring’ does not mean that human activity has no role to play in the emergence and rapid spread of disease. Contemporary medical 24 Stephen J Collier and Andrew Lakoff, ‘Health Security, and New Biological Threats: Reconfigurations of Expertise’ in Chloe E Bird, Peter Conrad, Allen M Fremont and Stefan Timmermans (eds), Handbook of Medical Sociology, Sixth Edition (Vanderbilt University Press 2010). Stefan Elbe, ‘Haggling over Viruses: The Downside Risks of Securitizing Infectious Disease’ (2010) 25 Health Policy and Planning 476. Stephen J Collier and Andrew Lakoff, ‘The Vulnerability of Vital Systems: How “Critical Infrastructure” Became a Security Problem’ in Myriam Dunn Cavelty and Kristian Soby Kristensen (eds), The Politics of Securing the Homeland: Critical Infrastructure, Risk and Securitisation (Routledge 2008). 25 Eriksson and Rhinard (n 16) 247. 26 Marlies Glasius and Mary Kaldor, A Human Security Doctrine for Europe: Project, Principles, Practicalities (Routledge 2006).Commission on Human Security, ‘Human Security Now’ (United Nations 2003). 27 Anniek de Ruijter, EU Health Law & Policy: The Expansion of EU Power in Public Health and Health Care (OUP 2018). 28 Eriksson and Rhinard (n 16). Also see David Fidler and Lawrence Gostin, Biosecurity in the Global Age: Biological Weapons, Public Health, and the Rule of Law (Stanford University Press 2007). And see David Fidler, ‘A Pathology of Public Health Securitism: Approaching Pandemics as Security Threats’ in Andrew Cooper (ed.), Governing Global Health: Challenge, Response, Innovation (Routledge 2016). 29 David L Heymann and Sudeep Chand, ‘Diplomacy and Global Health Security’ in Ilona Kickbusch and others (eds), Global Health Diplomacy: Concepts, Issues, Actors, Instruments, Fora and Cases (Springer 2013). 30 Thea Emmerling and Julia Heydemann, ‘The EU as an Actor in Global Health Diplomacy’ in I Kickbusch, G Lister, M Told and N Drager (eds), Global Health Diplomacy: Concepts, Issues, Actors, Instruments, Fora and Cases (Springer 2013) .

378 Research handbook on the EU’s common foreign and security policy and veterinary practice, with its (over)use of antibiotics, leads to the emergence of incredibly strong drug-resistant strains of e.g. streptococcus and staphylococcus infections, tuberculosis, malaria, cholera and influenza.31 Another factor that contributes to the current threats of natural causes is overpopulation, particularly in large cities, where in the closely populated areas the lack of access to clean water and sanitation in developing countries can increase the risk of a large-scale outbreak of infectious disease.32 Health security, however, refers to more than a policy relating to large-scale and severe public health events. Health security in terms of its techniques and approach is closely linked to existing security issues, such as that of the use of biological weapons. Internationally, the Geneva Protocol of 1925 banned the use of bacteriological agents in warfare (international cooperation on public health and infectious diseases dates back to the 19th century).33 The current approach, however, both internationally and in the EU, is that in health security (or ‘biosecurity’) the policy effort addresses the use of biological and chemical weapons and the threat from naturally occurring infections together.34 The underlying idea is that the current rate at which pathogens can originate in unknown locations and cross boundaries, such that societies, critical infrastructures and human lives disintegrate, demands similar policy and response mechanisms to those required by any other security issue. ‘Health security’ also differs from ‘public health’: the latter is seen as a field of policy, law or science that refers to the responsibility of public authorities to protect the population as a whole (vertical legal relations) as opposed to health care, or medical care, which addresses access to individual health care (horizontal legal relations – depending on the public/private nature and organization of the health care system).35 Public health has been part of human life for centuries, particularly with respect to combating infectious disease. There are old religious texts that refer to isolation and quarantine strategies – detaining sailors on boats and in ports.36 Public health as a science and a policy, as we now know it, developed in the 19th century and initially focused on the understanding and combating of infectious disease through public inoculation strategies.37 However, also the conditions of populations, including the occurrence of disease more generally, has increasingly become the subject of exhaustive statistical analysis. 31

Catherine Lo Yuk-ping and Nicholas Thomas, ‘How Is Health a Security Issue? Politics, Responses and Issues’ (2010) 25 Health Policy and Planning 447. 32 ibid. 33 Fidler and Gostin (n 28) 2. 34 Fidler and Gostin (n 28); David Fidler, ‘A Pathology of Public Health Securitism: Approaching Pandemics as Security Threats’ in Andrew Cooper (ed.), Governing Global Health: Challenge, Response, Innovation (Routledge 2016). Christian Enemark, ‘The Role of the Biological Weapons Convention in Disease Surveillance and Response’ (2010) 25 Health Policy and Planning 486. 35 Lawrence O Gostin, Lindsay F Wiley and Thomas R Frieden, Public Health Law: Power, Duty, Restraint (3rd edn, University of California Press 2016). 36 Philip A Mackowiak and Paul S Sehdev, ‘The Origin of Quarantine’ (2002) 35 Clinical Infectious Diseases 1071. 37 G Rosen, A History of Public Health (Johns Hopkins University Press 1958) 168.

EU external health security policy and law 379 The development of public health over time has contributed to intensive eradication campaigns for a number of diseases, particularly polio and smallpox.38 The general focus of public health policy is to curb the naturally occurring spread of infectious disease and to promote the overall health of the population, also with regard to non-communicable disease. Health security policy can hence be seen as being beyond public health, or somewhere between public health and security policy, where public health problems (man-made, or naturally occurring) can create sudden disruptions to the normal functioning of society, and the manner in which these problems are addressed is through a mix of public health and security expertise, law and policy.39 In the following section the outlines of EU external, or global health law are considered, before zooming in on EU external health security policy and law in health security.

3. EU EXTERNAL HEALTH LAW The EU’s internal public health policy and law find their origins in the programmes to address ‘black lung disease’ in coalmines and in the development of health and safety standards for the steel industry.40 Externally, however, the EU has developed its cooperation with the WHO on infectious diseases from the 1970s onwards.41 The WHO is one of the most important international actors for the EU’s external relations in the field of public health; the Union has created a powerful role for itself in WHO policy and law42 and is seen as a ‘Global Health Actor’ in this regard.43 The main aim of the WHO as a specialized agency of the UN is to promote the principles of happiness, harmonious relations and the security of all peoples.44 The WHO’s International Health 38

F Fenner and others, Smallpox and Its Eradication (World Health Organization 1988). de Ruijter (n 22); Mark Flear, Governing Public Health: EU Law, Regulation and Biopolitics (Bloomsbury Publishing 2015); Dijkstra and de Ruijter (n 9). 40 Mackowiak and Sehdev (n 36) 1071. Also see, Commission de la Securité, de Hygiene Du Travail et de La Protection Sanitaire (Commission Permanente) Resolution OJ 1058 L 1. 41 Exchange of Letters between the European Communities and the World Health Organization Laying down the Procedure for Cooperation between the Two Organizations – Memorandum Defining the Arrangements for Cooperation between the World Health Organization and the European Communities (72/725/ECSC, EEC, Euratom) OJ 1982 L 300/20; Exchange of Letters between the World Health Organization and the Commission of the European Communities Concerning the Consolidation and Intensification of Cooperation (2001/C1/04) OJ 2001 C 1/7; J Giesecke and J Weinberg, ‘A European Centre for Infectious Disease?’ (1998) 352 The Lancet. 42 Samantha Battams, Louise van Schaik and Remco van de Pas, ‘The EU as a Global Health Actor: Policy Coherence, Health Diplomacy and WHO Reform’ (2014) 19 European Foreign Affairs Review 539. 43 Vincent Rollet and Peter Chang, ‘Is the European Union a Global Health Actor? An Analysis of Its Capacities, Involvement and Challenges’ (2013) 18 European Foreign Affairs Review 309. Also see, on EU–ASEAN relations, Marie Lamy and Kai Phua, ‘Southeast Asian Cooperation in Health: A Comparative Perspective on Regional Health Governance in ASEAN and the EU’ (2012) 10 Asia Europe Journal 233. 44 Preamble WHO Constitution, ‘Constitution of the World Health Organization’ (World Health Organization 1948). 39

380 Research handbook on the EU’s common foreign and security policy Regulations are binding on its member states. The IHR regulate the response and international coordination of public health emergencies. Both EU trade law and the work of the European Centre for Disease Control (ECDC) are linked to the IHR system.45 Furthermore, the EU, although not a member of the WHO, is signatory to a number of conventions of the WHO.46 The EU’s role in global health law is a relatively underdeveloped and underresearched one.47 The research and development of the understanding of a ‘global health law’ itself is disputed and is largely seen in the compound of norms and processes of international law and fundamental rights that intersect with health.48 Global health law as outlined by Gostin and others has a specific ‘public health’ dimension, which refers to the law as it aims to protect and promote the health of populations rather than as enabling individual access to health care (‘health care law/medical law’).49 However, access to medical care and health care services, once seen as the last ‘secret garden’ of national welfare states,50 has also become part of a globalized market place, where medical tourism is revolutionizing and globalizing the health services industry.51 As Gostin outlines: Global health law is the system and practice of international law – both hard law (e.g. treaties that bind states) and soft instruments (e.g. codes of practice negotiated by states) and soft instruments (e.g. codes of practice negotiated by states) – that shapes norms, processes and institutions to attain the highest possible standards of physical and mental health for the world’s populations.52

The emerging external health law of the EU encompasses a wide range of policy topics in the field of human health such as: medical tourism; communicable disease; the health and safety of globally traded products; the regulation of pharmaceuticals and medical devices; international clinical trials regulation; trade (and foreign direct investment) in health services; the migration of health professionals; access to medicines; and the ‘right to health’.53 As Hervey and McHale outline in their seminal 45

Hervey and McHale (n 13) 448. Hervey (n 13). 47 Hervey and McHale (n 13) 432. 48 ibid 435. LO Gostin, ‘Public Health, Ethics, and Human Rights: A Tribute to the Late Jonathan Mann’ (2007) 29 The Journal of Law, Medicine and Ethics 121; B Toebes, The Right to Health as a Human Right in International Law (Hart/Intersentia 1999); J Rothmar Herrmann and B Toebes, ‘The European Union and Health and Human Rights’ (2011) 4 European Human Rights Law Review 419. 49 LO Gostin, ‘A Theory and Definition of Public Health Law’ (2007) 10 Journal of Health Care Law and Policy 1. 50 S Greer, The Politics of European Union Health Policies (Open University Press 2009). 51 I Glenn Cohen, Patients with Passports: Medical Tourism, Law, and Ethics (1st edn, OUP 2014); IG Cohen, The Globalization of Health Care: Legal and Ethical Issues (OUP 2013); Nathan Cortez, ‘Patients Without Borders: The Emerging Global Market for Patients and the Evolution of Modern Health Care’ (2008) 83 Indiana Law Journal 71. 52 Lawrence O Gostin, Global Health Law (1st edn, Harvard University Press 2014). 53 Hervey (n 13). 46

EU external health security policy and law 381 textbook on EU health law, the field lacks the conceptual unity of EU health, law which has become increasingly prevalent in internal EU health law,54 but the EU’s role in global health law is increasingly recognized.55 Legally, the Treaty seems to leave little space for developing a far-reaching EU external health law: Article 207(4)(b) TFEU outlines that with respect to actions in the field of trade, health services (but not public health) are subject to unanimous voting in the Council, and where the Treaties exclude harmonization, Article 207(6) TFEU applies. Article 207(6) TFEU iterates the limits of the use of EU powers to adopt regulations that reflect trade agreements, to the extent that the Treaty excludes harmonization. Article 168(7) TFEU retains competences in the field of health for the definition of their health policies and the organization and delivery of health services and medical care. This paragraph is particularly aimed at limiting EU powers in the highly redistributive area of Member States’ health care policy – although internally a number of important health care ‘markets’ are regulated by internal market law.56 Furthermore, Article 6 TFEU also limits legislation and regulatory harmonization, and merely outlines a complementary and coordination role for the EU in public health. The external and internal connection for making EU action in the field of health possible due to Article 207(6) might imply that for most EU external health law, mixed agreements would be the only way the EU could create EU external health law. Article 168(1) TFEU is a ‘mainstreaming provision’, echoed in the general provision of Article 9 TFEU. Both articles are aimed at the protection of a high level of (public) health in all EU policies and regulation. This means that in the formulation of its trade agreements and regulations, the EU would have the obligation to protect public health. Generally then, the possibility for EU external health law is limited, depending on how narrowly EU competence in the field is construed.57 Nonetheless, the EU plays an important role in norm-setting with regard to public health in a number of more or less formal ways, particularly in the area of trade,58 where the EU’s role has been important in carving out health protections.59 Many of the international agreements between the EU and other countries address goods and services. And since most of these can have 54 Dorte Sindbjerg Martinsen and Hans Vollaard, ‘The Rise of a European Healthcare Union’ (2015) Special Issue Comparative European Politics. Hervey, Young and Bishop (n 13). 55 Tamara K Hervey and Jean V McHale, European Union Health Law: Themes and Implications (CUP 2015). 56 Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the Application of Patients’ Rights in Cross-Border Healthcare OJ 2011 L 88/45. Commission Regulation (EC) No 507/2006 of 29 March 2006 on the Conditional Marketing Authorization for Medicinal Products for Human Use Falling within the Scope of Regulation (EC) No 726/2004 of the European Parliament and of the Council OJ 2006 L 92/6. 57 Hervey, Young and Bishop (n 13) 449 et seq. 58 Mark Flear, ‘Ensuring Post-Brexit UK Is a “Maker” Rather than a “Taker” of Global Norms and Standards: The Case of the International Council on Harmonisation’ (Social Science Research Network 2017) SSRN Scholarly Paper ID 2992551 . Mark L Flear, ‘“Technologies of Reflexivity”: Generating Biopolitics and Institutional Risk to Supplement Global Public Health Security’ (2017) 8 European Journal of Risk Regulation 658. 59 Holly Jarman and M Koivusalo, ‘Trade and Health in the European Union’ in Hervey, Young and Bishop (n 13).

382 Research handbook on the EU’s common foreign and security policy an impact on public health, such as food, tobacco or alcohol, pharmaceuticals or medical devices, the public health aspects are built into the very fibre of international relations law. A case in point is the EU’s role in the United Nations Food and Agriculture Office (FAO), including its membership in the Codex Alimentarius Commission (CAC).60 The CAC creates harmonized standards for the health and safety of food. Another site of EU impact in this regard is the GATT of the World Trade Organization (WTO). Some of the GATT (Article XX(b) GATT) exceptions are created for the protection of public health.61 Also in Article 2.2 of the Agreement of Technical Barriers to Trade, mandatory requirements are carved out for food and its characteristics that must not go beyond what is needed to meet legitimate objectives, which include the protection of public health. Pharmaceuticals, medical devices, blood and blood tissue and even the provision of health services are also affected by EU trade policies.62 In a recent publication Jarman and Koivusalo trace the nature of these external EU health policies in detail and sound a note of caution about the lack of an actual health perspective and expertise at the EU negotiating table on these matters.63 Health also features prominently in EU development law; the latter is based on Article 208 TFEU, which for the EU creates a complementary competence to the development programmes of its Member States. Article 208 TFEU outlines the objective of reducing and eradicating poverty. With the ‘Millennium Development Goals’ there were a number of programmes supported by the EU that were related to poverty as a cause for ill-health and poverty as it relates to building infrastructure and capacity.64 Furthermore, Article 208 TFEU underpins a number of international agreements between the EU and third states on supporting projects in the field of public health, which also focus on primary care and communicable disease control.65 Other important policies for international agreements have been the illegal trade of narcotics and access to essential medicines, and the application of TRIPS health. The Millennium Development Goals have now been replaced by the Sustainable Development Goals, which have a wider connotation and create certain difficulties in reaching their global health objective.66 Importantly, development goals are increasingly interwoven with trade policies. In this respect the EU is becoming more focused on the creation of ‘fourth wave’ trade agreements, which have a wide scope and include the fields of external EU health policies, which have been considered to be part of EU development

60 The EU is highly active in the trade of food and feed. Public health protection mechanisms are a central concern in this regard. See for a number of examples of the roles and memberships of the EU in this regard (also in bilateral relations and neighbourhood policy): . 61 WTO, the General Agreement on Tariffs and Trade 1994 (GATT 1994). 62 Hervey (n 13). 63 Jarman and Koivusalo (n 59). 64 Hervey and McHale (n 55) 463. 65 Hervey (n 13). 66 Meri Koivusalo, ‘Global Health Policy in Sustainable Development Goals’ (2017) 17 Global Social Policy 224.

EU external health security policy and law 383 law. In this regard, health is increasingly seen as a growth and competitiveness factor in external relations, rather than as a development matter.67 In sum, the EU is increasingly developing an ‘external health law’, which became more pronounced in 2010 when there were a number of EU initiatives to jump-start an explicit EU external health policy. This was related to the Lisbon amendments in 2008, when the EU was given greater competences to act in the field of public health. The Commission outlined the EU’s ambition to take on a leading role in global health in the Communication ‘The EU in Global Health’.68 In its subsequent Conclusions, the Council draws a clear link to the Millennium Development Goals (MDG) in the field of health and calls for focus on five priority areas: trade and financing, migration, security, food security and climate change.69 Later that year, the WHO and the European Commission reviewed and gave fresh impetus to the existing EU-WHO partnership.70 The important focus area here is health security, particularly the development of a uniform and efficient surveillance and alert system where the case definitions and methods for data collection, platforms on epidemic intelligence and response are harmonized.71 The following section looks more closely at the role the EU is able to play in its external health law policy with respect to health security, whereby the concept of health security as transboundary security determines the scope of the exploration, rather than the exact boundaries between the CFSP and the TFEU.

4. EU (EXTERNAL) HEALTH SECURITY POLICY Alongside trade and development, EU external action in the area of health security became more focused after the 9/11 attacks, and particularly in the aftermath of the 2001 anthrax attacks.72 In 2001 the threat of bioterrorism was specifically addressed by the G7 Global Health Security Initiative (GHSI), in which the EU is a partner, as is the WHO.73 Legally, in 2005 the IHR strengthened the obligations for WHO members to notify public health threats,74 which includes the deliberate release of a deadly pathogen. Under the IHR a ‘Public Health Emergency of International Concern (PHEIC)’ is defined in Article 1 as:

67

ibid. Global Health Comm. 445. 69 Council Conclusions on the EU Role in Global Health (Brussels, 10 May 2010, 9644/10). 70 Exchange of Letters between the World Health Organization and the Commission of the European Communities Concerning the Consolidation and Intensification of Cooperation (2001/ C1/04) OJ 2001 C 1/7. European Commission and WHO Regional Office for Europe: A Shared Vision for Joined Action – Annex 2 Joint Declaration (EUR/RC60/12) (+EUR/RC60 Conf.Doc./6, 9 September 2010, 102442). 71 ibid, 3. 72 Dijkstra and de Ruijter (n 9). 73 GHSI – Global Health Security Initiative . 74 WHO (n 11). 68

384 Research handbook on the EU’s common foreign and security policy An extraordinary event, which is determined, as provided in these Regulations: – to constitute a public health risk to other States through the international spread of disease and; – to potentially require a coordinated international response. This definition implies a situation that: is serious, unusual or unexpected; carries implications for public health beyond the affected State’s national border; and may require immediate international action.

The 2005 strengthening of the IHR and the G7 GHSI may be seen in the light of some of the shortcomings of the WHO system: the notification and warning obligations that follow from the IHR are often not in the affected states’ interest. Reporting a disease may harm trade interests. An example is the SARS epidemic, where China did not immediately notify the WHO, and where Canada did not comply with WHO travel advice, which could have warranted notification under Annex 2 of the IHR, or the Ebola crisis, which claimed over 10,000 lives before a PHEIC was declared.75 Furthermore, the WHO only has limited powers to implement sanctions for noncompliance. At the same time, some Member States do not have the capacity to respond to the public health emergencies covered by the IHR. In the WHO context the EU itself is not a state party, but does have a seat at the table and coordinates Member States’ contributions to the WHO, in order to speak as one bloc. The GHSI focuses on biological, chemical, radio-nuclear terrorism (CBRN) and influenza.76 In this respect there is an international consensus77 that, in the words of the UN Secretary General, ‘[t]he threats presented by biological weapons and natural disease epidemics weave together to form an independent policy challenge the likes of which we have never seen before’.78 In the GHSI the G7 countries work together on the joint procurement of vaccines and antibiotics, the regulation of research into the creation of a smallpox vaccine, to improve, share and coordinate emergency plans and surveillance and create improved linkages on laboratories and preparedness for radio-nuclear and chemical events. The initiative facilitates a number of working groups and networks.79 The Global Health Security Action Group (GHSAG) was established by the ministers of the G7 and is made up of senior officials that have to implement concrete actions and create a network of rapid communication in the event of a crisis.80 The current networks and groups that operate under the GHSI are a Risk Management and 75 Lawrence O Gostin and Rebecca Katz, ‘The International Health Regulations: The Governing Framework for Global Health Security’ (2016) 94 The Milbank Quarterly 264. 76 ibid. 77 Craig Calhoun, ‘A World of Emergencies: Fear, Intervention, and the Limits of Cosmopolitan Order’ (2004) 41 Canadian Review of Sociology/Revue canadienne de sociologie 373. 78 United Nations Secretary General, United Nations Secretary High Level Panel on Threats, Challenges and Change. A More Secure World: Our Shared Responsibility (New York: United Nations) vii–x. 79 See . Also see . 80 European Commission, ‘Commission Staff Working Document, Health Security in the European Union and Internationally’ (SEC(2009)1622 Final) Brussels, 23/11/2009.

EU external health security policy and law 385 Communications Working Group; Global Laboratory Network Working Group; Pandemic Influenza Working Group; Chemical Events Working Group; Radio-Nuclear Threats Working Group; Early Alerting and Reporting; Research Collaboration Support to the WHO in the implementation of the IHR.81 The GHSI has a Ministerial Forum, which is formed by the EU Commissioner for Health and ministers from the G7 countries. The WHO has a seat at the table as a technical advisor.82 The EU’s membership in the GHSI is taken into the EU Health Security Committee (HSC) where at EU level all Member States have high-level ministerial representation in the field of health security, which is designed to be able to take direct action if there is a health security threat to the EU.83 The EU also hosts an international information platform for sharing information and data on CBRN threats, particularly when these relate to terrorist threats.84 The 2009 swine flu and Ebola outbreaks have spurred on further development in this area of EU external health security policy, where it is the United States that takes the lead, rather than the EU.85 After the Ebola crisis in 2014, the US, with the support of the GHSI, launched a Global Health Security Agenda (GHSA). At this point about 50 member states joined this initiative, which assesses countries’ response capacities and action packages to improve preparedness. The implementation and effectuation of the IHR is also reiterated in this context.86 It is difficult in these initiatives to draw the line between development, security and public health policy. One possible interpretation of both the GHSI and the GHSA is the creation of a ‘coalition of the willing’ in the reporting of public health events – with possibly disastrous effects. For instance, in the aftermath of the Ebola outbreak, the special representative of the DG for Ebola Response indicated that the IHR failed because countries reported to the WHO that their health care was reaching 85 per cent of its capacity, while in his estimation 15 per cent was closer to the reality. These gaps in preparedness can make a considerable difference in the global spread and impact of a disease.87 This is a major problem for the effectiveness of the work of the WHO. 81

See the GHSI website and . See ibid and see further European Commission, DG Health (Public Health, Country Knowledge, Crisis Management Crisis Management and Preparedness in Health), High-Level Conference on Global Health Security 22–23 March 2016, Lyon, France – ‘Flash Report’. 83 Decision No. 1082/2013/EU (n 10); de Ruijter (n 22). 84 European Commission Unit C3 (Health Treats) GHSAG on Risk Management and Communication – Meeting on Early Warning for CBRN Threats Luxembourg – 26 to 28 February 2008. Available at: < http://www.episouth.org/doc/r_documents/GHSAG_short_report_ for_PHEA_web.pdf >. 85 Elizabeth M Speakman, Martin McKee and Richard Coker, ‘If Not Now, When? Time for the European Union to Define a Global Health Strategy’ (2017) 5 The Lancet Global Health 392. 86 See . 87 European Commission, DG Health (n 80). Heinz Ellerbrok and others, ‘External Quality Assessment Study for Ebolavirus PCR-Diagnostic Promotes International Preparedness during the 2014–2016 Ebola Outbreak in West Africa’ (2017) 11 PLoS Neglected Tropical Diseases; GianLuca Quaglio and others, ‘Ebola: Lessons Learned and Future Challenges for Europe’ (2016) 16 The Lancet Infectious Diseases 259; Sarathi Kalra and others, ‘The Emergence of 82

386 Research handbook on the EU’s common foreign and security policy At the same time, these health security initiatives may be a means of strengthening the capabilities of certain IHR members that do not have the necessary response capabilities to prevent a global outbreak. Another instrument that these multilateral networks may provide is a bigger platform for expert, multidisciplinary collaboration between agencies, such as the European Centre for Disease Control and the US Centres for Disease Control. At the last GHSI meeting in 2017, hosted by the EU, Europol requested more international collaboration in the area of terrorist attacks, particularly in the technical collaboration that is needed between the security sector and the health sectors’ response measures. The EU further hosted a platform to advance this interface with experts from the GHSI and the security sector.88 The GHSI, the Joint Research Centre of the European Commission (JRC) and the WHO have also created an Epidemic Intelligence of Open Source platform to enhance the capacity to assess the threat of pandemics to global health security. A further operationalization of global EU involvement in health security is the sharing of viruses through the Pandemic Influenza Preparedness (PIP) Framework. In 2016, the GHSI were able to share Zika virus and serum samples for the purposes of risk assessment, as well as developing and expanding diagnostic capacity89 outside of the PIP but through a more general agreement on the rapid sharing of emerging pathogens. With respect to CBRN, although these are also part of the GHSI efforts and are integrated with the alert and response mechanisms for public health90 within the EU, externally the EU is still involved in a rather fragmented manner. In the area of CBRN, the EU has adopted UN Security Council Resolution 1540. This resolution creates obligations for all Member States to enforce measures against the proliferation of CBRN weapons and sets up a Global Initiative to Combat Nuclear Terrorism (GICNT), the G7 Non-Proliferation Directors’ Group and Global Partnership, and the Nuclear Security Summit.91 In the EU, over the last two decades particular attention paid has been paid to the threat of non-state actors’ access to CBRN materials.92 These concerns led to the adoption of a number of legal instruments at EU level. The European Security Strategy of 2003, adopted by the European Council after the 9/11 attacks, places special emphasis on the possibility of non-state actors gaining access to Weapon

Ebola as a Global Health Security Threat: From “Lessons Learned” to Coordinated Multilateral Containment Efforts’ (2014) 6 Journal of Global Infectious Diseases 164. 88 European Commission, DG Health (n 80). European Commission, DG Health (Public Health, Country Knowledge, Crisis Management. Crisis Management and Preparedness in Health), Flash Report from the Plenary Meeting of the Health Security Committee 9 November 2017, Senningen/Luxembourg. 89 European Commission, DG Health (n 82). 90 European Commission, ‘Health Security in the European Union and Internationally’, SEC(2009) 1622 final. European Commission, ‘Bridging Security and Health: Towards the Identification of Good Practices in the Response to CBRN Incidents and the Security of CBR Substances’ COM(2009) 273. 91 See Chapter 9 in this volume. 92 Caitríona Mcleish, ‘Recasting the Threat of Chemical Terrorism in the EU: The Issue of Returnees from the Syrian Conflict’ (2017) 8 European Journal of Risk Regulation 643.

EU external health security policy and law 387 of Mass Destruction (WMD).93 In 2003 the EU also formulated the EU Strategy against the proliferation of WMD, and a European Counter Terrorism Strategy.94 In the EU, in 2010 a CBRN Action Plan was adopted alongside a Chemical Biological Radiological and Nuclear Risk Mitigation Centres of Excellence Initiative, which aims to limit unauthorized access to CBRN materials, and improve Member States’ capacity to prevent and detect CBRN incidents.95 With regard to health issues that have a more direct link to the realm of security, action on CBRN threats became more pronounced in 2009 when the Commission adopted a Communication on CBRN security in the EU, with an ‘Action Plan’ annex that presented a number of national and EU measures to tackle these threats.96 CBRN have also made their way into the new Counter Terrorism Directive, which was finally adopted in January 2017.97 As will be outlined, the interfaces between CBRN and naturally occurring deadly pathogens are increasingly blurred in what concerns the internal or external nature of their policy implications. The EU’s neighbourhood policy is also an important site for external EU health security efforts, where the EU works with partner countries to strengthen the implementation of the IHR. This entails investment in capacity-building for prevention, early detection and response through training programmes in field epidemiology such as the MediPIET project.98 This programme creates a network of competent public health professionals in 18 countries that would be available in the event of cross-border health threats.99 The last section looks at the internal–external nexus in EU health security law and policy.

5. EU HEALTH SECURITY: BLURRING THE CFSP AND TFEU LINES Health is a transboundary security issue that creates a nexus between internal and external and CFSP-TFEU security policy. In EU health security, however, this nexus is not neatly defined, but rather one of blurred lines. The current role of the EU in the field of health security presents itself as patchwork of policy areas, institutional actors, 93

European Council, ‘European Security Strategy: A Secure Europe in a Better World’ (Brussels, 12 December 2003). 94 Where biological and chemical attacks are found to pose a special threat: Council of the European Union, ‘EU Strategy Against the Proliferation of Weapons of Mass Destruction’ (Brussels, 10 December 2003 – 15708/03). 95 See Action plan, Regulation (EU) No 98/2013 on the marketing and use of explosives precursors. 96 Riedel (n 2); Christopher Baker-Beall, The European Union’s Fight against Terrorism: Discourse, Policies, Identity (OUP 2016) 90, arguing that the manner in which the threat of CBRN was presented in these documents as a ‘new threat’. 97 Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on Combating Terrorism and Replacing Council Framework Decision 2002/475/JHA and Amending Council Decision 2005/671/JHA OJ 2017 L 88/6. 98 , but see Speakman, McKee and Coker (n 85). 99 With involvement of ECDC.

388 Research handbook on the EU’s common foreign and security policy mechanisms and surveillance and response systems. Many consider that the EU Global Health Agenda as it was launched in 2010 has not delivered on its promises,100 while at the same time, beyond the strictly public health agenda, the ‘security’ angle seems to have allowed more activity and more prominence for the EU101 in a political landscape otherwise dominated by the US and the UN.102 Security as a frame for policy can easily encompass threats to human health. The widening of EU (external) security to encapsulate certain public health-related issues is taking place in a number of sites: globally, in the context of the WHO and the GHSI-GHSA and CBRN frameworks, and in the EU in the role of the HSC, which was intended only to involve internal health security issues but has increasingly also been the go-to forum for external EU health security coordination and policy.103 Furthermore, the ‘mixity’ of threats to security, including the blurring of internal–external lines, is increasingly addressed within security policy. In a recent joint Communication of the High Representative of the Union for Foreign Affairs and Security Policy and European Commission, it is proposed to ‘adapt and increase’ the ‘EU capacity as a security provider’.104 Further to the European Council Conclusions of June 2016,105 the Communication calls for the creation of an ‘actionable’ framework to address ‘hybrid threats’. The concept of hybrid threats, according to the High Representative, aims to capture the mixture of coercive and subversive activity, conventional and unconventional methods (i.e. diplomatic, military, economic, technological), which can be used in a coordinated manner by state or non-state actors to achieve specific objectives while remaining below the threshold of formally declared warfare. There is usually an emphasis on exploiting the vulnerabilities of the target and on generating ambiguity to hinder decision-making processes. Massive disinformation campaigns, using social media to control the political narrative or to radicalise, recruit and direct proxy actors can be vehicles for hybrid threats.106

In the context of addressing these hybrid threats, the High Representative proposes to utilize the EU internal framework of the HSC, whenever there are health aspects involved in these threats.107 This Committee is based on the 2013 ‘Health Threats Decision’ based on Article 168 TFEU, which was adopted after the 2009 swine flu outbreak to regulate EU involvement in the response to public health threats, chemical 100

Hervey and McHale (n 55) 446. Speakman, McKee and Coker (n 85). And see the response by Lies Steurs and others, ‘Role of the European Union in Global Health’ (2017) 5 The Lancet Global Health 756. 101 Not without criticism: Steurs and others (n 100). 102 Colin McInnes and Kelley Lee, ‘Health, Security and Foreign Policy’ (2006) 32 Review of International Studies 5. ‘Oslo Ministerial Declaration–Global Health: A Pressing Foreign Policy Issue of Our Time’ (2007) 369 The Lancet 1373. 103 European Commission, ‘Flash Report from the Plenary Meeting of the Health Security Committee’ (n 88). 104 High Representative of the Union for Foreign Affairs and Security Policy and the European Commission, Joint Communication to the European Parliament and the Council, ‘Joint Framework on Countering Hybrid Threats a European Union Response’ JOIN(2016) 18 Final. 105 European Council Conclusions, June 2015 (EUCO 22/15). 106 ‘Joint Framework on Countering Hybrid Threats’ (n 104). 107 ibid, para 4.

EU external health security policy and law 389 attacks and bioterrorism.108 This Decision, adopted by the Council and the European Parliament, is an all-encompassing regulatory instrument and covers both known and unknown health risks. It is a European effort to, in the words of the European Commission, ‘bridge the policy fields of health and security’.109 This ‘bridging’ also blurs the line between CFSP and TFEU policy fields and legal instruments, and the internal and external security nexus. The Lisbon amendments to the Treaty under Article 168 TFEU created the possibility for the EU to coordinate cross-border threats. The Health Threats Decision regulates the coordination of Member States’ response to ‘major health threats’ by encompassing the already existing communicable disease control network and a number of health threats that were previously mainly addressed, if at all, in the context of security policy.110 These other health threats include biochemical attacks and bioterrorism, and hazards caused by climate change.111 Moreover, the coordinating structures created by the Health Threats Decision ‘should, in exceptional circumstances, be available to the Member States and to the Commission when the threat is not covered by this Decision and where it is possible that public health measures taken to counter that threat are insufficient to ensure a high level of protection of human health’.112 The Decision thus casts a relatively wide institutional net as it brings a number of new security-related (CBRN threats) aspects into the fold of older systems for information exchange, surveillance and preparedness. For example, the Decision extends the Early Warning and Response System (EWRS),113 which is operated by the ECDC and used to be available only for specific communicable diseases, to all health threats.114 For coordination between Member States the Decision also links in with the Civil Protection Mechanism (Article 11(4) Decision). However, importantly, it also gives the HSC a legal basis, although the nature of the Committee is different from a more classical EU committee for EU regulation or implementing law.115 The HSC was initially installed after the 9/11 attacks and operated in a more or less intergovernmental manner.116 In the Health Threats Decision the HSC: In exceptional emergency situations, a Member State or the Commission may request response coordination within the HSC, as referred to in Article 11, for serious cross-border 108

See Decision No. 1082/2013/EU (n 11); de Ruijter (n 22). Commission, ‘Commission Proposal for a Decision of the European Parliament and of the Council on Serious Cross-Border Threats to Health’ COM(2011) 866 Final. 110 Collier and Lakoff (n 24). 111 Decision No. 1082/2013/EU (n 10). 112 ibid, recital 9. 113 Commission Decision (2000/57/EC) of 22 December 1999 on the Early Warning and Response System for the Prevention and Control of Communicable Diseases under Decision No 2119/98/EC of the European Parliament and of the Council, OJ 1999 L 21/32. 114 Decision No. 1082/2013/EU (n 10), para 16. 115 Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 Laying down the Rules and General Principles Concerning Mechanisms for Control by Member States of the Commission’s Exercise of Implementing Powers, OJ 2011 L 55/13. 116 See for a more elaborate history de Ruijter (n 22). 109

390 Research handbook on the EU’s common foreign and security policy threats to health other than those covered in Article 2(1), if it is considered that public health measures taken previously have proven insufficient to ensure a high level of protection of human health.

Its members are senior officials of the Member States’ health departments that have the ability to reach ad hoc decisions in an emergency, depending on the particular setting in which the HSC is convened. When in 2010 the EU’s Internal Security Strategy established a four-year strategy to help increase Europe’s resilience to crises and disasters, including hostile or accidental releases of disease agents and pathogens, the Commission at the same time asserted that the global nature of communicable disease ‘makes it futile to separate national/EU policy from global policy’ particularly in health security.117 The European Medical Corps, set up in 2016, is also in place to help medical and public health teams and equipment within and outside the EU and can make medical teams, public health coordination teams, mobile biosafety laboratories, medical evacuation planes and other assets available before a health security threat evolves. The recent Ebola outbreak prompted the setting up of this ‘white helmets’ initiative.118 The Commission manages the initiative through the Emergency Response Capacity. The Medical Corps also works together with the WHO Global Health Emergency Workforce and is part of the European Civil Protection Mechanism.119

6. CONCLUSION: QUESTIONS FOR RESEARCH, POLICY AND LAW The nature and existence of an internal EU health law is a matter of debate – one that is seen as problematic by some because of the EU’s limited powers in this field, the highly redistributive nature and the ethical and culturally loaded aspect of health care policy and law generally, and the fact that, in terms of underlying shared values, the Member States’ approaches are still largely asymmetrical. Yet it is also widely acknowledged that health may be affected locally, nationally, regionally and globally. Given the EU’s limited possibilities for harmonizing Member States’ laws on the basis of Article 168 TFEU, the EU’s global role is and has also remained limited. This overview of the EU’s external health security law has identified certain areas of increased policy efforts, as well as some of its failures. The areas where the EU can have an international role to play in health are mostly within the context of trade, development and, to a lesser extent, security. The EU may impact health through these domains, but is not necessarily implementing a health policy for its own sake. In the field of development, health seems to be an obvious 117

Hervey and McHale (n 55) 517. See further Commission, ‘The EU Role in Global Health’, COM (2010) 128 final. 118 Joana M Haussig and others, ‘The European Medical Corps: First Public Health Team Mission and Future Perspectives’ (2017) 22 Eurosurveillance . 119 European Commission Press Release, ‘EU Launches New European Medical Corps to Respond Faster to Emergencies’ (MEMO/16/276).

EU external health security policy and law 391 parameter for promotion, but in trade, health is an add-on factor to growth or competitiveness. With respect to health security, a real blurring of internal and external and CFSP and TFEU policy lines occurs, which is mostly related to the manner in which health security threats present themselves. Where they are man made (biochemical threats), their origin can be non-government actors. Where the threat level of deadly pathogens rises to the level of a security problem in the EU, the institutional and legal actor that has a role in both internal and external matters is the HSC, which has a predominantly coordinating role. In this regard the EU has been increasingly present in responding to major outbreaks, such as in the highly pathogenic avian influenza (HPAI) crisis and the recent Ebola outbreak, where the EU requested longer-term efforts. EU external health security law and policy raises a number of questions for research and policy. In terms of policy the question is to what extent the ‘security frame’ is helping in external relations. Does it make a difference to the problems of lack of compliance with and effectiveness of the WHO IHR model when addressing major public health threats? Or does it have the opposite effect? Does the security frame help the internal EU commitment to a health policy for major disease outbreaks? The question is also to what extent there really is an integration or nexus. In a recent meeting, GHSI defence and security experts were asked to help train some of the public health experts, but the precise impact on response and mitigation efforts has not been recorded in detail.120 There are also obvious downsides to the shift in entrenched perspectives on public health and security towards separate fields of policy. One important consequence this may have is for the international exchange of knowledge, for instance, and the supervision of biological science as part of the integration of public health and security. In the context of public health, science is ideally freely accessible because research is conducted under the protections of academic freedom and exchange of knowledge. However, in the context of security, science may pose a threat if it allows access to knowledge that could be used to create bioweapons.121 As public health and security intertwine, state borders may become more blurred, which is controversial with regard to public health in the EU, where competences are limited. Furthermore, health emergencies can easily become the focus of international efforts to mitigate the crisis in the short term, rather than bring about long-term structural public health reforms, which are deemed too complex and controversial.122 The recent Ebola crisis is a prime example of this dynamic.123 Furthermore, there are possible implications from an individual rights perspective: the people affected by a communicable disease in the ‘security frame’ become an ‘enemy’ rather than a ‘patient’

120

European Commission, DG Health (n 82). Ron AM Fouchier and others, ‘Transmission Studies Resume for Avian Flu’ (2013) 339 Science 520. 122 Collier and Lakoff (n 24). 123 Mohini Banerjee and Chelsea Jack, ‘Responding to Ebola: Retrofitting Governance Systems’ (The Hastings Center 2014). 121

392 Research handbook on the EU’s common foreign and security policy and can bcome framed as a threat to public health, rather than the disease itself being seen as the threat.124 In view of these developments, a recent research agenda has been proposed that looks at the nexus between EU public health and security policy.125 In light of this research agenda legal questions can be asked. The protection of individual fundamental rights and the interlinking of public health and security policies is also highly relevant in this regard.126 Following the 9/11 attacks and their aftermath, there were calls to reassess and rebalance fundamental rights and security.127 In the field of public health, there is a long-standing discussion about balancing public health and individual rights.128 Public health in this respect has a long policy tradition of trading off public goods and private interests, keeping in mind the justice perspectives in this regard. This balance in most EU Member States has resulted in a finely tuned set of rules and public health practices. Changing the public health perspective into a security perspective may change this balance. This is important, because curtailing individual rights to protect the population at large has the potential to affect a particular group or part of the population more severely. Such was the case during the HIV/Aids outbreak in the 1980s, where containment strategies had an enduring impact on the individual rights of patients and groups suspected of carrying the HIV virus.129 Hence, in exploring the emergence of EU external health security law and policy, important issues for law and policy can be identified that lead to a number of new questions for future research.

124

Wendy K Mariner, George J Annas and Wendy E Parmet, ‘Pandemic Preparedness: A Return to the Rule of Law’ (Social Science Research Network 2009). 125 Dijkstra and de Ruijter (n 9). 126 Anniek de Ruijter, EU Health Law & Policy: The Expansion of EU Power in Public Health and Health Care (OUP 2018). 127 Jeremy Waldron, ‘Security and Liberty: The Image of Balance’ (2003) 11 Journal of Political Philosophy 191. 128 David Fidler and Lawrence Gostin, Biosecurity in the Global Age: Biological Weapons, Public Health, and the Rule of Law (Stanford University Press 2007); Gostin, Wiley and Frieden (n 35). 129 Stefan Elbe, ‘Should HIV/AIDS Be Securitized? The Ethical Dilemmas of Linking HIV/AIDS and Security’ (2006) 50 International Studies Quarterly 119; JM Mann and D Tarantola, ‘Responding to HIV/AIDS: A Historical Perspective’ (1998) 2 Health and Human Rights: an International Quarterly Journal 5; Simon Rushton, ‘AIDS and International Security in the United Nations System’ (2010) 25 Health Policy and Planning 495.

PART D REFLECTION ON PERSPECTIVES

19. The European Union as post-national realist power Achilles Skordas*

This is not something I am hoping for. I would prefer the opposite, I mean the sort of increase in the threat Russia poses that would force Europe into choosing to become equally threatening and, specifically, to acquire a single will by means of a new caste that would rule over Europe, a long, terrible will of its own, that could give itself millennialong goals: – so that the long, spun-out comedy of Europe’s petty provincialism and its dynastic as well as democratic fragmentation of the will could finally come to an end. The time for petty politics is over: the next century will bring the struggle for the domination of the earth – the compulsion to great politics. Friedrich Nietzsche, Beyond Good and Evil (first published 1886, CUP 2002), para 208 (italics in the original).

1. NIETZSCHE’S POST-NATIONAL EUROPE The narratives on European unification tell very different stories. The utopian narrative is about a Europe of globalization, free trade, civil society, and democracy. Europe as a ‘liberal utopia’ would be a diverse region endowed with unsurpassed cultural achievements, enriched with experience from its long and painful history, open to multiculturalism – a magnanimous normative and civilian power. Having become a ‘rule generator’, a ‘stabilizer’, a ‘magnet’ for its neighbours and a model for regional integration,1 Europe seemed to fulfil a modern ‘civilizing mission’ purified from the negative connotations of imperialism and colonialism. However, as the shadows of an illiberal populism are haunting both sides of the Atlantic, a dystopian narrative is taking hold. Fear, large-scale terrorism, crude nationalism, weak external borders, chaotic inflow of migrants from Africa, the Middle East and Central Asia, a major inter-state confrontation at the Union’s Eastern flank, aggressive identity politics,2 the cultural clash between European secularism and * I wish to thank the Max Planck Institute for Comparative Public Law and International Law in Heidelberg and Armin von Bogdandy for supporting this research through the Leibniz Fellowship. I would also like to thank Georg Nolte, Andreas Zimmermann and Heike Krieger for inviting me to present an early draft at Humboldt University in Berlin, and Carolyn Moser for our discussions. Special thanks to the editors of this volume for their continuous input and patience. The usual disclaimer applies. 1 Marise Cremona, ‘The Union as a Global Actor: Roles, Models and Identity’ (2004) 41 CML Rev 553. 2 For the US discussion, see Mark Lilla, The Once and Future Liberal – After Identity Politics (Harper and Collins 2017); on the reality of ‘othering’ see Jeff Colgan, ‘Saving Liberalism – Why Tolerance and Equality are not Enough’, Foreign Affairs (13 January 2018) available at: .

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The European Union as post-national realist power 395 conservative Islam, and a common currency at risk have shattered the foundations of the European architecture. Europe appears disoriented and impaired from playing its part in the ‘great politics’ of our time. Instead, the ‘turn to geopolitics’ and the gathering storm of existential security threats have exposed the weaknesses of Europe’s post-national politics. Coming back from the cold, self-preservation seems to be the main game in town. The question is whether Europe, under the pressure of a ‘risky’ international environment, is becoming an inward-looking realist power, or whether liberalism is still a constituent dimension of its identity. If this holds true, the next question is whether liberalism and realism can coexist, and in what form. Reflecting on Friedrich Nietzsche’s political philosophy can be conducive to a better understanding of Europe’s contemporary dilemmas. Nietzsche was a unique thinker with an idiosyncratic and subversive philosophy, who expressed his thoughts in a complex and opaque manner, employing occasionally disrespectful and ‘offensive’ language. His ideas evolved over time, and he often wrote in aphorisms. Despite the polysemantic character of his texts, there is a background thread that enables access to their meaning. Nietzsche was an ardent ‘Europhile’, who was appalled by the aggressive nationalism and anti-Semitism of his time, and developed the vision of a united Europe. The future of Europe, its politics and culture constituted the foundation upon which he developed the distinction between great politics and petty politics (große Politik, kleine Politik).3 Nietzsche’s terminology is not consistent throughout and he sometimes uses the term große Politik to mean ‘power politics’ Bismarck style and sometimes to indicate his own vision of ‘great politics’4 that could be understood as ‘global politics’. The vision of ‘great politics of Earth’ corresponds to Nietzsche’s ‘big thinking’ in terms of historical or even geological time. In this sense, his ‘great politics’ makes sense in the period of globalization, ‘anthropocene’ and of global environmental problems.5 Europe as a global power of a new kind and of unmatched cultural achievements, but also of wrong evolutionary turns, stands, in Nietzsche’s philosophy, at the threshold of a new era. In his work, he critically framed the terms of what we describe nowadays as a supranational-transnational, liberal-democratic and realist power, establishing a geopolitical space that finds itself in an ‘agonistic’ relationship with Russia, so that defence capabilities are necessary. The supranational element is visible in that he considered the ‘withering away’ of the state. Nietzsche saw statehood as weakened and corporate power as increasing. His reflections on the incoming post-national condition, where European institutions ‘supervise’ private companies, societies and contractors (Privatgesellschaften, Privatunternehmen) that would exercise elements of governance, were far-sighted in the identification of the strength of non-state actors and the evolutionary dynamic of economic globalization. Nietzsche believed that the decay of the state would express itself through the collapse of the distinction between private and public, which would 3

See generally Hugo Drochon, Nietzsche’s Great Politics (Princeton University Press

2016). 4

ibid, 156, note 7. See Gary Shapiro, Nietzsche’s Earth: Great Events, Great Politics (Chicago University Press 2016), in particular chapters 1, 2 and 5. 5

396 Research handbook on the EU’s common foreign and security policy empower private companies, but not necessarily individuals.6 He also appealed to Germany to help overcome the political fragmentation of the continent and create a politically and economically united Europe as a global power, whilst stressing in particular the economic dimension.7 The transnational element is found in Nietzsche’s concept of the ‘good European’, focusing on the emergence of a common European identity as a result of developments such as mobility and the process of economic and cultural integration, and leading to the ‘annihilation of nations’ (Vernichtung der Nationen).8 He envisages ‘good Europeans’ as ‘homeless’ (‘wir Heimatlosen’) in the sense of cultural abeyance at a moment of a fundamental historical turn and of non-decidability between modernity and untimeliness.9 For Nietzsche, the raising of a new transnational caste was a necessary ingredient of new Europe, but it is more than doubtful that the Brussels bureaucracy would correspond to his ideal. The liberal-democratic character of the future Europe is also present in his work, even though Nietzsche was critical of democracy. With great foresight, he described the evolution that would follow the ‘victory of democracy’ in Europe, imagining a European ‘association of peoples’ (Völkerbund) and emphasizing the associated risks of populism and nationalism linked to this development. He imagined a united Europe adopting the Swiss model, where every people would have the status and rights of a canton, depending on ‘geographic practicalities’, and emphasized that the borders might change if this corresponded to the interests of greater cantons and of the association as a whole. In such circumstances, he prefigured that the interest of the association might clash with the cultural memories of the people, and believed that diplomats would have to be at work, concluding that internal and external policies would thus be indissoluble.10 This is a very early description of tensions in the united Europe between the people, being progressively deprived of statehood, but still living under its shadow, and the central authorities of the association, but also a prognosis on the rise of populism as a consequence of loss of sovereignty in the era of globalization. The liberal dimension of Nietzsche’s approach is clear in his persistent denunciation of racism, anti-Semitism and nationalism. He characterized nationalism as Europe’s ‘most anti-cultural disease and unreasonableness’ and ‘névrose nationale’ that perpetuates

6 Nietzsche, Menschliches, Allzumenschliches II (1886), section 472. See also Drochon (n 3) 64–70. 7 ‘Die Deutschen haben endlich, als auf der Brücke zwischen zwei décadenceJahrhunderten eine force majeur von Genie und Wille sichtbar wurde, stark genug, aus Europa eine Einheit, eine politische und wirtschaftliche Einheit, zum Zwecke der Erdregierung zu schaffen …’, Ecce Homo, Der Fall Wagner, aphorism 2 (italics in the original). 8 Nietzsche, Menschliches Allzumenschliches, I. Band, aphorism 475. 9 Nietzsche, Die fröhliche Wissenschaft – La gaya scienza, V. Buch, aphorism 377; see also Aldo Venturelli, ‘Die Gaya Scienza der “guten Europäer” – Einige Anmerkungen zum Aphorismus Nr. 377 des V. Buchs der Fröhlichen Wissenschaft, Nietzsche-Studien (2012) 39(1) 180, 190, 192; ‘Hiddensee-Konferenz: Nachschrift, Was ist aus Nietzsches Ideal des “guten Europäers” geworden?’ (2014) 43 Nietzsche-Studien 106. 10 Menschliches Allzumenschliches, Vol. II, aphorism 292.

The European Union as post-national realist power 397 Europe’s parochialism and leads to ‘petty politics’,11 at a time when nationalism belonged to the European mainstream. A core dimension of Nietzsche’s thoughts relates to Europe as a realist power in international relations, including the questions of war, security and defence, and his realism was strongly influenced by Machiavelli.12 The aphorism from Beyond Good and Evil that precedes this section should be read within the context of the European geopolitics of his time and the conflict between Russia and the British Empire over Afghanistan.13 Nietzsche identified Russia as the ‘other’ that would facilitate European unification: the Russian threat that could lead, as a consequence, to the incoming struggle for domination of the world. These statements say more than the eye could catch. Nietzsche did not claim that Russia was an ‘actual threat’ but that an increase of its threatening potential (Zunahme der Bedrohlichkeit) would force Europe into the unification process. This corresponds to a Hobbesian culture of anarchy that does not necessarily presuppose a ‘state of war’, but can also exist in a situation of ‘disposition’ towards conflict.14 In contemporary terms, Nietzsche clearly distinguished between the geopolitical spaces of Europe and Eurasia. Indeed, the Soviet threat during the Cold War was one of the main reasons for launching the process of European unification15 but there is much uncertainty regarding the nature and extent of the threat that the current Russian foreign policy carries for Europe. As for the struggle for world domination, Nietzsche did not say that Europe should strive for it, but that it would be compelled to get involved in the ‘great politics’ of the 20th century. ‘Great politics’ indicates the agonistic relationship with Russia and, possibly, Europe’s potential contribution to the management of global challenges. Under the current circumstances, the ‘great politics of earth’ could include climate politics, the preservation of international peace and security, even by the use of force,

11

‘… diese kulturwidrigste Krankheit und Unvernunft, die es gibt, den Nationalismus, diese névrose nationale, an der Europa krank ist, diese Verewigung der Kleinstaaterei Europas, der kleinen Politik’: Ecce Homo, Der Fall Wagner, 2 (italics in the original). 12 Don Dombrowsky, Nietzsche’s Machiavellian Politics (Palgrave Macmillan 2004); Paul Glenn, ‘Review of Nietzsche’s Machiavellian Politics by Don Dombrowsky’ (2011) 41 Journal of Nietzsche Studies 129–131; Nikola Regent, ‘A “Wonderous Echo”: Burckhardt, Renaissance and Nietzsche’s Political Thought’ in Herman Siemens and Vasti Roodt (eds), Nietzsche, Power and Politics: Rethinking Nietzsche’s Legacy for Political Thought (Walter de Gruyter 2008) 638–642. 13 Drochon (n 3) 19. 14 Thomas Hobbes, Leviathan (first published 1651, CUP 2011) MN 62. 15 During his meeting with German Chancellor Konrad Adenauer and French Prime Minister René Pleven in Paris in 1951, Jean Monnet explained the rationale of European unification as follows: ‘I know the responsibilities you bear … But we shall be submerged if we stay on the defensive. Our position ought not to be a reaction to American demands or an attitude of fear vis-à-vis Moscow, but a constructive policy, one which might have been adopted in any case, without reference to the Americans or the Russians: that is, the construction of Europe’, Jean Monnet, Memoirs (first published 1976–78, Third Millennium Publishing) 356. For the linkage between the Marshall Plan and the European unification process, see Benn Steil, The Marshall Plan – Dawn of the Cold War (Simon & Schuster 2018).

398 Research handbook on the EU’s common foreign and security policy and the peaceful resolution of international disputes.16 Nietzsche was very critical of the power politics of his time (‘petty politics’). Nietzsche’s stance towards war is obscure but Drochon convincingly argues that usually the term is used metaphorically.17 Even though Nietzsche proclaims that ‘war is indispensable’,18 he sharply criticizes it with the economic argument of the high defence expenditures incurred by the European states, only a few aphorisms later. His radical rejection of Europe’s militarization is not based so much on the presumed high direct cost of standing armies, but on the ‘opportunity cost’ of withdrawing able men in productive ages from other more useful economic and social activities.19 The philosophical argument for the rejection of war can be traced back to his early work on ‘Homer’s Contest’.20 In that text, Nietzsche distinguished between Eris as destructive war and regression to a pre-Homeric savagery and Eris as envy and contest advancing the common good. Nietzsche explained the decay of the Greek city-states Athens and Sparta, with the unrestricted warfare causing their decline and empowering Macedonia. He considered the agon (contest, Wettkampf) as the best means to advance culture and greatness in society and avoid hubris. Nietzsche’s concept of managing conflict through agon belongs to the genealogy of the balance of power, deterrence and democracy. The societal ethics of agon may help prevent the rise of imperial powers, or the domination of one person or one party in a state or state-like entity.21 Nietzsche would favour a European ‘smart’ defence combining effectiveness with efficiency and would support Europe with ‘one will’ and one voice in international fora. Despite the idiosyncrasies and labyrinthine character of his thought, Nietzsche succeeded in framing a genealogy of concepts as useful tools for the analysis of our time: a supranational liberal-democratic association of states and peoples, a geopolitical heavyweight implementing a realist foreign policy, and designing a smart security and defence policy tailored to the kind of tasks it has to perform. This is not a systematically structured political theory, and his aphorisms and texts should be read in view of the ‘aesthetic pessimism’ and scepticism that characterizes his work.

2. METHODOLOGY AND STRUCTURE The current study argues that the EU is a realist power whose actions are guided by liberal principles. The fundamental question is here whether a post-national power can 16 Jean Monnet delivered a stability-related argument for European ‘great politics’ when he responded to the neutralists of his time: ‘It is precisely because the countries of Western Europe play no part in the great decisions of the world … that we face the instability from which you are trying to shield us. And, far from backing out, it’s vital that we once more play an active part in settling these problems, because they concern the West as a whole’: ibid, 290. 17 Drochon (n 3) 175–176. 18 Nietzsche, Menschliches Allzumenschliches Band I, aphorism 477. 19 ibid, aphorism 481. 20 Oscar Levy (ed.), The Complete Works of Friedrich Nietzsche, Volume II – Early Greek Philosophy, Homer’s Contest (first published 1872, Foulis 1911) 51–62. 21 ibid, 61–62; on the related function of ostracism, see 57–58.

The European Union as post-national realist power 399 be realist. As will be shown, realism is not incompatible with liberalism but the realist pillar is primordial. It may be that the post-national character of the Union, including in particular the enhanced role of business and civil society, has obscured the presence of realism in the past and, instead, increased the visibility of the liberal and neoliberal pillars of the EU. The Union as a post-national entity articulates its response to threats and risks through realist policies of a different kind because its political system and decision-making are more complex than those of states as disconnected and selfsufficient subjects of international law.22 Moreover, it will be argued that realist policies have more currency in our time because the threats arising from the neighbourhood have a structural and long-term character so that the EU is concentrated in the efforts to manage threats and risks proactively or reactively. The legal dimension is central to the current analysis but considerations of geopolitical order play an important role in understanding the Union’s response to the challenges. The discussion of the theme is based on two analytical stages: the first will set out a theoretical framework that would explain ‘liberal realism’ as the ‘deep structure’ of the EU as post-national power in the language of law and geopolitics (Section 3); the second will explore the principles and action of the EU in selected areas of foreign and security policy (Sections 4–6). In Section 3, the study proceeds in three steps. First, it reviews the discussion on the EU as a civilian or normative power, and argues that realism has always been present, implicitly or explicitly, and that the exclusively normative/civilian power approaches cannot explain the Union’s nature (3.1). Second, it analyses the meaning of ‘liberal realism’ in a range of EU and national legal and policy documents (3.2). The terms ‘liberal’ and ‘realism’ are not linked to any epistemological-methodological tradition in political science or international relations theory (classical realism, structural realism or liberalism), but have a normative meaning. Third, it is argued that the necessity for a long-term realist policy derives from the nature of the geopolitical risks in the Union’s neighbourhood (3.3). This chapter challenges the idea that the current situation might be transient and the Union could return to the pre-2014 situation if diplomatic solutions are sought in ‘good will’. The argument here is that the risks are structural and cannot be politically resolved and eliminated, but only managed in the long term. Section 4 focuses on the scope, teleology and paths of the EU liberal realist policies (globalism/regionalism, universalism/particularism, multilateralism/ minilateralism/unilaterism). In Section 5, the jurisprudence of the Court of Justice of the EU (CJEU) on the management of the recent migration flows is critically analysed. Section 6 explores the evolution of the common security and defence policy (CSDP), in particular the establishment of the Permanent Structured Cooperation (PESCO). Section 7 will offer some concluding thoughts on the position of Europe in the world. At this point, it is necessary to make some further clarifications. First, it is often not apposite to focus only on the power of the EU as an independent international actor, as separate from the Member States (MS), in particular when geopolitical factors are 22 Jiri Priban, ‘The Self-Referential European Polity, its Legal Context and Systemic Differentiation: Theoretical Reflections on the Emergence of the EU’s Political and Legal Autopoiesis’ (2009) 15 European Law Journal 442.

400 Research handbook on the EU’s common foreign and security policy considered.23 The role and involvement of the Union in the Ukrainian and Libyan conflicts, and in the migration crisis, cannot be separated from initiatives that the MS have independently taken. This is because the action of individual MS may lead to EU follow-up response (EU involvement in sanctions, or in the restoration of peace more broadly). However, when specific EU structures, such as PESCO, are explored, the analysis is obviously limited to the specific subject. An additional level of complexity arises because of the exercise of the Union’s foreign policy on the basis of both the TEU and the TFEU.24 Second, the EU and its MS is the core power bloc within the geopolitical space of ‘Europe’, which is defined mainly on the basis of shared security and is distinct from the Eurasian space and Middle East and North Africa (MENA).25

3. LIBERAL REALISM AS THE UNION’S DEEP STRUCTURE For the purposes of this study, the ‘deep structure’ is understood to include those elements that are indispensable for the identity formation of a system and the development of its further communications.26 Liberal realism is one of these ‘basal’ elements that belong to the core of the Union as a post-national power, form its identity and enable its policies. 3.1 The (Un)acknowledged Presence of Realism The long-lasting debates on the character of the European Community/Union show that the proponents of the civilian or normative nature of the Union have either indirectly acknowledged the role of realism and hard military power, or have presented a very narrow view of the topic concentrating only on some aspects of the EU law and policy. In an extraordinary piece published in 1972, François Duchêne developed the concept of the European Community as ‘the first of the world’s civilian centers of power’27 that may help resolve problems on a planetary scale and signify ‘the end of history’.28 Among other things, he foresaw the significance of the politics of climate change,29 and questioned the primacy of political decision and state power in a world with strong non-state actors.30 However, his analysis includes also a less noticed aspect of the EU as a realist and defensive power. Even though Duchêne acknowledged that 23

See also Chapter 21 in this volume. See the example of migration policy and Chapter 14 in this volume. 25 On these spaces, see infra, Section 3.3.2. 26 On the distinction between ‘deep’ and ‘surface’ structure in linguistics, see Noam Chomsky, Cartesian Linguistics – A Chapter in the History of Rationalist Thought (3rd edn, CUP 2008) 79. 27 François Duchêne, ‘Europe’s Role in World Peace’ in Richard Mayne (ed.), Europe Tomorrow: Sixteen Europeans Look Ahead (Fontana 1972) 43. 28 ibid, 47. 29 ‘The partial control of weather and even climate can become more than a talking point in 1990, and if they do could determine the future of vast regions’, ibid, 44. 30 ibid, 45. 24

The European Union as post-national realist power 401 ‘the one thing Europe cannot be is a major military power’,31 he accepted that it could have a deterrent capacity for self-protection, in theory even a nuclear deterrent.32 He recognized US ambivalence with regard to European defence33 and considered that Europe should be able to shape the international milieu.34 This is an early theoretical foundation of what ‘realism’ means for a post-national power. Ten years later, in 1982, Hedley Bull, the leading figure of the English School of International Relations, criticized Duchêne from the standpoint of state-centred realism, for allegedly implying that Europeans had abandoned the policies of military strength in favour of ‘soft power’. Bull was mistrustful of both the US and the Soviet policies, and proposed the strengthening of an independent Western European defence, including the possibility of an intergovernmental security and defence structure linked to the then European Community that would operate within or without NATO. He also favoured a European deterrent nuclear force, where Germany would play a role in its control. His ‘Gaullist’ approach was visionary, if we reconsider his arguments at the current juncture of world politics, but was sharply criticized in the 1980s as lacking a clear understanding of the Cold War.35 In 2002 Ian Manners argued that the distinction between ‘civilian’ and ‘military’ nature was secondary to the idea of the Community being a ‘normative power of an ideational nature characterized by common principles and a willingness to disregard Westphalian conventions’, and having the ‘ability to shape conceptions of the “normal” in international relations’.36 This is a concept of ‘the political’ at the antipodes of Carl Schmitt. Manners was right to distinguish between civilian and normative power. Whilst a civilian power is the opposite of a military power in that it essentially denies recourse to ‘hard power’, a normative power exercises leadership over ideas and opinion.37 His analysis is attractive as he explained the alleged normative character of Europe through the development of human rights law and policies. The award of the Nobel Peace Prize to the European Union in 2012, and the Nobel Lecture by Herman van Rompuy and José Manuel Barroso, the then Presidents of the European Council and the European Commission respectively,38 has given credence to the theory of the double nature of the European Union as a civilian and normative power. However, there are shortcomings with this approach, and Manners’ point that the EU has a ‘predisposition’ to act normatively has been rightly questioned.39 There are at least three lines of critique qualifying the theory of ‘normative power Europe’. First, as 31

ibid, 37. ibid, 37, 41. 33 ibid, 39–41. 34 ibid, 43. 35 Hedley Bull, ‘Civilian Power Europe: A Contradiction in Terms?’ (1982) 21 Journal of Common Market Studies 149. See also the comments by Dominique Moïsi and Christian Hacke, ibid, 165. 36 Ian Manners, ‘Normative Power Europe: A Contradiction in Terms?’ (2002) 40 Journal of Common Market Studies 235, 239. 37 ibid. 38 . 39 Helene Sjursen, ‘The EU as a ‘Normative’ Power: How Can This Be?’ (2006) 13 Journal of European Public Policy 235. 32

402 Research handbook on the EU’s common foreign and security policy Armin von Bogdandy argued almost two decades ago, it is questionable whether human rights should be included in the core area of the EU integration process as this would upset the Union’s constitutional structure.40 In view of later developments, including the introduction of specific instruments to address systemic-rule-of law deficiencies in the Union,41 and the initiative of the Commission to protect the rule of law in Poland,42 it might be tempting to argue that human rights entered at some point into the core of the Union’s objectives. However, the points raised by the proposed Council Decision are about ‘the independence of the judiciary, the separation of powers and legal certainty’,43 therefore about the rule of law and Poland’s ‘institutional health’. Furthermore, the rejection of the agreement on the accession of the EU to the European Convention on Human Rights (ECHR) by the Court of Justice44 speaks against a radical normative turn and weakens the theory of ‘normative predisposition’. Even though the EU has in principle avoided claiming ‘exceptionalism’ comparable to that of the US,45 Opinion 2/13 clearly constitutes an expression of self-assessment on the Union’s ‘exceptional nature’46 that gives its Court the authority to decide on these issues as the last instance. Second, as Georg Nolte observed, when MS negotiate on common positions or strategies, they often make concessions on their own positions; compromises, therefore, are facilitated via general, abstract and norm-oriented formulations.47 This kind of normativity may not be a genuine expression of faith to human rights or attachment to the international rule of law, but expression of a realist policy that tries to overcome or conceal dissent. When evaluating the normative weight of common positions it is therefore necessary to explore the context, content and scope of the respective statements and exclude instances of ‘pseudo-normativity’. Third, the analysis of ‘normativity’ as a dimension of the foreign policy is a complex exercise and involves the exploration of alternatives. In that respect, Nathalie Tocci argued that there is a continuum from ‘normative’, ‘imperial’, and ‘status quo’ policies to realpolitik, depending on the relationship between the three factors of means, goals 40 Armin von Bogdandy, ‘The European Union as a Human Rights Organization? Human Rights and the Core of the European Union’ (2000) 37 CML Rev 1307. 41 Armin von Bogdandy and Michael Ioannidis, ‘Systemic Deficiency in the Rule of Law: What It Is, What Has Been Done, What Can Be Done’ (2014) 51 CML Rev 59. 42 See Commission, ‘Reasoned proposal in accordance with Art. 7(1) of the Treaty on European Union regarding the rule of law in Poland – Proposal for a Council Decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law’ COM (2017) 835 final. 43 ibid, Art. 2(c). 44 Opinion 2/13, ECLI:EU:C:2014:2454. 45 Georg Nolte and Helmut Philip Aust, ‘European Exceptionalism?’ (2013) 2(3) Global Constitutionalism 407. 46 Turkuler Isiksel, ‘European Exceptionalism and the EU’s Accession to the ECHR’ (2016) 27 European Journal of International Law. Another form of exceptionalism is found in the Union’s ‘vanguard’ policies in international relations, see infra Section 4.3.4.1. 47 Georg Nolte, ‘Gedanken zur deutschen Außenpolitik im Rahmen einer gemeinsamen Europäischen Außenpolitik’ in C Calliess (ed.), Herausforderungen an Staat und Verfassung, Liber Amicorum für Torsten Stein zum 70. Geburtstag (Nomos 2015) 780.

The European Union as post-national realist power 403 and impact.48 She also stressed that a foreign policy actor does not necessarily act within one of the above categories, but might pursue different policies depending on time and region.49 The place of normativity in foreign policy analysis should thus be reframed from ‘whether’ to ‘how far’ a foreign policy actor is indeed normative.50 Tocci understands realpolitik as the opposite of normative policy,51 and this distinguishes this term from the concept of ‘realist’ power used in the present study, which is not incompatible with liberalism. The obsolescence of an exclusively ‘civilian power Europe’ was clearly stated by the High Representative of the Union for Foreign Affairs and Security Policy Federica Mogherini in her foreword to the European Union Global Strategy (EUGS): The European Union has always prided itself on its soft power – and it will keep doing so, because we are the best in this field. However, the idea that Europe is an exclusively ‘civilian power’ does not do justice to an evolving reality. For instance, the European Union currently deploys seventeen military and civilian operations, with thousands of men and women serving under the European flag for peace and security – our own security, and our partners’. For Europe, soft and hard power go hand in hand.52

The term ‘normative power’ is not specific enough to explain the nature of the European Union as a foreign policy actor. If normativity is taken to mean the grounding of the policy in law, including international law, the above term repeats the obvious: the Union, just like any other subject of international law, has an existence in the realm of ‘norms’ and acts on the basis of some form of legal capacity, and its actions generate legal consequences. In this sense, all subjects of international law are normative actors. If ‘normative power’ means that the Union and the MS resist violations of international law and act with a view to confirming the integrity of norms, the term is undercomplex, because over many centuries, the evolution of international law has been shaped by power directly or indirectly53 so that the boundaries between compliance, enforcement, violation and normative change are often difficult to draw. Ultimately, the identity of the EU as a liberal realist power has been shaped by the Treaties and by its response to the challenges of the international environment. 3.2 Liberal Realism in the TEU and Strategy Papers Exploring the action of the UN Security Council before the Kosovo intervention, Fidler distinguished between liberal internationalism, liberal realism and liberal globalism. He 48 Nathalie Tocci, ‘Profiling Normative Foreign Policy: The European Union and its Global Partners’ in N Tocci (ed.), Who is a Normative Foreign Policy Actor? The European Union and its Global Partners (Center for European Policy Studies 2008) 12–16. 49 ibid, 16–17. 50 Daniel Hamilton, The United States: A Normative Power? ibid, 139. 51 Tocci (n 48) 12–13. 52 ‘Shared Vision, Common Action: A Stronger Europe – A Global Strategy for the European Union’s Foreign and Security Policy’ (European External Action Service 2016) 4. 53 On international law and power, see Wilhelm Grewe, The Epochs of International Law (Michael Byers tr., de Gruyter 2000); Michael Byers and Georg Nolte (eds), United States Hegemony and the Foundations of International Law (CUP 2003).

404 Research handbook on the EU’s common foreign and security policy defined liberal internationalism as the strand of liberalism that considers international organizations and the UN Security Council as fundamental pillars for the preservation of international peace.54 Liberal realism identifies the balance of power as the main institution for the maintenance of peace and relegates the Security Council and peace-keeping into a secondary role, whilst liberal globalism raises trade and interdependence into the core pillars for stability.55 In the present context the term ‘liberal realism’ has a different meaning. In the natural, but also normative, language it signifies that the foreign and security policy is oriented towards liberal-democratic and universal values, but that it is also embedded in an overall policy framework advancing the Union’s interests. Whether the Union is a realist power or not depends on the relationship between values and interests, as stipulated in the TEU: ‘In its relations with the wider world, the Union shall uphold and promote its values and interests and will contribute to the protection of its citizens’ (Art. 3(5) TEU). The TEU states that ‘the Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world’. These principles are democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, equality and solidarity, respect for human dignity, respect for the principles of the United Nations Charter and international law (Art. 21(1) first sub-para). Liberal realism lies at the heart of the TEU, which distinguishes between ‘principles’ that the Union shall respect and ‘objectives’ it shall pursue (Art. 21(3) TEU). The two categories are not clearly distinguishable and will be treated here together. Among the ‘internationalist’ objectives of the Union are the consolidation and support of democracy, the rule of law, human rights and the principles of international law (Art. 21(2)(b)), the preservation of peace, the prevention of conflicts and the strengthening of international security in accordance with the ‘purposes and principles’ of the United Nations Charter, the principles of the Helsinki Final Act and the aims of the Charter of Paris (Art. 21(2)(c)), the fostering of development of developing countries and eradication of poverty (d), the encouragement of integration of all countries to world economy and the progressive abolition of restriction on international trade (e), the protection of the environment and the sustainable management of global natural resources (f), assistance to populations, countries and regions facing natural or man-made disasters (g), and the promotion of multilateral cooperation and global good governance (h). In the matrix of ‘values and interests’, the question is how the values fit into the Union’s interests. Indeed, it cannot be expected of an association of states, even if it has taken the form of a supranational association, that it puts its interests in second place. More important is to explore how this association defines its interests. The TEU is here 54 This conceptualization of liberal internationalism should not be confused with the so-called ‘Blair doctrine’ on liberal internationalism, as formulated by the former UK Prime Minister after the war in Kosovo at . 55 David Fidler, ‘Caught between Traditions: The Security Council in Philosophical Conundrum’ (1996) 17 Michigan Journal of International Law 411, 429–451.

The European Union as post-national realist power 405 clear on the character of the values and principles: the action of the Union in the field of international relations should ‘safeguard its values, fundamental interests, security, independence and integrity’ (Art. 21(2) lit. a TEU). This set of principles and objectives focuses on what Oeter characterizes as ‘traditional core objectives of any “realist” foreign policy’.56 The Union should preserve ‘its’ values and interests, as well as the interests that are linked to the existence and preservation of any sovereign association or collectivity. ‘Security’ includes not only the abstract security of the Union and the MS, but also the security and protection of the Union citizens (Art. 3.5 TEU). According to the EUGS, ‘the European Union will … guarantee the security of its citizens and territory’.57 Therefore, the EU pursues its ‘internationalist’ objectives because they are ‘its own’ values, so that it does not have to comply with an externally given or imposed normative system. The EUGS describes the relationship between values and interests as follows: Our interests and values go hand in hand. We have an interest in promoting our values in the world. At the same time, our fundamental values are embedded in our interests. Peace and security, prosperity, democracy and a rules-based global order are the vital interests underpinning our external action.58

Thus, the EUGS does not understand values and interests as opposite. The Union is a liberal realist power aiming to ‘universalize’ its values because its own interests are better served in a liberal world order. There is also a sense of ‘civilizing mission’ when the TEU states that the Union ‘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’ (Art. 3(5) TEU). The Union and the MS may also exercise their strong positions in international institutions to adapt international law in the changing international social, political and economic order. The UN Security Council is an institution where the Union and its MS, including in particular the two permanent members UK and France – after Brexit only the latter – may exercise their influence and pursue their agenda. The Council has the primary responsibility for the maintenance and restoration of international peace and security,59 it exercises a ‘quasi-judicial’ authority in that regard60 and its decisions prevail over other rules of international law (Arts 25 and 103 UN Charter). Liberal states were able to ‘take control’ of the normative agenda of the Security Council and of other

56

Stefan Oeter, ‘Art. 21’ in Hermann-Josef Blanke and Stelio Mangiameli (eds), The Treaty on European Union (TEU) – A Commentary (Springer 2013) MN 25. 57 ‘Shared Vision, Common Action’ (n 52) 14. 58 ibid, 13. 59 See Arts 24, 25, Chapters VII and VIII, and Art. 103 UN Charter. 60 Oscar Schachter, ‘The Quasi-Judicial Role of the Security Council and the General Assembly’ (1964) 58 American Journal of International Law 960.

406 Research handbook on the EU’s common foreign and security policy international institutions after the end of the Cold War and raise the significance of human rights, democracy, rule of law, and good governance.61 The realist character of the Union is visible here in its understated ambiguity with regard to international law. The EUGS states repeatedly that the EU will act ‘in full compliance’ or ‘in compliance’ with international law, human rights, rule of law, European law and the UN Charter.62 It seems though that these phrases carry more of a political than legal weight, as the Strategy is careful enough not to use the signature phrase ‘shall act in (full) compliance’. The TEU is also deliberately ambiguous on that point and avoids stating that the EU ‘shall’ comply with international law. Instead, it states that the Union ‘shall contribute to … the strict observance and the development of international law, including respect for the principles of the UN Charter’ (Art. 3(5)) and that it will act ‘in accordance with the purposes and principles of the UN Charter’ (Art. 21(2)(c)).63 ‘Strict observance’ is mollified by the acknowledgement of change (‘development of international law’), taking into account that customary international law evolves through change of the practice that may violate the existing rules. Respect for the principles and purposes of the UN Charter indicates that the respective states evaluate, interpret and implement the Charter via their individual policies, the practices of the TEU, or their influence in the political organs of United Nations. This is a more complex exercise than merely to ‘comply with’ a given set of rules or interpretations. The EUGS characterizes the philosophy of the EU foreign policy as ‘principled pragmatism’: We will be guided by clear principles. These stem as much from a realistic assessment of the strategic environment as from an idealistic aspiration to advance a better world. In charting the way between the Scylla of isolationism and the Charybdis of rash interventionism, the EU will engage the world manifesting responsibility towards others and sensitivity to contingency. Principled pragmatism will guide our external action in the years ahead.64

The above term is framed through three distinctions, realistic assessment v. idealistic aspiration, interventionism v. isolationism, and responsibility v. contingency. They are all aspects of the values/interests bifurcations from various angles. The term ‘principled pragmatism’ wants to indicate a realist policy inspired by liberal values, but depending on context. There is a rather unexpected similarity between this term, and the term ‘principled realism’ employed by the US National Security Strategy 2017.65 The Report of the UK House of Lords, on Europe in the World, goes into a similar direction rejecting both ‘pure’ realism and unbounded liberalism. The Report emphasized that ‘no [expert] witness suggested that the EU should ignore its values entirely and pursue a purely transactional foreign policy’ and that ‘many argued for a more finely-tuned balance based on a sober analysis of the challenges, restricted resources 61

Achilles Skordas, ‘Book Review – International Law and the Construction of the Liberal Peace by Russell Buchan’ (2015) 64 International & Comparative Law Quarterly 491. 62 ‘Shared Vision, Common Action’ (n 52) 19, 30, 32, 35, 47. 63 See, however, Art. 24(3), first sentence TEU on the Union’s external action that ‘the Member States … shall comply with the Union’s action in this area’ (my italics). 64 ‘Shared Vision, Common Action’ (n 52) 16. 65 National Security Strategy of the United States (December 2017) 1.

The European Union as post-national realist power 407 and the EU’s limited ability to shape outcomes’.66 One of the experts emphasized that, in the context of membership negotiations, ‘following year after year of progress reports and bureaucratic engagement with the Commission, the injection of realpolitik to deal with the Government of a powerful state is often very welcome’.67 The three recommendations of the Report on ‘values and interests’ show a clear trend towards pragmatism and liberal realism as it recognized the impossibility of ‘moral integrity’ in foreign policy and the necessity of selectivity: 136. We recognise that there is no easy and entirely happy balance to be struck in promoting values in foreign policy. Even well-meaning intentions and actions can have adverse consequences. Moreover, in order to defend its interests, the EU will have to continue to engage with the political structures that are in place. 137. A more pragmatic approach could focus on supporting good governance in the political, economic and judicial sectors in the wider neighbourhood. This would go some way to marry the EU’s strategic interests with a reform agenda that benefits the citizens of those countries. 138. The values of the Union are also an important dimension of the Union’s power to persuade and dissuade, and of its authority as a trusted and reliable international actor. We recognise that some decisions are a function of strategic necessity, and that the promotion of values outside the EU is likely to be selective, but as far as possible the Union, in particular Member States, should seek to exemplify its values.

Both the general orientation of the EUGS and its priorities are an expression of European realpolitik with a long pedigree and tradition that rejects liberal utopianism but aspires to advance liberal values, ideals and principles.68 The tension between liberal and realist aspects of the Union’s policies, and an effort to harmonize them, is also visible in the recent ‘Reflection Paper on Harnessing Globalization’.69 The paper acknowledges the negative side-effects of globalization, due among other things to mass migration, and global risks such as terrorist threats, climate change or pandemics.70 It also admits that some regions or countries are confronted with unemployment and exclusion, whilst many people are concerned that globalization might threaten their identities and ways of life.71 The paper promises policies according to the ‘values and interests’ of the EU72 but there is little doubt that the policies to be implemented would err on the side of the Union’s interests.73 66

European Union Committee, Europe in the World: Towards a More Effective EU Foreign and Security Strategy (2015–16, HL 97) para 128. 67 ibid, para 185. 68 ‘As John Bew usefully reminds us, Realpolitik as coined by the German liberal Ludwig von Rochau in 1853 meant a rejection of liberal utopianism, but not of liberal ideals themselves’: see Sven Biscop, ‘The EU Global Strategy: Realpolitik with European Characteristics’ in XII Forte de Copacabana Conference International Security, Might and Right in World Politics (2016) 92, referring to Ludwig von Rochau, Grundsätze der Realpolitik (1853). 69 COM (2017) 240 final. 70 ibid, 6. 71 ibid, 10. 72 ibid, 25: ‘Rather than sitting back and letting globalization shape our destinies, we have the opportunity to shape globalization in line with our own values and interests’. 73 ibid, 17 (Section 3.3).

408 Research handbook on the EU’s common foreign and security policy The confusion about the relationship between values and interests is often due to a misconception of the meaning of liberal values. Indeed, there is a tension within the liberal/universal values themselves, namely between the safeguarding of individual rights and the preservation of the rule of law. As will be discussed later, this tension arises in particular in the area of migration law, as the result of the coexistence of these two faces of liberalism.74 Whilst human rights law and refugee law may demand the substantive protection of individuals fleeing their countries, the rule of law imposes limits on the right to seek asylum and introduces a variety of procedural requirements for entering into a country and being granted protection. The tension between the expansive interpretation and politicization of human rights law and the proceduralization of some aspects of the rule of law creates recurring systemic tensions between these two pillars of liberalism. Administrative and judicial practice articulate and decide the disputes but there is no definite resolution of this tension. Far from being a conflict between liberalism and illiberalism, the ambiguities in the prioritization between rights and the procedural aspects of rule of law belong to the internal ‘operational programme’ of liberalism itself.75 3.3 The Concrete Challenges: Geopolitics of Risk The acknowledgement that liberal realism constitutes the Union’s deep structure is too abstract to explain the necessity of such a policy in the long term, and the quality of the risks facing the EU and its MS. The correct diagnosis of concrete risks and threats is conducive to correctly assessing the challenges. The following analysis of the geopolitical environment has the objective of exploring the structure of the spaces characterized as Europe, Eurasia and the MENA regions, the risks the EU is exposed to and the necessity for long-term policies for their effective management. The Union is not surrounded necessarily by enemy powers, but by various sets and sources of unpredictability and risk. The risks are less acute than immediate threats, more dispersed, less visible and pervasive. They are inherently linked to distortions of the social structures of the neighbouring regions, and any management strategy requires a set of liberal and realist policies, both internally, as well as internationally. 3.3.1 Geopolitical considerations in EU foreign policy The Union is a realist and perhaps defensive power, not in the sense of ‘militarization’, but in the sense of an increased awareness of external and internal threats and risks. This does not mean that the Union abandons the other areas of traditional European policies (for instance, environment and development), but it devotes more human resources, efforts and decision-making capacities to risk management. The European anxieties have been expressed in relatively recent statements and reports of the organs of the Union. In May 2015 the Foreign Affairs Council emphasized the accumulation of threats in the global and regional environment and the combination of internal and external threats as follows: 74

Infra Section 5. On these tensions, but from a different angle, see Daniel Thym, ‘Universalismus und Flüchtlingsdebatte’ (2016) 70 (802) Merkur 65. 75

The European Union as post-national realist power 409 The global and European security environment has changed dramatically in recent years. This calls for a stronger Europe, with a stronger and more effective Common Security and Defence Policy (CSDP). The conflicts, threats and instability in the EU’s immediate and wider neighbourhood, affecting inter alia Iraq, Libya, the Sahel, Syria and Ukraine … together with long standing and newly emerging security challenges, are significantly impacting European security as well as international peace and security, and challenging our fundamental values and principles. … The Council strongly underlines the need to further strengthen the links between external and internal security. The aim is to increase synergies in the EU response to priority horizontal issues such as terrorism, organised crime, foreign fighters, smuggling and trafficking in human beings, irregular migration, hybrid threats, border management, energy security and cyber security … .

In the 2016 State of the Union Address, President of the Commission Jean-Claude Juncker painted a bleak picture of the situation, stressing that ‘our European Union is, at least in part, in an existential crisis’, and that ‘our reflections … must start with a sense of realism’. One chapter in the Union Address was devoted to defence against internal and external threats. The President emphasized that ‘we are … democratic societies, plural societies, open and tolerant’, but that ‘tolerance cannot come at the price of security’. He also sharply criticized the political paralysis in the MS, as, in his words, ‘never before [had he] seen national governments so weakened by the forces of populism and paralysed by the risk of defeat in the next elections’. Nonetheless, in his 2017 State of the Union Address the tone changed and he offered a more optimistic view of the situation compared to 2016, stating that ‘the wind [was] back in [Europe’s] sails’.76 Even if this was true for the economy and for the fight against the Islamic State in Iraq and Syria, the underlying geopolitical and social factors in the neighbouring spaces have barely changed. Council President Donald Tusk characterized the migration crisis of 2015 as ‘the tipping point’ and criticized political correctness as one of the reasons that delayed policy decisions. He added that ‘the lack of rapid action’ had undermined the trust of citizens ‘in their governments, the institutions and in the wider establishment, already undermined since the financial crisis’.77 Similar worries were expressed by the EUGS. In the foreword, the High Representative stated that ‘the purpose, even existence, of our Union is being questioned’ and that ‘the Strategy nurtures the ambition of strategic autonomy for the European Union’. The Strategy made a negative assessment of the situation as a result of the threats facing the Union and the MS: To the east, the European security order has been violated, while terrorism and violence plague North Africa and the Middle East, as well as Europe itself. Economic growth is yet to outpace demography in parts of Africa, security tensions in Asia are mounting, while climate change causes further disruption. 76

State of the Union Address 2017, 13 September 2017. Letter from President Donald Tusk before the Bratislava summit, Press Release, Council Doc. 511/16, 13 September 2016. 77

410 Research handbook on the EU’s common foreign and security policy Yet today terrorism, hybrid threats, climate change, economic volatility and energy insecurity endanger our people and territory. The politics of fear challenges European values and the European way of life. To preserve and develop what we achieved so far, a step change is essential. To guarantee our security, promote our prosperity and safeguard our democracies, we will strengthen ourselves on security and defence in full compliance with human rights and the rule of law.

This is the vocabulary used by a realist power. The enumeration of geopolitical threats and the acknowledgement that the ‘politics of fear’ in some MS puts the European project at risk demonstrates that the Union has shifted its focus from expanding to the East and promoting the model of regional–supranational integration towards selfpreservation, consolidation, strengthening of its external borders, and internal stability. 3.3.2 Geopolitical spaces – Europe, Eurasia, MENA Europe as a geopolitical space is defined not only by a common history, geography, culture and law, but principally through a sense of common risks and security. In this sense, ‘Europe’ encompasses the countries of the European continent lying between the Atlantic and Russia that are either members of the EU/EEA or NATO, or both, and Switzerland. The Western Balkans also belong to the ‘inner courtyard of Europe’,78 but not Turkey, which occupies a sui generis position at the fault lines between the three geopolitical spaces and defines its security priorities in its own terms. The EU and its MS constitute the main power bloc of the European space, sharing a common security system with the US through NATO. Eurasia is the second geopolitical space, with Russia as the core state that conducts an imperial and ‘controlling’ policy through the Commonwealth of Independent States (CIS) and the Eurasian Economic Union (EEU). Dominant in Eurasia, Russia has succeeded in creating an imperial space and has sought to control the Western flank of its ‘near abroad’, putting an end to the eastward expansion of the EU and NATO. Relations between Russia and the EU cannot be reduced to a mere strategic competition for influence over the lands-in-between because a deeper cultural split appears to be taking shape as well. The Russian government is nurturing the old cultural tradition of a socially conservative Eurasian identity as a blend of Orthodox Christianity and Slavic and Mongol cultures.79 At the current juncture, ‘Eurasianism’ legitimizes authoritarianism as governance, in opposition to what is considered to be the European cultural heritage of Enlightenment and liberalism.80 This project is linked to a very broad national security concept, according to which ‘traditional Russian spiritual and moral values are being revived’ and NATO is considered as an enemy 78

‘The Western Balkans and the Revenge of History’ (Research Paper No. 142, NATO Research College 2017) 5. 79 Felix Philipp Ingold, ‘Eurasische Spekulationen – Zur Theorie und Vorgeschichte der russischen Geopolitik’ (2016) 70 (811) Merkur 5; Friedrich Wilhelm Graf, ‘Die “Sozialdoktrin” der Russisch-Orthodoxen Kirche’ (2014) 68 (786) Merkur 1000; John Windhausen, ‘Review of Nikolai Trubetzkoy, The Legacy of Genghis Khan and Other Essays on Russia’s Identity’ (1997) 49 Studies in East European Thought 70. 80 European Union Committee, The EU and Russia: Before and Beyond the Crisis in Ukraine (2014–15, HL 115) paras 35–49.

The European Union as post-national realist power 411 power constituting a threat to national security.81 In the areas of strategic studies and history, crude constructions with a fascist and racist character82 and pseudomethodologies83 gain traction within the elite. It has been argued that, as a result of its nationalist ideology, Russia is nowadays more dangerous than the Soviet Union in the 1970s.84 Risks arising from Russian policies have a structural character and are not the result of a temporary clash of interests with Europe or the West. The deeper reason for Russia’s unsettling behaviour may be its problem-ridden path to modernity and capitalism. The collapse of the Soviet Union is attributed to the lack of meaningful functional differentiation in Soviet society because the totalitarian character of the Communist system obstructed the autonomous function of the various spheres of activity, including the economy, law and mass media.85 The evolution in the last quarter of a century confirms that the Russian political system inherited many of the structural deficits of the ancien régime and is prone to crises, authoritarianism and aggressive behaviour. The ‘commanding’ and authoritarian nature of the Russian political system is one of the factors that contribute to the intensification of the Great Power competition.86 The EU should be therefore prepared to manage these risks for the long haul. The challenges arising from the MENA space and beyond, towards Sub-Saharan Africa and Central Asia, are characterized by extraordinary complexity and by four parallel levels of risk or conflict. First, some states and territories, such as Libya, Somalia, Yemen, Syria, Gaza and parts of Lebanon, Iraq, Afghanistan and Pakistan have been transformed into negatively integrated spaces of exclusion, and exercise a strong disintegration pull to neighbouring states and territories. Second, there is a very strong geo-religious antagonism between the two regional powers Iran and Saudi Arabia, fuelling the transnational Sunni–Shia conflict. Third, there is a generalized confrontation between secularists and fundamentalist Islam throughout the MENA region, which is particularly visible in Egypt. Fourth, the successive crises of statehood and the collapse of territorial authority in Libya have opened up opportunities for massive migrant smuggling from the underperforming societies of Sub-Saharan Africa towards Europe. The MENA space is the source of multiple and interrelated threats and challenges to the EU, including terrorism and irregular mass migration as transnational business activity (smuggling and trafficking of people). There is a clear ‘internal/external nexus’ in the above challenges, which have to be managed through measures to be taken both 81

See, for instance, Russian National Security Strategy, December 2015, paras 11, 15. Alexander Dugin, Eurasian Mission (Arktos 2014), in particular chapter 16 on ‘white nationalism’ 166–171; Dugin, Last War of the World Island – The Geopolitics of Contemporary Russia (Arktos 2015). 83 On Anatolij Fomenko and his so-called ‘new chronology’ project, see Felix Philipp Ingold, ‘Das Geschichtsbild der Neuen Chronologie’ (2017) 71 (819) Merkur 69. 84 Vittorio Hösle, ‘Macht und Expansion – Warum das heutige Russland gefährlicher ist als die Sowjetunion der 70er Jahre’ (2015) 6 Blätter für deutsche und internationale Politik 101. 85 See the excellent monograph of Nicolas Hayoz, L’étreinte soviétique (Droz 1997). 86 This point was made by the recent National Security Strategy of the United States (n 65) 26–28. See also ‘The Next War – The growing threat of great-power conflict – A Special Report’ The Economist (27 January 2018). 82

412 Research handbook on the EU’s common foreign and security policy within the EU and with regard to third states:87 border management, counter-terrorism, including counter-radicalization policies,88 military response, and humanitarian and development assistance to third states. The collapse of authority in MENA has been triggered by an accumulation of factors. Even though it is not possible to explore here the exact sequence of processes that led to the current situation, it is arguable that the proximate actor-oriented reason is the Islamist insurgency across the region, and the deeper structural reason is the failure of the Arab world to modernize. It is a truism that Islamic fundamentalism is a religiously motivated insurgency of global reach, with a dystopian aspiration and vision. Scholars as different as Henry Kissinger and Ernst Nolte agree on this point.89 ISIL, Al-Qaeda, Boko Haram, Al-Shabab and other groups belong to the same branch of religious fundamentalism and are able to disseminate their message to the radicalized parts of Muslim communities in Europe and elsewhere. The Union’s defensive posture vis-à-vis the developments in this space is designed and implemented against a set of much deeper and long-standing structural problems. Timur Kuran rejects the perception that colonialism is responsible for the Middle East’s difficulties to ‘catch up’ with modernity and considers that these problems have to be attributed to the dysfunctionalities of the traditional Islamic institutions in world society.90 We may see here a structural dimension which is also due to the lack of a proper functional differentiation among religion, law and political system. The developmental challenges in SubSaharan Africa, combined with these deficits of the Islamic world, create major risks for Europe in the long term that can explain the Union’s ‘turn to realism’ in migration management. 3.3.3 Conclusion The risks emanating from the two neighbouring geopolitical regions arise from dysfunctional forms of governance that spill over to ‘borderlands’ at the intersection of the geopolitical spaces. Moldova, Ukraine and Georgia are contested borderlands between Europe and Eurasia that are not covered by NATO and have lost territories as the result of armed conflicts with Russia or its local supporters. The Baltics are within the NATO umbrella but still they might be targets of unconventional destabilization policies. As the result of the financial crisis and occasional political instability, Greece is apparently not capable of maintaining control of the Union’s external borders, which was ‘outsourced’ to Turkey through the EU-Turkey Statement. Turkey is in a category of its own as a relatively stable, but increasingly authoritarian state occupying a strategic position at the intersection of the three geopolitical spaces. It engages in membership negotiations with the EU, it is instrumental for the management of 87 ‘From Shared Vision to Common Action: Implementing the EU Global Strategy Year 1’ (European External Action Service 2017) 26–30. 88 For the latter, see for instance, HM Government, Revised Prevent Duty Guidance for England and Wales, 2015. 89 Henry Kissinger, World Order (Penguin 2014) 118–145; Ernst Nolte, Die dritte radikale Widerstandsbewegung: Der Islamismus (Landt Verlag 2009). 90 Timur Kuran, The Long Divergence – How Islamic Law Held Back the Middle East (Princeton University Press 2011) 37.

The European Union as post-national realist power 413 irregular migration via the Eastern Mediterranean route, it is involved in the Syrian conflict, and it maintains ambivalent relations with Russia and the Eurasian space.91 Libya has become an open space practically ‘inviting’ the development of the migrant smuggling business. Mackinder, a ‘founding father’ of geopolitics, had concluded in 1904 that ‘the southern boundary of Europe was and is the Sahara rather than the Mediterranean’.92 This is an exemplary observation explaining the efforts of the EU to manage mass migration in North Africa and Libya rather than in Europe or exclusively on the high seas.

4. SCOPE, TELEOLOGY AND PATHS OF EU ACTION The Union’s response to these long-term and pervasive risks is determined by its scope, teleology and paths. The scope is defined by the distinction ‘regionalism/globalism’, the teleology through ‘universalism/particularism’ and the paths through the triad ‘multilateralism, unilateralism, minilateralism’. 4.1 Geographic Scope: Regionalism and Globalism The scope of EU CFSP/CSDP is determined by the quality and origin of risk. In a paradoxical sense, the European policy is both regional and global. It is regional in the sense that it focuses on the origin and sources of risks in the Eurasian or the MENA spaces. It is global in that crisis management cannot be merely regional, but needs to involve measures on the global level, including sanctions, where appropriate. Therefore, the source of a threat or risk might be located within a geopolitical space but the scope of the response lacks geographical boundaries. The concept of regionalism is also significant for ideas, norms and values that usually have a regional origin, but this is independent of their character as universal or particularist. 4.2 Teleology: Universalism and Particularism The globalism/regionalism bifurcation is different from the distinction universalism/ particularism. Whilst the former refers to geographical scope, the latter is about the aspiration of values and interests.93 Very briefly, universalism indicates the possibility

91

On Turkey’s strategic position and domestic developments, see Foreign Affairs Committee, The UK’s relationship with Turkey (2016–17, HC 615). 92 HJ Mackinder, ‘The Geographical Pivot of History’ (1904) 23(4) The Geographical Journal 421, 428–429. 93 On the distinction between globalism and universalism, see Karoline Postel-Vinay, ‘European Power and the Mapping of Global Order’ in Kalypso Nicolaïdis, Berny Sèbe and Gabrielle Maas (eds), Echoes of Empire (Tauris 2015) 323–336. On the concept of universality, see generally André Nollkaemper, ‘Universality’, Max Planck Encyclopedia of Public International Law, Vol. X (OUP 2012) 580–586.

414 Research handbook on the EU’s common foreign and security policy of a worldwide legal order and of cosmopolitan values, whereas particularism focuses rather on state sovereignty and national or regional values.94 ‘Universal values’ are recognized by the TEU as belonging to the foundations of the Union, but also as originating from Europe. The Preamble of the Treaty emphasizes that the MS ‘[draw] inspiration from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law’ (TEU Preamble (2)). However, the TEU recognizes also particularist values connected with statehood and national and constitutional identities of the MS: The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.95

Whether the MS may also invoke a right of protection of their ‘cultural identities’ according to Art. 4(2) TEU or whether the Union protects the diversity of cultures and traditions of European peoples is controversial.96 Whilst the protection of ‘particularist’ national identities is not necessarily at odds with the universalism of European values, their aggressive ‘ethno-cultural’ version is inconsistent with the values enunciated in the Treaties and with the judicial practice of the Court of Justice, as the dispute on refugee quotas demonstrates.97 Prima facie it cannot be excluded that the Union as a realist power would be prepared to deviate from its obligations under international law. Despite the asserted ‘ownership’ of universal values by the Union, the interpretation and application of legal principles and rules is influenced by geopolitical circumstances. Even if there is no collision between values and interests in principle, as the EUGS proclaims, there is an inherent tension between them. Arguably, the Union might not need to ‘violate’ international law or EU law because its interests could be well served by a choice between reasonable interpretative alternatives. Thus, more important that the open violation of norms is their ‘creeping particularization’ as a process of reinterpretation of universal values in a way that corresponds to EU interests. This is the case when the EU acts by taking measures that do not unambiguously violate international law but are at the borderline between legality and illegality. Acting in that way, the EU is capable of channelling its values and interests into international law. Creeping particularization happens when the Union defends its vital interests, in particular its security, the security of its citizens and its territorial 94

See comprehensively Armin von Bogdandy and Sergio Dellavalle, ‘Universalism and Particularism as Paradigms of International Law’ (Working Paper 3, Institute for International Law and Justice, New York University School of Law 2008). 95 Art. 4(2) TEU. 96 See Hermann-Josef Blanke, ‘Art. 4’ in The Treaty on European Union (TEU) – A Commentary (n 56) MN 32–34. 97 See infra Section 5.2.

The European Union as post-national realist power 415 integrity. Measures for migration management may fall under this category. Influential states or regional entities may more easily transform their own interests into interests and values of the international community, as defined by international institutions, in particular the United Nations. The ‘creeping particularization’ of norms of universal application is also visible in the practice of the Union and the MS on the right of self-defence, in unison with other states engaged in the ‘war on terror’.98 The bifurcation ‘universalism/particularism’ is not a mere ‘essentialist’ distinction, but indicates an alternative of forms that contribute to normative evolution. For a particularist interpretation of international law to take hold and replace the mainstream conceptualization of international legal norms it is necessary that the states concerned do not aim at satisfying ethno-nationalist sentiments, but that the alternative they propose is appealing to the interests of a significant number of other states and of international institutions. In this sense, what initially appears as a ‘creeping particularization’ may lead to ‘universalization’ of the particular, to better-defined rules and to reformed institutions. 4.3 Paths of Action: Multilateralism, Unilateralism, Minilateralism 4.3.1 The many shades of the trichotomy The trichotomy may be less clear than it prima facie appears. Multilateralism usually indicates the collective and cooperative action of states, whilst unilateralism denotes action of an individual state to achieve its own policy objectives.99 In a systemic perspective though, unilateralism is not a static behaviour, where a state or a group of states simply ignore others and egoistically pursue their own agenda. In world society, states compete for power and recognition among their peers and in world public opinion. Unilateralism may here indicate a hegemonic posture, where a state takes initiatives and uses soft methods of conviction or hard methods of compulsion to implement them. Multilateralism may then denote either the result of a process that was initiated unilaterally or the classical format of establishing formal consensus within a group with a view to acting in common for the achievement of a goal. An initially unilateral approach may be dressed up in the clothes of multilateralism, or even genuinely convince and be adopted by others. The conduct of a group of states acting in concert to achieve their objectives may be internally multilateral but externally unilateral. Multilateralism exists in cooperation among three or more countries and is usually distinct from a relation between two parties (bilateralism). However, this is not ‘written in stone’ and it is possible that a cooperative bilateral relationship, such as between France and Germany in the EU, may have the dynamic of developing ‘minilateral’ cooperation formats. Minilateralism, or ‘multilateralism with small numbers’, lies between the unilateral/bilateral and the

98

Infra Section 4.3.4.1. On the definition and ambiguity of the distinction, see André Nollkaemper, ‘Unilateralism/Multilateralism’, Max Planck Encyclopedia of Public International Law, Vol. X (OUP 2012) 179. 99

416 Research handbook on the EU’s common foreign and security policy multilateral.100 The term ‘plurilateral agreements’ is also used for situations where only a limited number of states participating in a broader institutional framework conclude specific agreements,101 whilst the term ‘coalitions of the willing’ is more apposite for security and defence missions. If the EU foreign and security strategy is composed of objectives, ways and means, the above distinctions belong to the ‘ways’, or, rather, ‘paths’ of action, meaning ‘the formats and political processes through which the EU can act’.102 Moreover, the same action may be multilateral through its connection with a ‘regional arrangement or agency’103 but also unilateral in the sense of not being covered by an explicit Security Council authorization, as with the NATO intervention in Kosovo. 4.3.2 Multilateralism as ‘normality’ Multilateralism is linked to the Union’s cooperative behaviour in international relations and usually also implies respect for international law. Multilateralism is the basic and ‘routine’ path of action for the Union’s security and defence policy. According to the TEU, the Union ‘shall promote multilateral solutions to common problems, in particular in the framework of the United Nations’ (Art. 21(1) sub-para (2), second sentence TEU). Moreover, the CSDP ‘shall provide the Union with an operational capacity’ that the EU ‘may use’ for ‘peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter’ (Art. 42(1) TEU). Art. 43 TEU determines the relevant actions of the Union, including ‘joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation’.104 These tasks can be integrated into the fight against terrorism and can consist in assisting third states to combat terrorism in their territories. Here are therefore two categories of tasks, the so-called ‘Petersberg Tasks’ of peace-keeping and peace-making in situations of international or non-international armed conflict, but also the use of force against terrorism, upon request of the third states concerned, or following UN Security Council resolutions. The use of combat forces in crisis management indicates UN Chapter VII situations and provides clear evidence of the evolution of the Union into a power with the capacity and willingness to use force for the maintenance and restoration of peace.105 According to Blockmans and Wessel, ‘the notion of crisis management thus serves as a catch-all phrase for both military and civilian ESDP operations, whether they are deployed to prevent conflict 100 Miles Kahler, ‘Multilateralism with Small and Large Numbers’ (1992) 46 International Organization 681. 101 So, for instance, the WTO Plurilateral Agreements. 102 European Union Committee, Europe in the World (n 66) paras 20–21. 103 See Chapter VIII of the UN Charter (Arts 52–54). 104 For a review and analysis of CSDP military and civilian operations, see Panos Koutrakos, The EU Common Security and Defence Policy (OUP 2013) 101–182; for civilian operations, see recently Carolyn Moser, EU Civilian Crisis Management – Law and Practice of Accountability (Carolyn Moser 2018). 105 On the CSDP military operations, see Koutrakos, ibid 107–132.

The European Union as post-national realist power 417 from bursting into crisis, assist in enforcing the peace, keep the peace or build the peace’.106 The EUGS stresses that the Union supports ‘a rules-based global order with multilateralism as its key principle and the United Nations at its core’.107 The Strategy stresses that ‘a multilateral order [is] grounded in international law’108 and that the Union ‘will support cooperative regional orders worldwide’ with a view to stabilizing global governance.109 With regard to the Middle East, the Union will promote ‘functional multilateral cooperation’ in areas such as border security, trafficking, counter-terrorism and others.110 According to the Strategy, the EU is supportive of an ‘effective global governance’, including ‘maritime multilateralism’.111 Considering that multilateralism also characterizes the decision-making process within the Union and that in the area of defence and security decisions are in general taken unanimously,112 it is difficult for all MS to agree on CSDP actions that would create significant risk of violation of international law, such as the use of drones in situations of active armed conflict.113 Multilateralism in the above sense therefore has three dimensions: first, it is about international cooperation; second, it is about advancing global governance in a rules-based order; and third, multilateralism is a practical necessity for the Union in a very ‘realist’ and ‘defensive’ sense. The EU is not a superpower and the ‘unilateralist’ path in the conduct of its foreign and security policy would be generally counterproductive. It is reasonable for ‘medium-to-small sized countries’114 to generally support both a multilateral and a rules-based approach. The adoption by the Union of a formally multilateral approach does not settle all underlying issues of law and policy. Even if the actions of the Union are formally multilateral, ‘cached unilateralism’ may require a differentiated assessment of the character of the action.115 4.3.3 Minilateralism in balanced multipolarity Minilateralism is an expression of the principle of flexibility in the EU116 and is linked to the constellation of power in Europe. This format is, as already indicated, ‘multilateralism in small numbers’, but the approximate size of the ‘mini’ obviously 106

Steven Blockmans and Ramses Wessel, ‘The European Union and Crisis Management: Will the Lisbon Treaty Make the EU More Effective?’ (2009) 14 Journal of Conflict and Security Law 265, 270. 107 ‘Shared Vision, Common Action’ (n 52) 8, 10. 108 ibid, 15. 109 ibid, 10. 110 ibid, 34. 111 ibid, 43. 112 Art. 31 TEU. 113 Interview with Nathalie Tocci on the Global Strategy for the European Union’s Foreign and Security Policy (2016) 51(3) The International Spectator 1, 4. 114 ‘Shared Vision, Common Action’ (n 52) 15. 115 Infra Section 4.3.4.1. 116 Graf Kielmansegg, ‘Art. 46’ in The Treaty on European Union (TEU) – A Commentary (n 56) MN 27.

418 Research handbook on the EU’s common foreign and security policy depends on the overall number of the reference group. It has been contended that the number of 20 states might be the optimum within the global constituency of states117 but obviously the ‘magic number’ for the EU would be much smaller. The states participating in the minilateral format may represent broader constituencies or may be the most powerful and influential states in the group, or those with expertise and interest, or with the strongest ‘footprint’ in a specific area of activities. For instance, the states with the strongest interest in agriculture may negotiate with free-traders, or those with fishing interests may be involved in fisheries negotiations. Minilateralism may also indicate the concerted action of those MS that are global players in terms of geopolitical weight. Furthermore, the leading powers of the EU have an important role in taking initiatives and nudging other MS. The development of the security and defence policy and the response to the migration challenge through the reform of the Union require action by the more influential MS, which should have the capacity to carry the other MS in their direction. As the result of inequality among the MS, the significance of minilateralism in the Union’s foreign and security policy is largely based on the particular role of Germany and France. Germany as the ‘Power in the Middle’118 and as a Gestaltungsmacht119 (‘Power with the capacity to shape’) plays a leading role in the Union’s foreign and security policy. As the then Federal President Joachim Gauck said in 2014, the country ‘has transformed itself from a beneficiary to a guarantor of international order and security’.120 Following the Brexit referendum, Germany and France constitute the Union’s geopolitical ‘inner core’ and take initiatives, generate ideas and push forward the EU agenda.121 Franco–German cooperation has always been the foundation of the EU system122 but recent developments have strengthened the role of the two countries in the area of security and defence. Assuming the existence of a system of ‘balanced multipolarity’ in the relationship between the European and the Eurasian spaces composed of three European powers, the UK, France and Germany, and two off-shore balancers, the US and Russia,123 it is clear that France and Germany are the Union’s agents in the system. The ambiguities of the current US policies strengthen the case for European minilateralism. 117

Moises Naim, ‘Minilateralism – The magic number to get real international action’ Foreign Policy (21 June 2009) available at: . 118 See Herfried Münkler, Macht in der Mitte – Die neuen Aufgaben Deutschlands in Europa (Körber Stiftung 2015). 119 Auswärtiges Amt (Hrsg.), ‘Review 2014 – Außenpolitik Weiter Denken – KriseOrdnung-Europa’ 7, 9, 12, 20, 37–38. 120 Joachim Gauck, Speech to open 50th Munich Security Conference, available at: . 121 See, for instance, the recent speech of the President of France, Emmanuel Macron, on the ‘Initiative for Europe’ at the Sorbonne on 26 September 2017, available at: . 122 Adrian Hyde-Price, European Security in the Twenty-first Century – the Challenge of Multipolarity (Routledge 2007) 128–130. 123 ibid, 69–71.

The European Union as post-national realist power 419 Minilateralism in global diplomacy as a form of EU action articulates itself around the Franco-German core and occasionally involves the High Representative of the EU for Foreign Affairs and Security Policy. The E3/EU+3 and Iran negotiations format included the E3 (UK, France, Germany), the EU High Representative, and the US, Russia and China, on the one hand, and Iran on the other and reached agreement on the Joint Comprehensive Plan of Action.124 The Anglo-German Initiative for reform in Bosnia-Herzegovina in 2014 was also adopted by the EU and is considered a success.125 The Normandy format for negotiations on the Ukrainian crisis brought together Germany, France, Ukraine and Russia and the outcome was positive in that it helped contain and ‘freeze’ the conflict through the Minsk agreements, which were reached largely due to the increasing global role of Germany and to the diplomatic heritage of the Ostpolitik.126 The absence of the High Representative from the negotiations was criticized as undermining the role of the Union and of the other MS.127 The role of minilateralism as an alternative to multilateral collective action was institutionalized in the area of security and defence policy, where the TEU provides for three possibilities with a view to achieving closer cooperation among the MS: first, a coalition of the willing implementing an EU decision (Art. 44 TEU); second, enhanced cooperation (Art. 20 TEU); and third, the PESCO (Arts 42(6) and 46 TEU, Protocol No. 10).128 Four criteria should be taken into account for assessing the functionality of minilateralism in defence and security: first, the existence of a requirement on a minimum number of participating states; second, the permanency of the structure; third, the degree of control exercised by the Council; and fourth, the scope of the powers conferred on the participating states, including, in particular, their authority to decide to use ‘hard force’. The requirement of a minimum number of participants may constitute an impediment if it is higher than the actual number of states willing to participate. The ad hoc structures do not permit the development of long-term policies, the tight control by the Council may be too restrictive for the development of independent initiatives of the participating states, and the scope of their authority is an evident factor in how meaningful the cooperation is. 4.3.4 Unilateralism Two kinds of unilateralism in the Union’s foreign and security policy will be discussed: first, cached unilateralism as vanguard, and second, unilateralism as systemic malfunction.

124

UN Doc S/RES/2231(2015). See generally Daniel Joyner, Iran’s Nuclear Program and International Law – From Confrontation to Accord (OUP 2016). See also Chapter 9 in this volume. 125 European Union Committee, Europe in the World (n 66) paras 182–185. 126 Marko Siddi, ‘German Foreign Policy towards Russia in the Aftermath of the Ukraine Crisis: A New Ostpolitik?’ (2016) 68(4) Europe-Asia Studies 665; see also Frank-Walter Steinmeier, ‘Germany’s New Global Role’ (2016) 95(4) Foreign Affairs 106, 111–112. 127 See European Union Committee, Europe in the World (n 66) para 181. 128 See infra Section 6.

420 Research handbook on the EU’s common foreign and security policy 4.3.4.1 Cached unilateralism as vanguard Cached unilateralism as vanguard means that the Union shows the ambition of ‘leading’ and of taking initiatives in matters of international concern, but intends to carry others in its direction and does not wish to appear to be acting unilaterally or in support of its own narrow interests. Vanguard as unilateralism is associated with a sense of exceptionalism but can only be successful if it ‘convinces’ others. As Nollkaemper observed, a ‘particular multilateral approach may simply be unilateralism in disguise’.129 Obviously, the Union’s cached unilateralism is much softer than US unilateralism, however it is important to consider the foundation and practice of the Union’s conduct in that regard. The EU projects its normative vision in the world in its effort to construct its own identity as a benevolent power, but its realist interest is visible. Art. 3(5) TEU expresses a bold, almost ‘Nietzschean’ civilizational ambition, where the Union advances the ideas of ‘peace, security, sustainable development of the Earth’ and ‘development of international law’. The EUGS explains: ‘Τhe EU is committed to a global order based on international law, including the principles of the UN Charter. This commitment translates into an aspiration to transform rather than simply preserve the existing system.’130 There are two important points in this vision. First, by rejecting the conservative stance of preserving the status quo, the EUGS announces the European political project of transforming and reforming the system of international relations. The question is to what extent the Union can be a revisionist power. Second, the Strategy distinguishes between global order and international law. For the EUGS ‘global order’ is not identical with, but is ‘based on’, international law. This corresponds to the ‘peace’ and ‘international law’ distinction of the UN Charter, where the former constitutes the Gestalt of international law in space and time. The two dimensions of negative and positive peace contain the elements of the form of social and political organization of world society. European powers can, therefore, along with other Western allies, define what is ‘peace’ and what is the ‘threat to the peace’. In order to maintain or restore international peace and security and reform regional and global order it is often necessary to deviate from the formal rules of international law. This is envisaged by Arts 25 and 103 UN Charter for binding resolutions of the Security Council, but the EU and MS may occasionally also act unilaterally, albeit in the ‘spirit’ of the ‘global order’ as defined by the UN Security Council and the General Assembly. The maintenance and restoration of peace and security is an area where the EU or the MS have occasionally taken initiatives leading to military interventions that have not always been successful. First, in the 2011 Libyan crisis, France led the initiative in the United Nations for the intervention and introduced draft resolution 1973, even though the draft was submitted in common by France, Lebanon, the UK and the US. The Report of the UK House of Commons on the war in Libya concluded that ‘France led the international community in advancing the case for military intervention in Libya’ and that ‘UK policy followed 129 130

Nollkaemper (n 99) 180. ‘Shared Vision, Common Action’ (n 52) 39.

The European Union as post-national realist power 421 decisions taken in France’.131 The openly proclaimed purpose of the intervention was to avoid a humanitarian catastrophe but the Western Powers soon changed their strategy and imposed regime change. The alleged universalist project of protection of the population from war crimes and crimes against humanity proved to be a European revisionist project in support of revolutionary change in the Middle East, which contributed to the generalized collapse of statehood across the region. This project actually failed with catastrophic consequences. Second, EUNAVFOR Med Operation Sophia was also a European initiative. On 11 May 2015 the EU initiated a discussion in the UN Security Council (UNSC) on the migration flows across the Mediterranean.132 A week later, on 18 May, the EU Council adopted Decision 2015/778133 on the naval operation, which was launched by Council Decision 2015/972 on 22 June 2015.134 At this stage, no Security Council resolution was necessary as the mission’s Phase 1 was limited to the monitoring of smuggling networks, information gathering and patrolling on the high seas. The Political and Security Committee decided to activate Phase 2 by Decision 2015/1772 on 28 September 2015, but the Decision took effect on 7 October.135 In this instance, an authorization by the Security Council would cover potential legality gaps because minimal force would be employed on the high seas against smugglers. Indeed, the UNSC adopted Res. 2240/2015 two days later, on 9 October 2015. The two-day difference is obviously a secondary issue in the first place, but it is more important to note that the EU designed and implemented the concept and the Security Council followed. In terms of international cooperation, this was a ‘unilateral’ mission of the Union, clearly distinguished from the EUNAVFOR Operation Atalanta off the coast of Somalia, where naval forces from third countries and other organizations, including NATO, had participated.136 The EUNAVFOR Med Operation Sophia also appeared to have the universalist purpose of disrupting the smuggling and trafficking business and saving lives. In fact, the operation was conceived also to protect vital European interests and prevent migrants from arriving in Europe. This was a realist-particularist project from the very beginning but found the acceptance of the Security Council. Whether this could be a model for the management of mass migration by other states is difficult to know because the operation was tailored to the geography of the region. Nonetheless, it was argued that basic elements of the restrictive European response to the migration crisis

131

Foreign Affairs Committee, Libya: Examination of intervention and collapse and the UK’s future policy options (2016–17, HC 119) paras 18–23, in particular para 23. See also UN Doc S/PV.6498, 2–3. 132 S/PV.7439. 133 OJ 2015 L 122/31. 134 OJ 2015 L 157/51. 135 OJ 2015 L 258/5. 136 On piracy, see Panos Koutrakos and Achilles Skordas, The Law and Practice of Piracy at Sea – European and International Perspectives (Hart 2015).

422 Research handbook on the EU’s common foreign and security policy were adopted by the New York Declaration for Refugees and Migrants.137 In this sense, the European realism may enjoy wider international support than expected. Third, the invocation of the mutual assistance clause of Art. 42(7) TEU by France in the aftermath of the Paris attacks in November 2015 was followed by a request to the UNSC. The sequence of events was as follows: the attacks took place on 13 November, France started bombing Syria on 16 November,138 the EU Council discussed the request for mutual assistance by France on 16–17 November, and the initiative was welcomed and supported by the other MS without any conditions.139 France submitted a draft Security Council resolution on 19 November140 and the Security Council adopted Res. 2249/2015 on 20 November 2015. The resolution did not explicitly authorize the use of force and made no reference to Chapter VII or to the right of self-defence. The Council used the code phrase ‘all necessary measures’ and encouraged (‘called upon’) states to use force, but without issuing a clear authorization.141 This is a good example of a unilateral action by a MS, endorsed by the other Union members, and ultimately leading to a Security Council resolution with ambiguous content on the use of force. In the above setting, the EU and its MS appear as vanguard powers, taking initiatives in support of international interests, but also in defence of their own interests. Three points are worth raising here. First, the universalist aspiration for the preservation of peace is not inconsistent with EU MS pursuing their own foreign policy agendas (Libya). Second, universalism per se does not guarantee success. Third, a vanguard power does not pursue only universalist aims, but may follow particularist-realist policies that may find implicit or explicit international support, if they coincide with the interests of other states or regions (migration).

137

Gabriel Almeida and Katharina Bamberg, ‘The UN Summit for Refugees and Migrants: a mirror of the current EU migration policy?’ available at: . 138 See Ben Doherty, ‘France launches “massive” airstrike on ISIS stronghold of Raqqa’, The Guardian (London, 16 November 2015) available at: . 139 According to the Outcome of the Meeting of Council of Ministers of 16–17 November 2015, ‘Defence ministers discussed the reaction to the Paris attacks of 13 November 2015. French President François Hollande had invoked article 42(7) of the Treaty on European Union, requesting bilateral aid and assistance from the other EU member states. Ministers expressed their unanimous and full support for France and their readiness to provide all the necessary aid and assistance. In the coming days France will have bilateral discussions with other member states. – As pointed out by High Representative, offers of material assistance or of support in theatres of operation where France is engaged may be made. No formal decision or conclusion by the Council will be required to implement article 42(7). The High Representative underlined that this is not a CSDP operation, but an activation of bilateral aid and assistance’ (14120/15, available at: ). The Council did not formulate any reservations on the legality of the recourse to force, and simply noted that no formal decision or conclusion of the Council is necessary for the implementation of the above provision. 140 UN Doc S/2015/890. 141 UN Doc S/RES/2249(2015), oper. para 5.

The European Union as post-national realist power 423 4.3.4.2 Unilateralism as systemic malfunction The failure of unilateralism as vanguard on the international plane is not identical with unilateralism as malfunction in the internal dimension. This is the case where one or more MS take(s) measures with major negative implications on other MS. In such instances of governance failure, the actions taken may be consistent or inconsistent with international, European or national law. An example of unilateralism of that kind was the decision by German Chancellor Angela Merkel to permit the mass admission of migrants into Germany in September 2015. The prominent historian Heinrich August Winkler characterized the response as ‘Germany’s moral self-overestimation’ and spoke about the ‘ambivalence of the good’,142 whilst the Economist characterized it as ‘refugee realpolitik’.143 A sense of collective morality and elements of realist thinking have certainly played a role and may have partly motivated the policy-makers, but they cannot fully explain the disorderliness of the response and its effects on the stability and predictability of the German political system. According to detailed accounts of the crisis, this decision, as well as the follow-up actions of Germany, appears to have been circumstantial and driven by political considerations and confusion rather than guided by a well-thought-out plan.144 Whether the opening of the borders was legal or illegal, in particular under the German constitutional order, remains controversial.145 This was clearly a governance failure caused by the lack of emergency preparedness by the Union and the MS for this eventuality, although the signs have existed for years. In another instance, Hungary, Slovakia and Poland violated EU law and caused a parallel internal crisis in the Union through their refusal to relocate refugees in their territories. 4.3.5 Conclusion In its international relations, the EU is expected to follow the multilateral approach but this not the whole truth of the matter. It is one issue to determine whether an action takes place under the aegis of international institutions, and another issue to explore how the decision of the international institution has been reached. The Union and/or the MS have constructed for themselves the image of ‘vanguard’ and they attempt to universalize their own visions and political projects. This sort of ‘revisionism’ in international relations found its expression in their leadership role in the intervention in Libya, the naval operations against piracy and against smuggling, and the use of force against ISIS following the Paris attacks. Even if these activities can be characterized as ‘multilateral’ in the sense that they had the approval ‘in principle’ of the international community, there are important elements of cached unilateralism in that they were driven by the Union or some of the MS. European unilateralism has not always been 142 HA Winkler, ‘Deutschland’s moralische Selbstüberschätzung’, Frankfurter Allgemeine Zeitung (Frankfurt, 30 September 2015). 143 Charlemagne, ‘Refugee realpolitik’ The Economist (London, 22 October 2015). 144 See the account by Robin Alexander, Die Getriebenen – Merkel und die Flüchtlingspolitik: Report aus dem Innern der Macht (Siedler 2017). 145 See, for instance, the expert opinion by former Member of the Federal Constitutional Court Udo di Fabio, ‘Migrationskrise als föderales Verfassungsproblem’ (2015) 13(4) Zeitschrift für Staats- und Europawissenschaften 517.

424 Research handbook on the EU’s common foreign and security policy successful, in that it has ignored the expectations–capabilities gap.146 The grand vision of the democratization of Libya has ultimately contributed significantly to the generation of the migration crisis. Unilateralism may also indicate a systemic malfunction within the Union system. The initial decisions of Germany and the refusal of eastern European MS to cooperate in the crisis management have damaged the steering capacity of European law and have exposed the governance failures in the Union. Minilateralism provides the key to the internal power structure of the Union. Franco-German ‘trust’ is at the core of the Union’s decision-making capacity and preserves the Union’s international role and stability in the system of balanced multipolarity in the European and Eurasian spaces. This does not mean that minilateral cooperation always requires the presence of France and Germany, but that these two powers may create the framework conditions for the development of a variety of minilateral cooperation schemes.

5. MIGRATION MANAGEMENT AND THE COURT OF JUSTICE The current study is limited to the analysis of the three important decisions of the Court of Justice linked to the post-2015 migration policies. Two judgments of the Grand Chamber of the CJEU will be discussed here in the cases X and X v État belge147 and Slovak Republic and Hungary v Council of the European Union,148 as well as the three identical orders of the General Court in the cases NF, NG, and NM v European Council.149 The Court dismissed the appeals against the orders of the General Court as ‘manifestly inadmissible’ and decided that the applicants should bear the cost.150 5.1 Case X and X v Belgium: From Universalism to Particularism The case X and X v Belgium focuses on the dilemma between the universalist and the particularist alternatives, as they were expressed in the diverging approaches adopted by Advocate General Paolo Mengozzi and by the Court. Interpreting the Community Code on Visas (CCV), the Schengen Visa Code and the EU Charter of Fundamental Rights, the Advocate General constructed a universalist approach to the right to asylum, whilst the Court adopted a particularist interpretation on prima facie narrow and technical grounds. The core issue was whether the applicants, who were Syrian Christians from Aleppo, had the right to request a humanitarian visa with limited territorial validity according to Art. 25(1)(a) CCV in order to enter Belgium and request asylum. The Grand Chamber of the CJEU decided that, even though it had jurisdiction to respond to a request for a 146

See Chapter 21 in this volume. Case C-638/16 PPU, ECLI:EU:C:2017:173. 148 Joined Cases C-643/15 and C-647/15, ECLI:EU:C:2017:631. 149 Cases T-192/16, ECLI:EU:T:2017:128; T-193/16, ECLI:EU:T:2017:129; T-257/16, ECLI: EU:T:2017:130 respectively. 150 Order of the Court (First Chamber) of 12 September 2018 in Joint Cases C-208/17 P to C-210/17 P, ECLI:EU:C:2018:705. 147

The European Union as post-national realist power 425 preliminary ruling by the Belgian Conseil de Contentieux des Étrangers, the issue did not fall within the scope of the EU law, but of national law. The reason is, according to the Court, that the CCV has only determined the conditions for the issuance of visas not exceeding 90 days, and this is insufficient time for the completion of an asylum application. As there has so far been no wider EU regulation of long-term visas, the Court drew the conclusion that EU law, including the Charter for Fundamental Rights, was not applicable in the matter151 and the applicants had to apply for a long-term visa under national law. Moreover, without the mediation of the CCV there is no link to the interpretation of Belgium’s international obligations via the EU law.152 The particularist character of the judgment can be derived from the Court’s refusal to consider human rights-relevant standpoints. By referring the case back to national law, the Court enables Belgium and all other MS to decide on humanitarian visas on the basis of their own constitutional orders. The kind of particularism endorsed by the Court was therefore not a particularism of narrowly defined ‘European values’, but rather a national particularism, justified by lack of EU authority on the matter. Advocate General Mengozzi followed a very different reasoning, reaching a conclusion inspired by a universalist human rights approach, even though it was based on the interpretation of EU law. He argued that it would not have been necessary for the applicants to request a long-term visa and that a short-term visa would be sufficient for lodging an asylum application because then they would be entitled to stay in the country on a different legal basis, either as asylum-seekers or as beneficiaries of international protection.153 He also contended that the CCV does not link visa applications to the purpose, but only to the duration of the stay,154 and that visas issued under the above mentioned Art. 25(1)(a) CCV are within the scope of EU law because they are granted under the conditions provided for by the CCV.155 Importantly, the Advocate General contended that the EU Charter binds the actions of the MS without any territorial restriction, but only through a connection with EU law.156 The Opinion contended that the Charter had a broader scope than the ECHR and that the exceptional character of extraterritorial jurisdiction under the Convention was not a feature of the EU fundamental rights system.157 It also emphasized that the ‘humanitarian grounds’ as a prerequisite for the granting of a visa with limited territorial validity (LTV) under Art. 25 CCV include also situations of persecution or flight from war-related risks and that the discretion of the MS was limited in such circumstances.158 The Advocate General also made reference to the protection instrument that was not implemented during the crisis, i.e. the Temporary Protection Directive (TPD), as evidence for the ‘obligation to respect, in all circumstances, fundamental rights of an absolute character’.159 It should be considered at this point that the EU Council enjoys 151 152 153 154 155 156 157 158 159

Case C-638/16 PPU, paras 41, 44–45. ibid, para 43 of the judgment. Opinion of Advocate General Mengozzi, ECLI:EU:C:2017:93, para 53. ibid, para 60. ibid, para 67. ibid, paras 89, 93. ibid, paras 97–101. ibid, paras 130–132. ibid, para 171.

426 Research handbook on the EU’s common foreign and security policy a considerable discretion by the activation of the TPD and there is certainly no subjective right in that respect, unless the Council has already activated the Directive and an individual is excluded by a Member State from the expected protection.160 The Opinion concluded by proposing that MS must comply in the above context with the Charter of Fundamental Rights and are generally required to issue a humanitarian visa.161 The Opinion is impressive in its argumentation and conclusions. The Advocate General vigorously defended a universalist vision, even though he did not directly discuss international law. His technique was to ‘arm’ the Charter with universal protection values reaching beyond the scope of the ECHR and transform it into a truly ‘global’ model of protection: according to this interpretation, there would be no extraterritorial limitations in the scope of the Charter. The challenges to the implementation of this vision were clear to the Advocate General, who also tried to respond to the expected realist critique. Even in the introduction, the Opinion characterized the Czech government’s standpoint that a judgment creating an obligation to grant humanitarian visas would have ‘fatal consequences for the EU’ as ‘alarmist’,162 whereas later he characterized the situation in Syria as ‘apocalyptic’.163 Whilst acknowledging the current difficulties of the Union, he stressed that ‘[he did] not share that fear’ (e.g. of the Czech government). He then formulated the main policy issue that inspired his Opinion: It is, on the contrary … the refusal to recognise a legal access route to the right to international protection on the territory of the Member States – which unfortunately often forces nationals of third countries seeking such protection to join, risking their lives in doing so, the current flow of illegal immigrants to EU’s borders – which seems to me to be particularly worrying, in the light, inter alia, of the humanitarian values and respect for human rights on which European construction is founded … – In this respect, it is saddening to note that, despite the length and repetitiveness of the submissions made by the representatives of the 14 governments at the hearing of 30 January 2017, none of them referred to those values in relation to the situation into which the applicants in the main proceedings have been plunged and which has led the Court to trigger the urgent procedure.164

The Advocate General focused on the broader issue of lack of access of refugees to the legal procedures of the EU. He did not argue, though, that it would be necessary to enable some access to asylum procedures by amending the CCV in order to relieve the pressure of the flows, but stressed that ‘the legal route already exists’.165 His admission that 14 governments had supported a different interpretation was a warning sign not 160

Achilles Skordas, ‘Council Directive 2001/55 of 20 July 2001 on Minimum Standards for Giving Temporary Protection in the Event of Mass Influx, Art. 5’ in K Hailbronner and D Thym (eds), EU Immigration and Asylum Law – A Commentary (2nd edn, CH Beck/Hart/Nomos 2016) MN 1–2. 161 Opinion of the Advocate General (n 153) 176. 162 ibid, para 5. 163 ibid, paras 145–146. 164 ibid, paras 6–7. 165 ibid, paras 8–9.

The European Union as post-national realist power 427 merely of the unpopularity of his approach, but also of the lack of any consensus in the Union for such a radical reinterpretation of EU law. The Advocate General elaborated later on the risks facing the refugees and the responsibility of Belgium. His main point is that by refusing to grant a visa with LTV to asylum-seekers, Belgium had violated Art. 4 of the Charter of Fundamental Rights prohibiting torture or inhuman or degrading treatment or punishment. According to the Opinion, Belgium knew that the applicants would have the choice either to go back to Syria, and suffer the consequences of the war, or ‘to somehow negotiate, with the help of unscrupulous traffickers, a sea crossing to the European Union risking their lives in the process [and] are – if they do not drown or die from other causes – beaten, attacked and/or abandoned in drifting makeshift vessels until, in the best-case scenario, they are rescued by coastguards or by NGOs which have chartered search and rescue vessels’.166 He then rejected the possibility that the applicants could seek refuge in Lebanon, even though they could travel to the Belgian Embassy in Beirut, because, according to him, there were many legal obstacles and risks of violations of human rights. He stressed that ‘as regards particularly the situation of Christians, like the applicants in the main proceedings, representatives of intergovernmental organisations and NGOs echoed the fears of ostracism, intimidation and serious violence as regards that religious minority both in Lebanon and other neighbouring countries, such as Jordan, including even in refugee camps’.167 Despite the Opinion’s concern for the Christian minority, it is questionable whether the scope of a judgment accepting these arguments would be limited to this group, as the principle of non-discrimination would require a generalized application of the relevant provisions to all individuals alleging equivalent risks of persecution. The Advocate General summarized the asylum-seekers’ ‘negative trilemma’ in the following form: Frankly, what alternatives did the applicants in the main proceedings have? Stay in Syria? Out of the question. Put themselves at the mercy of unscrupulous smugglers, risking their lives in doing so, in order to attempt to reach Italy or Greece? Intolerable. Resign themselves to becoming illegal refugees in Lebanon, with no prospect of international protection, even running the risk of being returned to Syria? Unacceptable.168

The Opinion lastly attempts to respond to the ‘floodgates’ argument, in particular with regard to the overburdening of the consulates ‘by an uncontrolled flood of applications for humanitarian visas’. The response to this question should be ‘nuanced’ according to the Advocate General. First, he argued that the difficulties of reaching the consulates and making an appointment, then returning to Syria and coming back to Beirut to receive the decision, were so huge that it could not be expected that a ‘flow’ of applications could be generated. Second, he indicated that no influx of applications was observed when Belgium issued LTV visas in 2015.169 166 167 168 169

ibid, ibid, ibid, ibid,

paras 150–151. See also para 152 repeating the same argument. para 154. para 157. para 172.

428 Research handbook on the EU’s common foreign and security policy These arguments are not convincing. Other EU MS, including the UK and Germany, have enabled the resettlement of a limited number of migrants and refugees from Syria, following the rules of national law.170 However, there is a difference between visas granted at the discretion of individual MS and visas granted as the result of a right under EU law or international law. There is no reason not to assume that various ‘intermediaries’ would try to channel migrants to EU representations with the support of some of the regional states. Moreover, the argumentation of the Advocate General has an inherent contradiction here, in that his clear objective is to enable legal access to the Union territory to all migrants who would otherwise try to travel with the help of the smuggling networks. Therefore, the declared aim of the interpretation of the CCV is to facilitate the movement of asylum-seekers from the Middle East – and perhaps from other parts of the world – to the Union. The Advocate General appears not only to overlook the global consequences of this approach, but to attempt a ‘normative overreach’ impermissible to the courts. He also failed to assess the compatibility of such practices with the functions of diplomatic and consular representations under international law. Indeed, the complexity of the management of mass migration flows cannot be overcome through an activist interpretation of Art. 25(1)(a) CCV, but though a variety of instruments, including partnership agreements with third states, readmission agreements and arrangements similar to those agreed between the EU MS and Turkey. A judgment recognizing a right to enter the asylum-seeker’s preferred MS would make the principle of EU-wide or global burden-sharing obsolete.171 The Opinion’s universalism constitutes here a direct affront to the core of realism, and the Advocate General made no reasonable effort to define the interest of the Union. His Opinion was moved more by emotion than by law, despite the opposite assertion in the last paragraph before the Conclusions. There, after recalling the tragic death of Alan Kurdi and of members of his family, the Advocate General added: It is commendable and salutary to be outraged. In the present case, the Court nevertheless has the opportunity to go further, as I invite it to, by enshrining the legal access route to international protection which stems from Article 25(1)(a) of the Visa Code. Make no mistake: it is not because emotion dictates this, but because EU law demands it.172

There is no doubt that the interpretation given to EU law by the Opinion is a possible one, but still it is not convincing in view of the overall normative and factual context of the case, and of its potential consequences. It seems that emotion arising from the sense of powerlessness that the European legal profession feels before the migration crisis was a strong motivating factor for this interpretation. But, as Niklas Luhmann

170

Skordas (n 160). According to para 4 of the Preamble of the 1951 Convention Relating to the Status of Refugees, ‘the grant of asylum may place unduly heavy burdens on certain countries, and … a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation’. 172 Opinion of the Advocate General (n 153), para 175. 171

The European Union as post-national realist power 429 succinctly put it, ‘modern society is more endangered by emotionality than one usually thinks’.173 The CJEU judgment did not only reject the universalism of the Advocate General’s Opinion. The particularism it endorsed was linked to the democratic principle and to the rule of law, even if it did not explicitly refer to these principles. The democratic principle requires that decisions with such momentous consequences should be adopted by the competent organs of the Union through a procedure that guarantees the participation of the MS and the European Parliament. The rule of law requires that non-citizens should enter the Union following well-structured selection and authorization procedures that respect the sovereignty of the host states, and preserve the functions of the diplomatic and consular premises of the MS. Opening the Union’s external borders to asylum-seekers even beyond the scope of Art. 3 ECHR per judicial act would not guarantee any orderly entrance procedure, but would trigger a major political crisis in the Union. The judgment represents the essence of ‘liberal realism’ in that it preserves the democratic principle, the rule of law and good governance, and safeguards the predictability and stability of the relationship between the Union and the MS, as well as good relations between the EU/MS and third states. 5.2 Slovak Republic and Hungary v Council of the European Union: Solidarity as Emergency Governance The judgment in the joined cases of Slovak Republic and Hungary v Council on the relocation quotas for refugees ruled on the legality of Council Decision on the relocation of refugees from Italy and Greece to other MS.174 The Decision is one of the three major policy measures of the Union for the management of the refugee flows, the other two being the EUNAVFOR Med Operation Sophia, and the EU-Turkey Statement. The Court dismissed the applications and confirmed the legality of the Decision. The core issue of the joined cases is the principle of solidarity, and it is necessary to reflect on how the Court conceived of solidarity, as an ethical/ redistributive principle committing the Union to a generous refugee protection policy, or rather as a ‘realist’ guiding principle of the Union’s action for migration governance in emergencies. Poland as an intervener rejected solidarity in practice and in principle. The intervener argued, inter alia, that relocation measures would have disproportionate effects in terms of efforts and burdens for those MS which were ‘virtually ethnically homogeneous, like Poland and whose populations [were] different, from a cultural and linguistic point of view, from the migrants to be relocated on their territory’.175 Two points made by the Court are significant in this context: first, that this position implied that a binding relocation mechanism under Art. 80 TEU would be impossible under any circumstances, and second, that ‘considerations relating to the ethnic origin of applicants for international protection cannot be taken into account since they are clearly contrary to 173 174 175

N Luhmann, Social Systems (Stanford University Press 1995) 270. Council Decision (EU) 2015/1601 of 22 September 2015, OJ 2015 L 248/80. Joined Cases C-643/15 and 647/15 (n 148) para 302.

430 Research handbook on the EU’s common foreign and security policy EU law and, in particular, to Article 21 of the Charter of Fundamental Rights of the European Union’.176 The Court followed the Opinion of Advocate General Bot, but it is prima facie not obvious whether solidarity was understood by the Court as a liberal or rather as a realist principle applicable among MS.177 There are some semantic differences, but also similarities, between the Opinion and the judgment of the Grand Chamber that might help elucidate the Court’s approach. Labayle analysed these differences, arguing that even though the Advocate General had created expectations for a ‘remarkable judgment’, these expectations were not fulfilled by the Court. In Labayle’s terms, the Court was unwilling to take part in the debate on the scope and significance of solidarity in the EU legal order.178 Labayle makes a strong point. Indeed, the AG raises the profile of solidarity as a principle of EU law, considering that it is ‘among the cardinal values of the Union and is even among the foundations of the Union’ without which the ever-closer Union would not be possible.179 Moreover, he considers solidarity as a ‘founding and existential value of the Union’180 and emphasizes that it ‘continues to form part of a set of values and principles that constitutes the “bedrock of the European construction”’.181 Furthermore, according to the Opinion, ‘solidarity is both a pillar and at the same time a guiding principle of the European Union’s policies on border checks, asylum and immigration’,182 whose implementation is justified by the ‘de facto inequality between Member States because of their geographic situation and their vulnerability in the face of massive migration flows’.183 The Grand Chamber’s judgment urges more ‘restraint’ in that regard, ruling merely about the obligation to ‘give effect to the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States’ (Art. 80 TFEU).184 This is also a phrase used by the Advocate General, with the difference that, as already stated, the Opinion then goes further than the judgment.185 The function of solidarity can be conceptualized considering the judicial strategy of the applicants and the intervener. Slovakia, Hungary and Poland attempted to fully neutralize the capacity of the Union to take measures in migration emergencies 176

ibid, para 305. Solidarity as a principle of EU migration law does not indicate a commitment of the Union or of its MS to persons in need of international protection, or to non-MS in need, but was intended to be a principle applicable among MS, see Gregor Noll, ‘Failure by Design? On the Constitution of EU Solidarity’ in Searching for Solidarity in EU Asylum and Border Policies (Odysseus Network – Omnia Project 2016) 3–4. 178 Henry Labayle, ‘Solidarity is not a principle: Provisional relocation of asylum-seekers confirmed by the Court of Justice’ at: . 179 Opinion of Advocate General Bot, ECLI:EU:C:2017:618, para 17. 180 ibid, para 18. 181 ibid, para 19. 182 ibid, para 20. 183 ibid, para 22. 184 Joined Cases C-643/15 and 647/15 (n 148) para 252. 185 See, for instance, the Opinion of the Advocate General (n 179) paras 21, 22, 171. 177

The European Union as post-national realist power 431 invoking first, the alleged inadequacy of Art. 78(3) TFEU as the legal basis for the relocation measures, second, the alleged procedural deficiencies by the adoption of the Council Decision, and third, the alleged substantive deficiencies, in particular the lack of proportionality of the measures. Under the first category, it was argued that the contested measures had a legislative character, that they did not have a provisional character, and did not fulfil the conditions of Art. 78(3) TFEU. In the second category, the applicants put forward a very narrow and inflexible interpretation of the procedural rules that, if accepted by the Court, they would paralyse the Union’s action. In the third category, they argued that the relocation measures were neither appropriate nor necessary and that they violated the principles of legal certainty and the 1951 Geneva Convention. This was not a bona fide recourse to the Court, but pure obstructionism of the Union’s action. The bad faith was particularly visible when Hungary refused to be included in the beneficiaries of the system and then argued that it should not be included among the states of relocation either because it was ‘in an emergency situation because the migratory pressure on its borders had not diminished’ and the imposition of further burdens on it would be disproportionate.186 The response of the Court was vigorous. The Court emphasized the significance of solidarity, broad discretion of the Union organs, and flexibility in the interpretation of the respective rules, and accepted that the measures were both appropriate and necessary. According to the judgment, ‘the EU institutions must be allowed broad discretion when they adopt measures in areas which entail choices, in particular of a political nature, on their part and complex assessments’.187 Moreover, the Court emphasized that the relevant provisions of the TFEU were ‘complementary, permitting the European Union to adopt, in the context of the common policy on asylum, a wide range of measures in order to ensure that it has the necessary tools to respond effectively, both in the short term and in the long term, to migration crises’.188 The judgment also stressed that considerations as to flexibility must, a fortiori, prevail in the case of the procedure for adopting an act on the basis of Article 78(3) TFEU, since the purpose of that provision is to make it possible for provisional measures to be adopted quickly so as to provide a rapid and effective response to an ‘emergency situation’ within the meaning of that provision.189

Defending the proportionality of the relocation system, the AG defined the correlation among the above principles as follows: As the Council correctly states, such a flexible solution is justified owing to the very dynamic nature of migratory flows and allows the content of the contested decision to be adapted to circumstances, in the desire for solidarity, effectiveness and proportionality. It cannot therefore be considered that by acting in that way the Council went beyond what is necessary in order to attain the objective pursued by the contested decision.190 186 187 188 189 190

Joined Cases C-643/15 and 647/15, paras 279 ff. in particular 289. Joined Cases C-643/15 and 647/15, para 124. ibid, para 74. ibid, para 180. Opinion of the Advocate General (n 179), para 283, my italics.

432 Research handbook on the EU’s common foreign and security policy The judgment reveals the function and nature of solidarity, as far as migration law is concerned, but perhaps also beyond that. Solidarity is a governance principle and in its current articulation it ensures the governability of the Union in migration emergencies. Solidarity should be effectively implemented through a flexible interpretation and application of the relevant rules in order to achieve burden-sharing among the MS and prevent the destabilization of political and social order in the frontline states. The difference of approach between the Advocate General and the Court may be explained by the fact that the Opinion considered solidarity as a ‘normatively thick’ foundational principle of the Union, whilst the judgment treated it only as a principle of effective governance with a more open and cognitive character, easily adaptable to a variety of emergencies and other circumstances. As appears from the above excerpt of the Opinion, the Advocate General followed the same line of thought at this point, but integrated this aspect into a broader principle. The Court resisted the temptation to transform solidarity into another ‘polemical/ideological concept’191 but preferred to define it as a ‘liberal realist’ legal principle enabling risk management. The principle is ‘realist’ because it allows the Union to bring emergencies ‘rapidly and efficiently’ under control192 and ‘liberal’ because it ensures the swift transfer of the persons in need of international protection in a safe environment. The balance tilts slightly on the side of realism because protection is granted depending on the capacities of the Union and the MS and not on the preferences and needs of persons in need of international protection.193 However, this is not yet the end of the story. The controversy on the relocation revealed the wide legal–cultural divide between the West and the East of the EU, and the shortcomings of the Union governance. More importantly, it showed a fundamental fault in the Union’s structure, in that the relocation system imposes national quotas for the persons concerned in a space without internal borders where freedom of movement is recognized only for EU citizens, but not for third-country nationals who enjoy only limited mobility rights granted to them under secondary EU law. Bast’s proposal to enable the free movement of refugees as an expression of solidarity through progressive supranationalization194 is conceptually very attractive, but practically difficult to

191

On the ‘polemical concepts’, see Carl Schmitt, Der Begriff des Politischen (6th edn, text of 1932, Duncker und Humblot 1996) 31. 192 Joined Cases C-643/15 and 647/15 (n 148), para 133. 193 This analysis does not exhaust the discussion on solidarity and governance because of the multifaceted character of solidarity and its broader role in governance. For the area of migration, see for instance Daniel Thym and Lilian Tsourdi, ‘Searching for Solidarity in the EU Asylum and Border Policies: Constitutional and Operational Dimensions (2017) 24 Maastricht Journal of European and Comparative Law 605–621; Lilian Tsourdi, ‘Solidarity at Work? The Prevalence of Emergency-driven Solidarity in the Administrative Governance of the Common European Asylum System (2017) 24 Maastricht Journal of European and Comparative Law 667–686; Violeta Moreno-Lax, Solidarity’s Reach: Meaning, Dimensions and Implications for EU (External) Asylum Policy (2017) 24 Maastricht Journal of European and Comparative Law 740–762, 744–746. 194 Jürgen Bast, ‘Deepening Supranational Integration: Interstate Solidarity in EU Migration Law’ (2016) 22 European Public Law 289.

The European Union as post-national realist power 433 achieve, because of the differentiated constitutional treatment of the above categories of persons under the Treaties. 5.3 NF, NG and NM v European Council (2017): From Border Protection to Border Management The orders of the General Court in the above three cases195 and the critical academic response offer sufficient material for some further thoughts on the geopolitical significance and nature of the Statement and of the judicial deference to the MS. The General Court denied jurisdiction based on Art. 263 TFEU, ruling that the Statement did not constitute an agreement between the EU and Turkey. It also ruled that under these circumstances its nature as a political arrangement or as a legally binding agreement was irrelevant for the Court, because in either case it would develop effects only in the relations between the MS and Turkey.196 Both the Statement and the orders were met with scepticism and reservations in academic writing and were criticized on various grounds. The Statement was criticized either because there were good reasons to consider it as a binding international agreement, or because the European Council had evaded EU law by circumventing the procedural constraints of treaty-making and by allegedly enabling the violation of human rights of refugees under international law and EU law.197 One scholar characterized the orders as an expression of ‘denialism’ and ‘supreme expression of realism’,198 whilst others criticized the Statement as ‘extra-Treaty decision-making in EU migration policy’.199 This is not the place to discuss these diverse opinions, but rather to see both the Statement and the orders in a different light. The failure of the traditional concept of border ‘protection’ compelled the Union and the MS to think creatively. The Statement was actually a ‘regulatory arrangement’ between the MS and Turkey for the management of migration flows, where the legal or political nature of the agreement is not as important as its capacity to generate the intended effects and ensure compliance of the parties. The Statement did not intend to stop the movement of migrants by exclusively enhancing the military or police 195

See supra (nn 149, 150). Case T-192/16 NF v European Council ECLI:EU:T:2017:128, paras 70–71. 197 See among others Maarten den Heijer and Thomas Spijkerboer, ‘Is the EU-Turkey refugee and migration deal a treaty?’ available at: ; Steve Peers, ‘The draft EU/Turkey deal on migration and refugees: is it legal?’ available at: ; Jenny Poon, ‘EU-Turkey Deal: Violation of, or Consistency with, International Law?’ (2016) 1 European Papers 1195. See also Daniel Thym, ‘Why the EU-Turkey Deal Can Be Legal and a Step in the Right Direction’, available at: ; Gloria Fernández Arribas, ‘The EU-Turkey Statement, the Treaty-Making Process and Competent Organs – Is the Statement an International Agreement?’ (2017) 2 European Papers 303. 198 Enzo Cannizaro, ‘Denialism as the Supreme Expression of Realism – A Quick Comment on NF v. European Council’ (2017) European Papers – European Forum 1. 199 Sergio Carrera, Leonhard den Hertog and Marco Stefan, ‘It Wasn’t Me! – The Luxembourg Court Orders on the EU-Turkey Refugee Deal’ (2017) 15 CEPS Policy Insights 9. 196

434 Research handbook on the EU’s common foreign and security policy cooperation between Greece and Turkey; it rather introduced a ‘smart’ policy by making the smuggling business obsolete. It was agreed not only that ‘all new irregular migrants crossing from Turkey into Greek islands as from 20 March 2016 [would] be returned to Turkey’, but also that ‘for every Syrian being returned to Turkey from Greek islands, another Syrian [would] be resettled from Turkey to the EU taking into account the UN Vulnerability Criteria’.200 As a consequence, migrants wishing to cross to the EU illegally knew that they would open the resettlement door for somebody else, but not for themselves. This is how the almost immediate collapse of the migrant flows could be rationally reconstructed. As long as Turkey complied with this arrangement, the resumption of migrant movements via Greece would be possible only if two conditions were to be met cumulatively: first, those illegally crossing to the Aegean islands were permitted to move to continental Greece, and second, that smuggling networks assisting them to travel to Central Europe individually, or in small groups, by providing them with falsified travel documents were tolerated by the Greek authorities.201 The Orders are also a source of further information on the migration crisis. For instance, the applicant NF did not invoke any relevant asylum ground, even prima facie. He claimed that he had to flee Pakistan fearing persecution and serious harm and that he had ‘been the subject of assassination attempts designed to prevent him, as an only son, inheriting his parents’ property’.202 All three applicants explained that they were ‘coerced’ to apply for asylum in Greece, even though they did not want to, but, instead they preferred to move to other EU MS.203 Claims of such quality formulated in the context of legal procedures before the Union’s highest court demonstrate, at least, the deeply pathological state of the implementation and enforcement of European law during the migration crisis. There is a deep sense of normative discontent with regard to this state of affairs, including the feeling that the Statement has been ‘ugly but necessary’. Moreover, the three orders would make more sense if the General Court had decided that the Statement constituted a non-binding arrangement between the EU and Turkey. Nonetheless, the Statement created a kind of ‘model’ for managing migration flows with the help of third countries, enhancing, inter alia, the practice of returning illegal migrants, including rejected asylum-seekers, through readmission agreements with the states of nationality. The ‘Joint Way Forward on migration issues’ between Afghanistan and the EU,204 and the ‘new Partnership Framework with third countries under the European 200

EU Turkey Statement, 18 March 2016, paras 1 and 2 respectively. ‘Mehr Flüchtlinge mit gefälschten Pässen aus Griechenland’, Frankfurter Allgemeine Zeitung (Frankfurt, 8 December 2017); see also ‘Griechenland bringt weitere Flüchtlinge aufs Festland’, Handelsblatt (11 December 2017). 202 NF v European Council (n 196), para 10. 203 Case T-193/16 NG v European Council ECLI:EU:T:2017:129 para 12; NF v European Council (n 196), para 12; Case T-257/16 NM v European Council ECLI:EU:T:2017:130, para 12. 204 Signed in Kabul, 2 October 2016, followed immediately by the Brussels Conference on Afghanistan, focusing on financial assistance to support reforms in Afghanistan, Press Release, 4 October 2016; see also the Joint Commission-EEAS non-paper on enhancing cooperation on migration, mobility and readmission with Afghanistan, 6738/16, 3 March 2016. 201

The European Union as post-national realist power 435 Agenda on Migration’205 exemplify the Union’s new-found realism in migration matters. These practices include a variety of instruments and are applied in differentiated situations. Some of the practices are indisputably legal, others may be illegal, and some are on the boundaries between legality and illegality. Whilst the return of Afghan citizens who are illegally in the Union to Afghanistan might be legal, depending on the situation in the country, the question of the potential international responsibility of the Union and some MS for the situation of migrants who are trapped in Libya as a result of the cooperation between the EU and the Libyan authorities or militias is largely unsettled.206 In cases where the CJEU lacks jurisdiction, in particular in informal arrangements and agreements, respect for human rights depends on the implementation practices of the parties. 5.4 Conclusion The case-law of the Court of Justice post-2015 readjusted its focus from universalism to particularism and from the expansive interpretation of fundamental rights law to migration and border management. This change of perspective could appear surprising, taking into account the positive assessment of the EU migration and refugee policies in terms of human rights in the pre-2015 period.207 The turn of the Court towards the broader governance perspective and the recognition of solidarity as a principle of EU law and migration law by the recent case law was necessary to enable the Union to respond ‘flexibly and effectively’ to the challenges of irregular mass migration. At the same time, the Court refused to recognize the ethno-nationalist ‘disobedience’ of some MS and their illiberal realism, and outright rejected the sort of unilateralism that causes systemic malfunction by non-compliance with EU rules. In this context, the policy structure inspired by ‘liberal realism’ enables particularism if it advances the principles of democracy, rule of law and good governance. However, in instances of legal uncertainty on the rights and fate of migrants upon their return to their country of nationality or to a third host country, there is a risk of violation of human rights law.

205 Communication from the Commission COM (2016) 385 final; see also the Fifth Progress Report on the Partnership Framework COM (2017), 6.9.2017. The comparison between the ‘new Partnership Framework’ of 2016, and the preceding ‘Global Approach to Migration and Mobility’, Communication from the Commission COM (2011) 743 final demonstrates that there is more than a mere semantic transition. 206 However, it seems difficult to establish the international responsibility of the EU and the MS under the respective ILC articles: see Achilles Skordas, ‘A “blind spot” in the migration debate? International responsibility of the EU and its Member States for cooperating with the Libyan coastguard and militias, at . 207 See Cathryn Costello, The Human Rights of Migrants and Refugees in European Law (OUP 2016).

436 Research handbook on the EU’s common foreign and security policy

6. COMMON SECURITY AND DEFENCE POLICY: THE TURN TO MINILATERALISM The ‘regular’ multilateral model for the establishment of CSDP missions is based on Arts 42(4) and 43(2) TEU208 and includes the EU Military Rapid Response Concept.209 Apart from that, the TEU offers also other normative avenues for facilitating the Union’s military initiatives and for advancing defence integration among the MS. These avenues provide for coalitions of the willing (Art. 44 TEU), enhanced cooperation (Art. 20 TEU) and PESCO (Art. 44(6) TEU, Protocol No. 10). The common feature of these three possibilities is that they adopt the minilateral model. Moreover, PESCO is the ‘main game in town’ and this is why it will be discussed more closely. 6.1 Coalitions of the Willing (Art. 44 TEU) The ‘coalitions of the willing’ under Art. 44 TEU should be distinguished from the coalitions of the willing on the international plane, where EU MS and other UN members may participate with a view to undertaking an action under international law, even though the same reasoning underpins both of them. The activities of coalitions of the willing on the international plane may be legal or illegal, legitimate or illegitimate, depending on the stance of the UNSC and of other UN members. The coalitions of the willing in Art. 44 TEU refer to the composition of a force authorized to take crisis management action provided for in Art. 43 TEU. There is no minimum number of participating states, but the scope of the activity is defined unanimously by the Council, and the participating states merely implement the Council’s decision. The states involved ‘shall agree among themselves on the management of the task’ (Art. 44(1) second sentence TEU), and have to inform the Council on the progress of implementation, on its completion and on the necessity of the amendment of the scope or objectives, whereupon the Council ‘shall adopt the necessary decisions’ (Art. 44(2) TEU). The coalitions of the willing of Art. 44 TEU are complementary to the more integrated EU Military Rapid Response Concept.210 This form of minilateralism is highly flexible but also highly centralized. The coalition acts as long as it is authorized by the Council, and it is not possible to create any strategic concept for future involvement or operations. The question of unanimity or qualified majority within the coalition does not exist as they simply have to agree on the modalities of the successful implementation of the task. This is a weak form of minilateralism in terms of the decision-making autonomy of the coalition of the willing.

208 See Preamble of Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED) OJ 2015 L 122/31. 209 Council Doc. 17036/1/14 REV 1, 8 January 2015, paras 35–36. 210 Council Doc. 7032/15, 9 March 2015, ‘Military Advice on EEAS Food For Thought Paper (FFT) on Article 44 TEU’, para 13.

The European Union as post-national realist power 437 6.2 Enhanced Cooperation (Art. 20 TEU) The enhanced cooperation is not limited to security and defence but extends to all areas of non-exclusive Union competence (Art. 20(1) TEU), and a minimum number of nine participating MS is required (Art. 20(2) TEU). A framework of enhanced cooperation relating to defence and security must be authorized by the Council, acting unanimously, after the High Representative and the Commission have given opinions on the consistency of the proposed framework with the Union’s CFSP/CSDP policies and the other EU policies respectively (Art. 329(2) TFEU). The MS that participate in the framework of the enhanced cooperation must take decisions unanimously. This conclusion can be drawn from the combined application of Arts 20(3) TEU, and 330 and 333 TFEU. Art. 20(3) TEU specifies that the voting rules for the states participating in enhanced cooperation are determined by Art. 330 TFEU, which is open to both unanimity and qualified majority. As the applicable voting rules depend on the subject matter of the enhanced cooperation, in the areas of defence and security the participating states are expected to decide by unanimity. In matters requiring unanimity, the Council may unanimously decide that it will act with a qualified majority (Art. 333(1) TFEU). However, this ‘shall not apply to decisions having military or defence implications’ (Art. 333(TFEU), and therefore the participating states can only take decisions unanimously in these areas (see also Art. 31(2)–(4) TEU).211 The only limit in the scope of the activities is their consistency with the general framework of CFSP/CSDP and the other Union policies under the TFEU. Enhanced cooperation therefore has an ambivalent face. It is restrictive with regard to the number of participating states, to the necessary unanimity of the Council’s decision to authorize the framework and to the unanimity required among the participants in the enhanced cooperation where there are military or defence implications. This form of minilateralism does not facilitate the efforts of integration in the area of security and defence and for this reason, the MS preferred to activate and pursue the PESCO avenue. 6.3 Permanent Structured Cooperation (PESCO) (Art. 42(6) TEU, Protocol No. 10) Art. 42(6) TEU and Protocol No. 10 are the legal bases for the third and most important minilateral option offered by the TEU for the facilitation of security integration.212 PESCO, including the development of EU Battlegroups (EU BG), is the basic pillar of the future CSDP activities and was formally established by Council Decision 2017/2315 in December 2017.213 PESCO demonstrates clearly the dynamic of minilateralism, and is not limited to an ad hoc arrangement among several MS, but intends to create a system which would be both ‘structured’, armed with a decisionmaking capacity following certain rules, and ‘permanent’, without any temporal 211

See generally Hermann-Josef Blanke, ‘Article 20’ in The Treaty on European Union (TEU) – A Commentary (n 56), MN 42–43. 212 See Koutrakos (n 104) 73–76. 213 Council Decision (CFSP) 2017/2315 of 11 December 2017, OJ 2017 L 331/57.

438 Research handbook on the EU’s common foreign and security policy limitations or sunset provisions. Indeed, the idea of PESCO, as formulated by the TEU, is to enable those MS wishing to establish a closer cooperation in security and defence to do so. Decisions are in principle taken unanimously, but only by the states participating in the system (Art. 46(6) TEU). In addition, there is no inconsistency between PESCO’s minilateral character and the principle of inclusiveness, stipulated by Decision 2017/2315.214 On the contrary, the distinction between minilateralism and inclusiveness defines the nature of PESCO: A realistic phased approach is key to preserve the participation of a vanguard of Member States in PESCO and thus, to preserve the principles of ambition and inclusiveness. While participating Member States will work towards achieving all of their commitments as soon as PESCO is officially launched, some commitments can be fulfilled sooner than others. To that end, a phased approach has to be agreed by the participating Member States.215

Inclusiveness does mean participation of all MS, but the creation of a system that facilitates the participation of the greatest number of them over time. The system is based on France and Germany as the drivers and ‘vanguard’ of PESCO, and on the variable geometry of the commitments to be undertaken. The principle of inclusiveness appears to be fulfilled, as 25 of the 28 MS are participating, with the exceptions of the UK, which may still support the system,216 Denmark under the terms of Protocol (No. 22), and Malta.217 However, this is also the biggest risk to military integration: the participation of practically all MS at this early stage and before the PESCO takes a concrete and irreversible shape may nullify the advantages of minilateralism and reintroduce the disadvantages of unanimous decision-making through the back door. There are three substantive conditions for the establishment of PESCO: first, the interested MS should have ‘military capabilities [fulfilling] higher criteria’, second, they should undertake ‘more binding commitments to one another’, and third, they should be prepared to undertake ‘the most demanding missions’ (Art. 42(6) TEU). In terms of procedure, the MS concerned should notify the Council and the High Representative of the Union for Foreign Affairs and Security Policy of their intention in advance of a decision of the Council to establish PESCO. The structured cooperation should be approved by the Council within three months from the notification by qualified majority following consultations with the High Representative (Art. 46(2) TEU). This is an exception to the unanimity rule of CFSP/CSDP (Art. 31 TEU) and aims to facilitate the establishment of PESCO. PESCO will enhance the capacities of the Union in crisis management situations of multinational character (Arts. 42(1) and 43 TEU), but it was not intended to provide self-defence capabilities.218 However, in this respect the Decision goes beyond the 214

See for instance, Annex I, para 2. Council Decision (CFSP) 2017/2315, Annex III.3, second para. 216 According to the Foreign Secretary Boris Johnson, see: Andrew Rettman and Caterina Tani, ‘EU takes step toward joint army’ euobserver (13 November 2017) available at: . 217 Council Decision (CFSP) 2017/2315, Art. 2; see also Preamble, para 11. 218 See Graf Kielmansegg, ‘Art. 46’ in The Treaty on European Union (TEU) – A Commentary (n 56), MN 24. 215

The European Union as post-national realist power 439 PESCO constraints of the TEU and the Protocol (No. 10) by specifically ‘recalling’ the mutual assistance clause of Art. 42(7) TEU.219 In both instances, crisis management and self-defence, the level of engagement can be expected to be deeper and broader compared to past and current CSDP practices, as the term ‘the most demanding missions’ indicates. In that regard, the participating MS in the PESCO should supply ‘targeted combat units … structured at a tactical level as a battle group’.220 As a study of the European Parliament stresses, the practice so far has shown that the CSDP has not been able to develop an autonomous capability without PESCO.221 The same study even argues that as PESCO intends to develop ‘an autonomous capability’ for the Union with a high level of ambition, ‘the issue of nuclear deterrent will resurface sooner or later’.222 The instances of crisis management ‘outside the Union’ are those provided for in Articles 42(1) and 43 TEU, and correspond to activities within the rationale of collective security (conflict prevention and strengthening of international peace and security).223 The relevant CSDP action, using PESCO capabilities, would probably be based on a UNSC authorization under Chapters VI and VII.224 The Union may also use the PESCO capabilities and the EU BG unilaterally because Art. 42(1) TEU does not require an explicit authorization by the organs of the United Nations, but it is sufficient that the action is ‘in accordance with the principles of the United Nations’. The ‘Declaration concerning the common foreign and security policy’225 recognizes that the EU and the MS ‘will remain bound by the provisions of the United Nations and, in particular, by the primary responsibility of the Security Council and its Members for the maintenance of international peace and security’, but does not imply that the Union may only act following an explicit authorization for two reasons: first, because the Declaration avoids establishing a legal obligation for the Union (‘will’ instead of ‘shall’); and second, because it cannot clarify the inherent ambiguities of the UN Charter with regard to the use of force, including the meaning of ‘primary’ responsibility, and the possibilities of non-authorized, but arguably ‘legitimized’ collective action. The reference to Art. 42(7) TEU opens the possibility of PESCO capabilities being used for self-defence. This raises the question whether the MS participating in PESCO could design a self-defence system with permanent and structured character among themselves on the basis of the Council Decision. This interpretation would circumvent the authority of the European Council to decide unanimously an EU common defence policy according to Art. 42(2) TEU.226 The reference to Art. 42(7) TEU in the context 219

Preamble of the Decision, para 3, and Notifications, Preamble, paras 13–14. Protocol (No. 10), Art. 1(b); see also EU Battlegroup Concept, Council Doc. 11624/14 EXT 1, 14 December 2016 and EU Military Rapid Reaction Force, EEAS 17036/1/14 REV 1, 8 January 2015. 221 EP, ‘Permanent Structured Cooperation: national perspectives and state of play’, 2017, 14. 222 ibid, 33. 223 Koutrakos (n 104) 57–61. 224 Protocol (No. 10), Preamble, para 8. 225 Lisbon Treaty, Declaration No. 13, OJ 2010 C 326/345. 226 ‘PESCO is a crucial step towards strengthening the common defence policy. It could be an element of a possible development towards a common defence should the Council by 220

440 Research handbook on the EU’s common foreign and security policy of PESCO indicates, however, that the progress of military integration within the Union would enable MS to employ PESCO capabilities for mutual assistance according to their national defence plans and national constitutional provisions beyond the authority of the Union. There is nothing in the TEU suggesting that integrated capabilities of MS cannot be used for the purpose of collective self-defence. On the contrary, the principles of a ‘single set of forces’ and interoperability of the EU BG227 leads to the conclusion that PESCO capabilities can be employed in mutual assistance situations. In such instances, minilateral structures facilitate unilateral course of action, following the legal nature of self-defence and the unilateral definition of an armed attack by the victim states and those that support it (Art. 51 UN Charter). In cases of unilateral defence action, not covered by a unanimous decision by the Council, the participating MS should bear all expenses of the PESCO assets they would employ. PESCO is normatively stronger than other forms of security and defence cooperation in the Union because of the possibility of sanctions against a participating MS that does not fulfil its commitments. In such a case, the Council may decide to suspend that state’s participation by qualified majority in a composition where only the PESCO members can vote, with the exception of the MS in question (Art. 46(4) TEU). Such a measure would result in huge reputational damage for the suspended state and therefore the above rule constitutes a good deterrent against non-compliant MS. In terms of commitments and projects, the Council Decision on PESCO is part and parcel of an ambitious agenda. The participating states undertook, among other things, the obligations to ‘regularly [increase] defense budgets in real terms in order to reach agreed objectives’, to increase both defence investment expenditure to 20 per cent and the research and technology expenditure to 2 per cent of total defence spending,228 and to cooperate in the area of cyber defence.229 In a Declaration on PESCO projects, the participating states agreed, inter alia, on a European Medical Command, a European Secure Software defined Radio (ESSOR), an Upgrade of Maritime Surveillance, an Armoured Infantry Fighting Vehicle, Indirect Fire Support (Euroartillery), and a EUFOR Crisis Response Operation Core (EUROFOR CROC). Together with the creation of a European Defence Fund and the strengthening of a single market for defence,230 the creation of the Military Planning and Conduct Capability (MPCC) as an EU military command in Brussels,231 the improvement of military mobility in the

unanimous vote decide so (as provided for in article 42.2 TEU). A long term vision of PESCO could be to arrive at a coherent full spectrum force package – in complementarity with NATO, which will continue to be the cornerstone of collective defence for its members’, Council Decision (CFSP) 2017/2315, Annex I, para 3, my italics. 227 Protocol (No. 10), Preamble, para 3 and Art. 2(c); Council Decision (CFSP) 2017/2315, Annex, para 13. 228 Council Decision (CFSP) 2017/2315, Annex, paras 1–4. 229 ibid, Annex, para 11. 230 Communication from the Commission, ‘European Defence Action Plan’ COM (2016) 950 final. 231 Outcome of the Council Meeting (Foreign Affairs) 7019/17 (6 March 2017) 4, para 5.

The European Union as post-national realist power 441 Union,232 the activation of the EU BG,233 the Framework Nation Concept (FNC),234 the EU Military Rapid Response Concept,235 and the creation of the European Border and Coast Guard,236 a framework for common security and defence is in place without having to be a standing army.237 This defence concept corresponds to the quality of long-term geopolitical risks that the Union has been facing from the Eurasian and the MENA regions. The drafters of the PESCO do not intend to replace NATO in its role as guarantor of European security against a massive military attack from the East, which is a rather unlikely scenario, but they tailored the European common defence to the quality and size of management of complex and novel security risks, such as hybrid threats, cyber threats, terrorism, risks emanating from the mass influx of persons towards the Union, or from piracy.238 This minilateral and realist project of PESCO/CSDP raises three important questions, namely (a) whether it could lead to a Franco-German-led ‘militarization’ of the Union, similar to Germany’s predominance in the Euro area, (b) whether it constitutes a remake of the doomed effort to create a European army in the 1950s, and (c) whether it is necessary to involve national parliaments in the decision to establish PESCO in view of its significance.239 Even though it is not possible to undertake a full analysis of these topics here, a brief answer should be attempted. First, the ‘domination risk’ by France and Germany is non-existent and cannot be compared to Germany’s position in financial matters. Because of its historical trauma, Germany is hesitant to get involved in armed conflicts, and the common European defence policy enables it to ‘communitarize’ its security risks and advance policies of deterrence and preservation of peace. Germany’s culture of restraint, France’s proactivity and PESCO’s inclusivity are expected to create a balanced system, at least as far as the internal distribution of power is concerned. Second, there is a major difference between the European Defence Community (EDC) of the 1950s and the current system. The EDC intended to create a single standing European army (‘the European Defence Forces’) with political organs, including a parliamentary Assembly, and was conceived as a step towards creating an 232 Joint Communication from the Commission and the High Representative of the Union for Foreign Affairs and Security Policy, JOIN (2017) 41 final. 233 Council of the EU, EU Battlegroup Concept, 11624/14 EXT 1. 234 Council of the EU, EU Framework Nation Concept, 15494/15. 235 Council of the EU, EU Military Rapid Response Concept, 17036/1/14 REV 1. 236 Regulation (EU) 2016/1624 of 14 September 2016, L 251/1; see also Sergio Carrera and others, The European Border and Coast Guard – Addressing migration and asylum challenges in the Mediterranean? (CEPS 2017). 237 EP (n 221) 9 (the French text of the study is clearer on this point); Council Decision (CFSP) 2017/2315, Annex, para 12. 238 See also the flexible technological Chinese model of ‘system destruction warfare’ whose basic idea is that conflict does not take place merely between armies composed of human actors, but between ‘operational systems’: Jeffrey Engstrom, Systems Confrontation and System Destruction Warfare – How the Chinese People’s Liberation Army Seeks to Wage Modern Warfare (Rand Corp., 2018). 239 For the latter issue, see Jelena von Achenbach, ‘Im Technokraten-Panzer auf dem Weg zur Europäischen Armee’ at: .

442 Research handbook on the EU’s common foreign and security policy ultimate federal or confederal structure in Europe.240 Thus, the role of the Assembly indicated that this would be a European parliamentary army. One of the signatories of the Treaty, the then Italian Prime Minister Alcide de Gasperi, described its function as follows: ‘The European Army is not an end in itself; it is the instrument of a patriotic foreign policy. But European patriotism can develop only in a federal Europe.’241 On the contrary, the PESCO is a pillar of a system of military integration that does not affect the sovereignty of the participating states, as explicitly stated in its founding act.242 Third, the answer to the question whether it would be appropriate to legitimize PESCO through parliamentary decisions at the present stage can be derived from the previous analysis. If the parliaments of the participating states had to decide on the establishment of PESCO, they would in fact confer a much broader legitimacy to the project, unwittingly reviving federalization projects, creating unrealistic expectations and broadening the chasm between MS with different approaches, possibly leading the process into an impasse. Obviously, nothing prohibits national parliaments from debating PESCO, or from deciding on participation in military operations in the future, according to their constitutional requirements, but there would be little to decide at the current stage. Overall, it may be a rather surprising conclusion that once a certain threshold of military integration is achieved, the corresponding level of cooperation among the MS may be relatively autonomous from negative developments in other Union policies. PESCO opens a ‘smart path’ towards military integration on an intergovernmental level, which is firmly based on a stable minilateral ‘core’ and can enforce the system’s integrity, despite its open and voluntary character. The network of cooperation would create expectations, rewards and reputational risks that are conducive to its further evolution, which is necessary in view of the long-term character of the geopolitical risks affecting the EU. Nonetheless, time will show whether the political will exists for the realization of the full potential of the Treaties in the area of security and defence.

7. EUROPE IN THE WORLD The EU is a post-national geopolitical actor whose identity and foreign policy are grounded on liberal-democratic values and principles. Among the Union’s first priorities are the preservation of its independence, integrity and security, as well as the security of its citizens. Moreover, the Union safeguards its values and its fundamental interests, as well as the rule of law, human rights and good governance. The Union’s liberal identity is occasionally in tension, but not outright opposition, to realism. Liberalism is not a unitary doctrine but has many faces, enabling variable approaches to threats. The distinction between individual rights and expectations and the rule of law 240 See, for instance, Arts 9 and 38 of the Treaty Constituting the European Defence Community of 27 May 1952; see the text in European Defense Community Treaty, US Senate, 82nd Congress 2nd Session, Washington, 1952, 167–251. 241 Monnet (n 15) 382. 242 Council Decision (CFSP) 2017/2315, Preamble, para 4; Annex I, para 7.

The European Union as post-national realist power 443 marks the main dividing line within liberalism, even though these two pillars are generally complementary. The massive crossing of the Union’s external and internal borders by unauthorized migrants in 2015 led to the collapse of the Dublin system and the temporary suspension of the Schengen system between some Member States. It therefore constituted a breakdown of fundamental elements of the EU governance system. After the initial shock, the Union adopted a more formalist and restrictive approach to rights and has focused more on restoring order and the rule of law at its external borders and internally (relocation). The prioritization of the maintenance of order over the ‘welcome culture’ was necessary not least because a ‘cohesive system of governance’ is one of the pillars of geopolitical power.243 This is the link between rule-of-law liberalism and realism. Because of its post-national character and the complexity of its decision-making processes in matters of security, the Union cannot become ‘realist’ in the same way that other major powers can, for instance, Russia. Despite its territorial vulnerability, the Union and its Franco-German core do not have strategic anxieties of the depth of Russia’s fear of encirclement by enemy powers.244 Furthermore, as a liberal power, the Union is also different from the US, which considers itself as ‘the indispensable nation’.245 Europe’s liberal realism finds inspiration in the heritage of European diplomacy, as adapted in the contemporary post-national context. The Union and the MS have to manage complex threats and risks arising in their geopolitical environment, but do not face a direct danger of a large-scale continental war. These threats are rooted in the delays and distortions in the modernization of the above regions. The implications of the totalitarian governance of the Soviet period in Eurasia and the structural obstacles to modernity imposed by the Islamic law in the MENA region have created a geopolitical environment with long-term challenges for the EU. The Union cannot ‘resolve’ these challenges, but can manage them effectively. Indeed, the Treaties offer the appropriate governance instruments. The Union may choose among a variety of paths of action, including multilateralism, minilateralism and unilateralism. Among them, minilateralism is the path that promises most in matters of security and defence. The reason is that the structure of power in the European system makes the Franco-German synergy the centrepiece of the EU security system. The recent establishment of PESCO may accelerate this evolution and facilitate the creation of a European Defence Community. Minilateralism can create variable centres of gravity supported by France and Germany that enable flexible decisionmaking and reaction to crises. Europe’s ‘cached unilateralism’ can raise the Union’s profile, as long as the EU foreign policy provides good arguments that the European interest is also the interest of many other states across the world and ultimately, of the 243

Saul Bernard Cohen, Geopolitics – The Geography of International Relations (3rd edn, Rowman and Littlefield 2015) 2. See also the Commission Communication on ‘A Europe that delivers: Institutional options for making the European Union’s work more efficient’ COM(2018) 95 final. 244 See ‘Surrounding Russia – Russian worries about Western encirclement are premature’ The Economist (London, 15 June 2006); John Mearsheimer, ‘Why the Ukraine Crisis is the West’s Fault – The Liberal Delusions that Provoked Putin’ (2014) 93(5) Foreign Affairs 77. 245 James Scott, ‘The United States – The Contemporary World’s Indispensable Nation?’ in BJC McKercher (ed.), Routledge Handbook of Diplomacy and Statecraft (2011).

444 Research handbook on the EU’s common foreign and security policy international community. Internal minilateralism and external cached unilateralism may combine to maximize the Union’s presence. The migration crisis exposed the weakness and strengths of the Union governance. The Court of Justice has played an important role here. Its case-law in 2017 was characterized by a clear acknowledgement of realism, acquiescence to intergovernmental regulatory arrangements, and a relative shift from the individual-rightsand-expectations perspective to the rule-of-law perspective. The Court also interpreted the TFEU rules on provisional measures and the principle of solidarity in a flexible way in order to enable the Union to have an effective response in emergencies. The common thread of the three decisions of the Court discussed above is the facilitation of governance in the management of mass migration. Along with NATO, the EU constitutes one of the two main security providers in the regional setting but should employ its resources and power potential in an optimal manner to achieve its goals with minimum cost. It should also maintain its universalist vision because this is a prerequisite for an appealing actor in international relations. Global burden-sharing and primary protection of refugees in their neighbourhood and geopolitical space would combine universal values with the European interest but the Union has not taken so far concrete steps on the first pillar of such a policy. Nietzsche would have no difficulties in recognizing the unsettling dilemmas of contemporary Europe. If his ‘eternal return’ were realized, he could relive his life in our time without regrets. Perhaps he would need some training and advice on the technicalities of EU law, but, otherwise, he would resume the critique of post-national Europe he had already started in the era of Kaiserreich. In our risk-ridden neoHobbesian world, he would agree with August Bebel, warning in 1911 of the risk of a catastrophic war, that Europe should do all it can to preserve peace and avoid the ‘great Kladderadatsch’.246

246

Wolfgang Mommsen, Großmachtstellung und Weltpolitik (1870–1914) – Die Außenpolitik des Deutschen Reiches (Propyläen 1993) 225–226. The term means chaos, confusion, tohubohu, see Duden online, available at: .

20. Too much, too little, too late? Reflections on law and ethics in the EU’s foreign policy Jan Klabbers

1. INTRODUCTION When asked to reflect on whether there might be too much law in the foreign policies of the European Union (CFSP/CSDP), several hypotheses can possibly be developed, and several preliminary questions need to be asked.1 Whenever there is talk of ‘too much’, or ‘too little’ or, for that matter, ‘just enough’, the obvious follow-up question should be: too much, or too little, for what purpose exactly? From which perspective? From whose point of view? The claim that there might be too much law presupposes that law serves a particular purpose, which would seemingly be better served if there were a little less law; the claim that there might be too little law, conversely, suggests that for that particular purpose, there should perhaps be more law, not less. And all this, it should be noted, leaves unmentioned the question whether the law concerned (of which there is too much, or too little) is actually any good, either instrumentally (in that it helps serve the purpose it is supposed to serve) or normatively (in that it is the sort of law we might also welcome on moral grounds). In the specific context of the EU, several additional questions need to be asked. Is the amount of law just right for internal purposes, or should the focus rest on external issues? In the former case, one might think of the law serving the purpose of balancing the positions of the Member States and the EU’s institutions in some way or another: the right amount of law then is the amount that keeps the chosen balance, well, in balance, so to speak. What is just the right amount of law for internal purposes, however, may be far too much law to allow for swift and decisive action externally. Thus, commentators might complain about the amount of red tape required to get any action under way: surely, a foreign policy incident requiring quick action by the EU might not be best served by an overdose of law, so the argument could go. Even this does not exhaust the possibilities, though: while the EU might want swift action on some level, the world at large might be better off if the EU is forced, through legal inhibitors, to act slowly: one would not want to add another hot-headed entity to the circus of international politics, populated as it is these days by macho men with 1 My approach differs from De Witte’s a decade ago, addressing the question whether there would be too much constitutional law. It is fair to say my approach situates itself on a different level of abstraction. See Bruno de Witte, ‘Too Much Constitutional Law in the European Union’s Foreign Relations?’ in Marise Cremona and Bruno de Witte (eds), EU Foreign Relations Law (Hart Publishing 2008).

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446 Research handbook on the EU’s common foreign and security policy short fuses and long twitter accounts. A cool head might be preferable, and a forced waiting period, imposed by law, might be just the way to force heads to cool off.2 And then there is the question of alternatives. Surely, consultation of Member States will be required, whether the obligation to consult is legal in nature or whether it is considered to be part of some extra-legal gentlemen’s agreement, or whether considered to be politically prudent, or considered to contribute to an action’s legitimacy. Where the obligation is legal in nature one can possibly complain about there being too much law, but not in the other cases – if there is no law involved, then there cannot be too much law, but that does not automatically entail the absence of rules generaliter. In what follows, I will discuss two incidents where, one might say, the amount of law is somehow at issue, mindful of the above-mentioned caveats. The first addresses the curious position of the staff of the EU Police Mission in Bosnia and Herzegovina; the second takes a closer look at the EU’s strained relationship with Ukraine. The point I aim to make is that sometimes it is not about too much law or too little law or just enough law; sometimes things are more about the mindset of the relevant actors than about any relevant rules. Important as rules are (legal or otherwise), they are, eventually, better seen as signposts than as absolutes. They offer guidance and ought to be followed, but not blindly or at all costs.3 Indeed, rules cannot even be followed slavishly, in that it takes practical wisdom to figure out whether some rule or other applies, and it takes practical wisdom to apply it wisely.4 Or, as the song goes, ‘It ain’t what you do, it’s the way that you do it’. The two incidents I aim to discuss form illustrations or anecdotal evidence (‘anecdata’) of that particular proposition, and will be followed by reflections on normative pluralism and a more philosophical elaboration on the place of practical wisdom – what Aristotle referred to as phronesis – in all matters legal.

2. THE EU POLICE MISSION IN BOSNIA AND MS H Monty Python, if it still existed, would have a field day with the following scenario. The EU operates a mission in Bosnia and Herzegovina to spread the rule of law to this conflict-ridden and contested piece of Europe. The rule of law is a notoriously indeterminate concept but is often thought to include as a minimum basic human rights protection, including such things as access to justice.5 And indeed, this is how the EU usually presents the rule of law to outsiders: part of the rule of law, as most have agreed 2 The thought is, of course, far from original: it inspired Article 12 of the League of Nations Covenant, institutionalizing a cooling-off period in case of belligerent sentiments. 3 This generally builds on Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (Clarendon Press 1991). 4 On legal reasoning generally, see Friedrich V Kratochwil, Rules, Norms, and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (CUP 1989). 5 For an overview, see Brian Tamanaha, On the Rule of Law: History, Politics, Theory (CUP 2004); see also Leonardo Morlino and Gianluigi Palombella (eds), Rule of Law and Democracy: Inquiries into Internal and External Issues (Brill 2010).

Too much, too little, too late? 447 since Weber,6 involves the possibility for those who feel their rights have been infringed to seize a court. Enter the EU. After the United Nations had been performing policing tasks in war-torn Bosnia and Herzegovina for a number of years following the Yugoslav war, its role was taken over by the EU in 2002, by means of the European Union Police Mission (EUPM), set up on the basis of a Council Joint Action which itself was based on Articles 28 and 43(2) of the Treaty establishing the European Union (TEU). All this was part of the much-heralded CFSP – the EU’s bid to be taken seriously on the international scene as a power to be reckoned with, and one that prefers carrots over sticks, soft power over hard power. Among the values that this global power seeks to advance are democracy and free trade, but also the rule of law and fundamental human rights – Article 21 TEU provides a list of the principles and values Europe holds dear and which shall guide its external activities. Indeed, the EUPM was considered part of a ‘broader rule of law approach’ in Bosnia and Herzegovina, supporting local law enforcement agencies in the fight against organized crime and corruption. Missions such as EUPM are often planned to be of limited duration and demand a special kind of expertise, not always readily available within the organization responsible; as a result, often they work with people seconded by either their home governments or one of the EU institutions. So too in this case. Ms H was an Italian magistrate, seconded by the Italian government to work for a period of time for EUPM. As it happened, she was first stationed, from late 2008, as a Chief Legal Officer in Sarajevo but, from April 2010 onwards, redeployed as Criminal Justice Adviser – Prosecutor in the regional EUPM office in Banja Luka. This she took to be a demotion, and she lodged a complaint with the Italian authorities: since she was seconded, it would seem that she was working under Italian command. Italy duly suspended the decision to redeploy her, but the Head of Mission confirmed the decision, claiming a need for prosecutorial advice in the Banja Luka office. Thereupon, Ms H went to court both in Italy and in the EU, and, in the context of the latter, requested that the General Court annul the decision to redeploy her and award damages. The General Court denied jurisdiction and held that the case was inadmissible,7 but on appeal the CJEU disagreed, finding that the case was at least partly within the jurisdiction of the EU courts. It eventually referred the matter back to the General Court.8 The case provides a lovely illustration of what public administration scholars refer to as the problem of the many hands.9 EUPM consists partly of its own staff, recruited on 6 While the term rule of law is often held to have been coined by Dicey in the late 19th century, it is indelibly associated with the great legal sociologist Max Weber, Economy and Society (University of California Press 1978). The important point to note is that for Weber, it mattered little what the law said, as long as there was law; the association between the rule of law and quintessential liberal values came later and owes much to Friedrich A Hayek, The Road to Serfdom (first published 1944, Routledge 2001). 7 Case T-271/10 H v Council and Others ECLI:EU:T:2014:702. 8 Case C-455/14 P H v Council and Others ECLI:EU:C:2016:569. 9 The classic treatment is by Mark Bovens, The Quest for Responsibility: Accountability and Citizenship in Complex Organisations (CUP 1998). Passing the buck is not uncommon with (other) international offices either: see Judgment No. 2867 of the Administrative Tribunal of the

448 Research handbook on the EU’s common foreign and security policy a contractual basis in order to cater for specific needs. Mostly, however, it consists of staff that are seconded, either from the EU institutions, or (as in the case of Ms H) from Member States. According to the relevant Council Decision 2001/264/EC, the seconding entity shall be the one answering possible claims, with the obvious result that the possibility might arise that different individuals working for the same entity (for instance, EUPM) could be subject to different rules and, what is more, subject to different regimes relating to judicial remedies. In extremis, it might even be the case that some would have access to the EU courts while their colleague at the opposite desk would be denied such access. This, clearly, would be undesirable so the Council launched the simple argument that no one should have access to the EU courts. In the Council’s view, decisions such as the one to redeploy Ms H were operational CFSP decisions, and as such by definition excluded from the jurisdiction of the EU courts.10 The General Court, active at first instance, did not quite agree but did find that it lacked jurisdiction.11 Illustrating the wonderful artificiality that legal thinking may sometimes take on, the General Court argued that while the deployment decision was taken by the Head of Mission, the fact that Ms H was seconded by Italy meant that the decision could be attributed to Italy and that any relief would have to be sought before the Italian courts. This was different from the situation concerning those seconded by EU institutions. Accordingly, the General Court did not (unlike the Council) deny jurisdiction altogether but it did deny jurisdiction for those seconded by national authorities. Moreover, it made the point that none of this would result in the absence of a judicial remedy. After all, Ms H would have access to Italy’s courts! This would come with an uncomfortable drawback, though – one that the General Court itself referred to, but failed to think through. Should Italy’s courts decide that the deployment decision had been problematic, it was for Italy’s courts to decide what to do and ‘draw the appropriate conclusions with respect to the legality, or even the very existence, of the contested decisions’.12 The phrasing suggests that Italy might be in a position to invalidate decisions taken by the Head of Mission of EUPM – quite a far-reaching claim with the potential to fragment the management of the mission and, more fundamentally, to break through the unity of EU law – it was therefore never likely that the ECJ would reach the same result. And it did not. Instead, it adopted a different frame. Contrary to the General Court, it did not view the contested decision as a matter relating to secondment, but rather as a decision relating to staff management, regardless of the question whether the staff International Labour Organization upon a Complaint Filed Against the International Fund for Agricultural Development, Advisory Opinion (2012) ICJ Reports 10. 10 A more subtle variation of the argument holds that jurisdiction of the EU courts over the CFSP is limited in accordance with the intentions of the Member States (Masters of the Treaties, after all) and reflecting the special position of the CFSP in the EU’s legal order. Expanding the jurisdiction of the Court requires legal justification and not merely an integrationist or activist Court. For such an argument, see Panos Koutrakos, ‘Judicial Review in the EU’s Common Foreign and Security Policy’ (2018) 67 ICLQ 1. 11 H v Council and Others (n 7). 12 ibid, para 53.

Too much, too little, too late? 449 were directly hired by EUPM or by whom they were seconded, and regardless of the fact that the mission generally fell within the ambit of the CFSP. As a result, the deployment decision fell within the regular scope of reviewable decisions, as enumerated in Article 263 TFEU and (with respect to non-contractual liability) Article 268 TFEU. The one thing the Court denied was that the Commission was in any way involved, but it accepted jurisdiction with respect to the role of the Council as it was the Council that was involved in the setting-up and the running of EUPM. The Court’s solution also had the pleasant side-effect that, eventually, awkward questions about access to judicial remedies could be circumvented. After all, Article 47 of the EU’s very own Charter on Fundamental Rights guarantees a right to an effective remedy for everyone whose rights are supposed to be guaranteed by EU law, and Ms H was quick to rely on it.13 It would be ironic, to say the least, if such a right were denied to the people actively aiming to instil the same right in entities outside the EU, such as Bosnia and Herzegovina.14 So, all’s well that ends well, eventually. Ms H received access to justice, and the Court of Justice could claim jurisdiction over a little part of CFSP activities, bringing this little part under the umbrella of the EU rather than leaving it to the more inter-governmentally oriented CFSP itself. That said, it remains mystifying that people in positions of power can even think of exporting the rule of law while unblinkingly ignoring it at home – the very fact that Ms H had to go to court, and subsequently had to appeal, suggests that something is not quite right; the very fact of staff members of the same mission being treated differently depending on their original employment confirms that hunch. The story might suggest an over-reliance on rules and an under-appreciation of the old wisdom that one should not do unto others what one does not want done unto oneself.

3. UKRAINE AND THE LAWS OF GOOD INTENTIONS If the case of Ms H pits several legal orders against each other, the story concerning the EU’s involvement with Ukraine is more apt for characterization as a law versus ethics conflict, invoking two distinct normative orders but not two distinct legal orders.15 The broad outline goes as follows.16 13

As noted in ibid, para 30. While the Italian courts are under an obligation to give effect to the EU Charter, one wonders how keen they would be to do so with respect to an individual working for one of the EU missions, even if it concerned someone seconded by the Italian authorities. One could forgive them for thinking that the first port of call for EU employees ought to be a judicial organ of the EU, if only because local courts cannot be expected to invalidate EU decisions, whether operational or administrative. 15 On such normative conflicts generally, see Jan Klabbers and Touko Piipariinen (eds), Normative Pluralism and International Law: Exploring Global Governance (CUP 2013). 16 Methodological alarm bell: the rendition of the facts of the story owes much to Wikipedia (https://en.wikipedia.org/wiki/Ukraine%E2%80%93European_Union_relations – visited 13 July 2017). That is not ideal, but not detrimental, in that even if the facts turn out to be mistakenly rendered, the moral of the story still stands. My aim is not to write the definitive story of 14

450 Research handbook on the EU’s common foreign and security policy Since the fall of the Berlin wall, it has been a priority of the EU’s foreign policy to create closer ties with the now-independent parts of the former Soviet Union, as well as the latter’s satellite states. And the policy has met with great success, at least in terms of creating closer ties. Former members of the enemy camp, such as Poland, Hungary, Romania and Bulgaria, have all joined the EU, and with several others, including Russia itself, some kind of partnership agreement has been concluded. Part of this has been captured in the adoption and prioritization of the EU’s neighbourhood policy, following the earlier adoption of Agenda 2000.17 One of the states that the EU is keen on establishing closer ties with is Ukraine. This is for a variety of reasons, some perhaps bordering on cynicism. There are the usual geopolitical reasons, with Ukraine bordering several EU Member States. There are the usual strategic reasons, with Ukraine offering one route for the transportation of Russian natural gas to European cities. And there might be the added benefit of pestering Russia a little: since Russia tends to view Ukraine as part of its sphere of influence, capturing Ukraine would represent quite a coup.18 For a decade, a partnership agreement was in place, and Ukraine repeatedly expressed a desire to move towards an association with the EU, widely viewed (although not by the EU itself) as a prelude for eventual full membership. After the partnership agreement had expired a new association agreement had been prepared (though without guarantees about future membership), but the EU started to dither and cited human rights concerns as a reason not to go full speed ahead. This was inspired by the imprisonment in Ukraine of former Prime Minister Yulia Tymoshenko and other political leaders, with their imprisonment signalling a dwindling respect for human rights, democracy and the rule of law. That was no doubt a fair assessment and it raised the classic problem of the dirty hands in one of its many manifestations.19 Should a political actor engage in doing something of a dubious ethical nature if doing so serves, in his or her opinion, the common good? In this case, starkly put: should the conclusion of an association agreement, meant to be of mutual interest and benefit, be suspended over the plight of a few individuals? Of course, facts are never quite what they seem. The ‘few individuals’ at issue here include political leaders, whose symbolic value is huge. Put differently and without being cynical, it is not at all self-evident that the EU would have adopted a similar course of action if the political prisoners had been ordinary people, a few factory workers perhaps, or a handful of bus drivers. It was, arguably, not the imprisonment as such, but the identity of those imprisoned, which spurred the EU to use the Association Agreement as the carrot to dangle in front of Ukraine’s nose. EU–Ukraine relations (in which case I should not rely as much on Wikipedia); my aim, instead, is to make a point on good intentions and their effects. 17 For early analysis, see Marise Cremona, ‘The European Neighbourhood Policy: More Than a Partnership?’ in Marise Cremona (ed.), Developments in EU External Relations Law (OUP 2008). 18 Note that Russia was invited to join the European Neighbourhood Policy, but declined. 19 The seminal study is by Michael Walzer, ‘Political Action: The Problem of Dirty Hands’ (1973) 2 Philosophy and Public Affairs 160; see also Stuart Hampshire (ed.), Public and Private Morality (CUP 1978).

Too much, too little, too late? 451 It may also be of relevance whence this upsurge in ethical thinking came. Again, without being cynical, Europe’s leaders are perfectly capable of ignoring or massaging requests stemming from fringe groups, or even from the relevant non-governmental organizations (think of Amnesty International, for example). In this case, however, the pressure was reportedly exerted by the European People’s Party, the network of centre-right political parties that governs many of the EU Member States and also occupies a prominent position in the Commission. And that is a source of discontent that is difficult to ignore. And then there are the expected benefits of the agreement itself. An important strand of political philosophy suggests that an improving economic situation, especially in conjunction with free trade and liberal markets, will generally also improve the chances for human rights. In other words, it is often posited that free trade is not just good for the economy (assuming it is and ignoring distributive questions), but has a radiating effect on other matters. In such a constellation, one might have expected strong support for the Association Agreement precisely with a view to stimulating human rights. So, essentially, the politics configured to place ethics at the centre of the debate or, if you will, pit ethics against law: Ukraine will become an association partner, based on a legally binding treaty commitment, if and when it shows respect for European values related to human rights, democracy and the rule of law. It is important to see that the ethical argument could work in two directions though: halting the conclusion could be ethically motivated (‘How can one do business, even associate oneself, with a state that imprisons political opposition?’), but so could continuing with the agreement (‘Should the expected improvement in general human rights be held hostage for a handful of individuals, no matter how prominent?’). The first line of reasoning follows Kantian thought, according to which one should not depart from one’s duties (in this case, to insist on respect for the rights of Tymoshenko and others), regardless of the consequences. The second approach, usually associated with Bentham and others, is rather consequentialist in nature, suggesting that a small sacrifice here may well lead to overall beneficial results.20 What further complicated matters, though, and was insufficiently recognized by either of the two ethical groups, was that Ukraine borders Russia, contains a large Russian-speaking population, and includes territory that to Russia was of considerable value in the form of Crimea, with its port of Sevastopol. And, as is well known by now, the moment the EU started to dither it created a political vacuum in Ukraine, and Russia’s leader, Vladimir Putin, was keen enough to seize the moment, catching many observers by surprise. Hence, the net result of the EU’s dithering, so it may be claimed, is the annexation of Crimea by Russia – the road to hell, as they say, tends to be paved with good intentions.21 For deontologists, Kantian or otherwise, such an approach poses no specific methodological problems: one simply needs to do one’s duty and follow such rules as 20 The leading consequentialist these days is probably Peter Singer, who, rare among ethicists, has also applied his thoughts to international affairs. See Peter Singer, One World: The Ethics of Globalization (2nd edn, Yale University Press 2004). 21 For analysis of the legality of Russia’s action, see Thomas D Grant, ‘Annexation of Crimea’ (2015) 109 American Journal of International Law 68.

452 Research handbook on the EU’s common foreign and security policy are applicable – although it may become difficult to figure out which rules are applicable, which duties are in existence, and how to prioritize among them if several different and possibly conflicting rules are applicable. The consequentialist, however, is faced with additional methodological problems, for how can one determine which factors go into the equation to find out what the greatest benefit for the greatest number is? In other words, for a consequentialist analysis to be persuasive, the analyst must ensure that all relevant factors are included, and this is a difficult, perhaps impossible, task. The Ukraine agreement does not merely involve the human rights of some prominent individuals and the assumed economic benefits of the agreement accruing to Ukrainians and the EU’s citizens – it must also factor in geopolitical considerations, the likelihood of Russia stepping in, the potential costs of a split Ukraine, and so on. On such a reasoning, it may be plausible to claim that there is little scope for consequentialism in international affairs since the calculus is simply too complicated, making it impossible to determine with any degree of accuracy what the greatest good for the greatest number will be.22

4. PLURALISM (OF VARIOUS KINDS) Both episodes have in common that they pit different normative systems against each other. In the case of Ms H, it concerns a conflict concerning the appropriate forum against the background of a possible conflict between two legal orders (the EU legal order versus Italy’s legal order), while in the case of Ukraine, the discussion is better seen as two contending ethical conflicts or, perhaps, one of law versus ethics. Either way, both prompt questions as to how to act in such circumstances, and as such, both are inescapably in tune with the modern condition. After all, decision-making rarely, if ever, takes place in a normative vacuum where the decision-maker can simply apply whatever his (usually ‘his’) ivory tower teachings tell him to do – the ivory tower does not exist or, more accurately perhaps, is a rather useless place to dwell in. All political decision-making, save perhaps in the rarest of circumstances, is situational, or contextual. Decision-makers rarely have the luxury to sit back and think things through; instead, usually, they have to act under time pressure; they have to act without having all possible relevant information at their fingertips; and except in the crudest of dictatorships, they usually also have to take different constituencies into account.23 As Jackson forcefully puts it: ‘Human conduct is situational by definition.’24 Things would be helped if there were only a single rule or guideline applicable to the 22 Philosophers insist that calculability is an important aspect of consequentialism, hence, if calculations are impossible, consequentialism can have little traction – or else quickly slides into rough guidelines (‘Beware Russia’), without much actual analysis. The point on calculability is emphasized by, e.g., Bernard Williams, Morality: An Introduction to Ethics (first published 1972, Canto 1993). 23 See, e.g., Friedrich V Kratochwil, The Status of Law in World Society: Meditations on the Role and Rule of Law (CUP 2014); Raymond Geuss, Philosophy and Real Politics (Princeton University Press 2008). 24 See Robert Jackson, The Global Covenant: Human Conduct in a World of States (OUP 2000) 143.

Too much, too little, too late? 453 facts before them, but alas, this is a rare luxury too. Typically, decision-makers are confronted with the situation that somewhere in their normative universe, there exists a rule that tells them to do X; while elsewhere in that same universe, a different rule may tell them to do Y, or perhaps even prohibit them from doing X. In addition, it is not always clear what exact situation they find themselves in: even if there were a single rule applicable, they would first need to determine that their situation calls for this one rule to be applied – and that determination is itself an act of political judgement which is not, and cannot be, guided by the rule itself.25 When it comes to conflicts between rules stemming from two different legal systems, the notion of inter-legality may prove a useful explanatory framework – without being able to resolve the decision-makers’ dilemma: its value is heuristic rather than normative. The source of the idea is, in all likelihood, a lecture by renowned legal sociologist Boaventura de Sousa Santos, held in 1987, where he launched the notion of inter-legality in distinction to the more familiar legal pluralism that was already widely accepted by legal anthropologists.26 Legal pluralism, as usually defined, sees to the coexistence in one and the same legal space of two distinct legal orders based in two distinct but overlapping political communities, e.g. state law and tribal customary law. By contrast, so Santos suggested, inter-legality refers to competition (or cooperation) between legal norms emanating from different legal spaces but (at least prima facie) applicable to the same set of circumstances. A prime example – though not foreseen by Santos – is the rather well-known plight of Mr Kadi, confronted, on the one hand, with frozen accounts at the behest of UN law, but claiming, on the other hand, human rights protection based on other legal instruments and the TEU. As is well known, the ECJ eventually opted for application of the latter,27 but doing so was dictated by choice rather than necessity: it could just as plausibly (or even more plausibly) have argued that since UN law prevails over other law, therefore UN law would have to be applied, even to the detriment of the EU’s constitutional order. The hallmark of inter-legality then, as Santos (very briefly) developed it, is that with conflicts of this kind, where many possible decisions may be plausible within their own four corners but none forcefully presents itself, the ultimate decision rests on the choice of the decision-maker – it can no longer be seen (if it ever could) as the inevitable result of the application of a legal rule. And this circumstance

25

Kratochwil (n 23). The lecture was entitled ‘Law: A Map of Misreading’, and is reproduced in Boaventura de Sousa Santos, Toward a New Legal Common Sense (2nd edn, Butterworths 2002), with the brief remarks on inter-legality appearing at 437–438. Comparativist Twining once or twice referred to inter-legality, but did not develop it much further. See, e.g., William Twining, Globalisation and Legal Theory (Butterworths 2000) 230; and William Twining, ‘Diffusion and Globalization Discourse’ (2006) 47 Harvard International Law Journal 507. More detail is offered by Andreas Fischer-Lescano and Gunther Teubner, Regime-Kollisionen: Zur Fragmentierung des globalen Rechts (Suhrkamp 2006) 34–41. 27 See Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat v Council and Commission, ECLI:EU:C:2008:461. 26

454 Research handbook on the EU’s common foreign and security policy entails that the precise qualities, epistemological and otherwise, of those decisionmakers are of relevance.28 Much the same applies to the situation where various ethical norms are pitted against each other, or where law conflicts with other normative orders – think of social mores, cultural norms, standards of self-regulation, et cetera.29 Here too, it may well be problematic to apply one rule at the expense of another in the absence of a specific meta-rule: who is to say that in a conflict between an ethical standard and a legal rule, the ethical standard shall prevail? Or whether in case of a conflict involving social mores (think of so-called honour killings) and criminal law, the former shall prevail? The point is that there is no automatic ranking of normative orders, and that such ranking would, in all likelihood, either be impossible or at least occasionally undesirable. In some sense, law could make a strong claim to normative supremacy – it has a lot going for it. It can be relatively clear, and it can be democratically made, with input, in principle, of all affected actors – or at least their representatives.30 Thus, one might argue that law ought to be supreme over other normative orders, but there are a few snakes in the grass. One is, that while law in democracies can be democratically made, not all states are democracies, and that even among democracies several factors may exist which would affect the ideal nature of the law. Think, for instance, of capture of the law-making process by special interest groups, or think of election campaign financing rules, or the rules relating to the creation of voter districts, all of which can and are manipulated so as to dilute what could otherwise be a proper democracy. And think additionally of the unpleasant situation that some of the world’s most problematic political leaders have been elected through ostensibly democratic process; in recent years, one can think of Putin, Erdogan and Trump. On the other hand, the contents of other normative orders cannot be intentionally created, or even democratically – there is no intentional constitutive process for the creation or amendment of ethical imperatives, for example, whereas many other norms (religious norms come to mind) are typically decreed from above, in more or less authoritarian – or at least authorial – fashion. It would seem, all in all, that there are no a priori reasons to prefer the commandments of one normative order over those of others, which in effect boils down to saying that it often boils down to a matter of choice and preference for the political actor concerned.

5. PRACTICAL WISDOM Indeed, the political actor often has many choices to make, choices where the law can only offer limited guidance. This is ironic, of course: one of the functions of law is precisely to release us from having to make particular choices by routinizing standard 28 See further Jan Klabbers and Gianluigi Palombella (eds), Inter-legality (CUP, forthcoming). 29 See generally Klabbers and Piipariinen (eds) (n 15). 30 See Jan Klabbers, ‘Law-making and Constitutionalism’ in Jan Klabbers, Anne Peters and Geir Ulfstein, The Constitutionalization of International Law (OUP 2009).

Too much, too little, too late? 455 behaviour that is deemed appropriate to the circumstances. The speed limit is the most obvious example: following the speed limit on any stretch of road prevents us from having to make calculations as to what the appropriate speed would be given the curvature of the road, the normal weather conditions, the quality of the asphalt or concrete, et cetera.31 Yet, in political decision-making, it may not always work this way. As noted earlier, choice comes in at several moments. Choice comes in when there are different norms applicable to the same configuration of events, and choice comes in when trying to frame what the issue is about. The situation of Ms H can be seen as one that is largely internal to the Italian civil service; indeed, this is how the General Court perceived the matter. It can also be described as a matter of the EU’s foreign policy – this is, in a nutshell, how the Council saw the matter. And it can be seen as a matter of EU administration, mindful of the circumstance that even if Ms H was seconded by Italy, and even if she was nominally involved in a foreign policy operation, she was nonetheless working to represent the EU and in a rule-of-law mission at that. Likewise, the botched agreement with Ukraine can be seen as a commendable exercise of ethics on the part of the EU, but can also be seen as a manifestation of conditionality, or simply ineffectual geopolitical manoeuvring. The point is that in both examples, there is no meta-rule which can decide which viewpoint is the correct one. On the plight of Ms H, there is no meta-rule to decide whether the viewpoint of the General Court, the Council or the CJEU, is correct: all three are plausible within their own four corners. And on Ukraine, likewise, there is no meta-rule to tell us whether to insist on an unblemished human rights record for our partners, or whether cooperation should help assist in achieving such a record, or even whether it is desirable to mingle in the internal affairs of a would-be partner state to the extent the EU did. These are not questions that can be answered in a general manner as they involve choice and therewith judgment on the part of the responsible political actor. And such judgment cannot be based on the application of a political algorithm (neither ‘When finding trading partners, always insist on unblemished human rights records’ nor ‘When finding trading partners, ignore their human rights records’) for the context will always be different and, accordingly, judgment may differ from one case to the next. There is nothing per se wrong with this: Aristotle recognized 2,500 years ago that politics is contextual, and there is no particular reason to presume that in the intervening millennia politics has ceased to be contextual. The media, of course, may look for inconsistencies as these make for a good story but even the most self-righteous reporter will have to acknowledge that trading with Ukraine, located as it is next to Russia, carries different risks than does trading with, say, Nicaragua. And even the most self-righteous reporter will accept that a mission devoted to promoting the rule of law can ill afford to deprive its own staff members of access to justice. Importantly though, while Aristotle accepted the contextual nature of political action, he did not let this slide into a free-for-all, and neither did he succumb to the pessimism of philosophical situationalism (this suggests that all action is situational, and actors 31

See generally Schauer (n 3).

456 Research handbook on the EU’s common foreign and security policy rarely, if ever, display consistent behaviour across situations32). Instead, Aristotle developed a concise set of standards but, rather than focusing on the quality (ethical or otherwise) of concrete political acts, his framework revolved around the quality of the political actor. For Aristotle, man was a political animal who could mostly excel in public life, and the goal of whose life was to reach a flourishing existence (eudaimonia).33 To this end, the individual would be well advised to develop a number of virtues, as these would enable him to flourish. Thus, honesty, courage and humility were considered virtues – among many others – with two additional virtues being of prime importance. On the one hand, there was the virtue of justice, bringing the other virtues together. On the other hand, and of particular relevance in the present context, there was the virtue of practical wisdom: phronesis, as Aristotle referred to it, or prudentia, as Aquinas latinized it.34 Practical wisdom is a philosophically slippery concept, to be distinguished on the one hand from science and wisdom, but on the other also from mere technical competence as well as intuition.35 Moreover, it has been suggested that to insist on phronesis means that virtuous action will often be limited to an elite of phronemoi: try as we might to be humble and courageous, we can only manage to be called virtuous if we are also blessed with practical wisdom.36 Others have defused this by suggesting that acting on virtue is like practising skills, and within reach for practically anyone who can be considered a citizen.37 Either way, what is clear is that phronesis involves the capacity to deliberate, reason and take action. It is this intellectual virtue that allows us to recognize facts and situations and think through their consequences. In terms of the examples used: it is phronesis which helps us understand that being tough on Ukraine might create an opening for Russia to step in; it is phronesis that helps us to understand that the situation of Ms H is not best seen as an Italian administrative affair, or exclusively as a matter of foreign policy. Precisely at the vanishing point of our rules and commandments, where these are no longer capable of offering guidance, is where the virtues come in – at least, this is one of the points where they come in. There are other points as well – think only of making proper use of existing rules, rather than engaging in an abus de droit. But at the very least, the virtues should assist us in distinguishing different situations, and reaching for action that is based on justice rather than opportunism – and justice is the defining claim made by all legal systems.38 32 This situationalism invokes psychological studies in support but can be countered by other psychological studies. See, e.g., Nancy E Snow, Virtue as Social Intelligence (Routledge 2010) and Nancy E Snow (ed.), Cultivating Virtue: Perspectives from Philosophy, Theology, and Psychology (OUP 2015). 33 A useful introduction is Alan Ryan, On Aristotle: Saving Politics from Philosophy (Liveright 2012). 34 See in particular Book VI of Aristotle, Ethics (Thomson tr, Penguin 1976). 35 Some of the difficulties are discussed in Paula Gottlieb, The Virtue of Aristotle’s Ethics (CUP 2009). 36 See Julia Driver, Uneasy Virtue (CUP 2001). 37 See Julia Annas, Intelligent Virtue (OUP 2011). 38 See Mortimer NS Sellers, ‘Law, Reason, and Emotion’ (unpublished paper, 2017, on file with the author).

Too much, too little, too late? 457

6. TOO MUCH LAW? The EU’s Common Foreign and Security Policy is embedded in a conglomerate of numerous rules. Many of those rules are legal rules: the CFSP is embedded, for example, in international law, both when it comes to prescriptions and proscriptions (‘Thou Shalt Not Invade’) and when it comes to the broader legal framework, such as represented by notions of jurisdiction or responsibility. It is not for the EU to single-handedly depart from international law, nor is it for the EU to insist that international law be rewritten so as to accommodate its special nature.39 Many of the other applicable legal rules are internal to the EU and aim to preserve an institutional balance that may or may not derive from an arbitrary equilibrium, valid at the moment of codification but perhaps no longer. Some may serve to protect the prerogatives of some of the institutions; others may insulate the CFSP from intrusion by some of the institutions – think, in particular, of the provisions excluding the Parliament or the Court of Justice. Moreover, the EU is also embedded in an ethical nomos. It is no good to claim that, technically, the EU is not bound to respect the norms of international humanitarian law in those conflicts where it intervenes because, well, technically, it is not a party to the Geneva Conventions and an argument can be made that existing customary international law cannot plausibly be applied to entities that are not states without taking a few further jurisprudential steps.40 Likewise, the EU should not engage in genocide or gross human rights violations, either by act or by omission.41 In addition, EU troops and police forces will carry with them their own ethical traditions and military rules, while administrators too will be influenced and steered by their own professional standards: Ms H, being a lawyer trained in Italy, will be unable to deactivate her years of training and the sense of propriety inculcated during these years, even when seconded to operations outside Italy. In other words, there is in principle an enormous number of rules and standards vying for recognition within even every single individual, let alone within multinational units such as, typically, those involved in actions coming under the CFSP. Too ask whether there is ‘too much law’ here is a bit like asking whether there is too much time in a 24-hour period. On the other hand, in a sense there is too much law. Law has the unpleasant side-effect, occasionally, of dulling our sense of the virtues, and perhaps even our sense of outrage. Put differently, the existence of a legal rule invites the evaluation of action (past or future) in light of that rule. If the speed limit indicates 50 miles per hour, our driving will be discussed in terms not of whether it was too fast per se, but whether it was too fast in light of the speed limit. This is not normally a problem but sometimes 39 For such an argument, see Delano Verwey, The European Community, the European Union and the International Law of Treaties (T.M.C. Asser Press 2004). 40 For discussion, see Jan Klabbers, ‘Sources of International Organizations’ Law: Reflections on Accountability’ in Samantha Besson and Jean d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (OUP 2017) 987–1006. 41 On the concept of omission and international institutional law, see Jan Klabbers, ‘Reflections on Role Responsibility: The Responsibility of International Organizations for Failing to Act’ (2017) 28 European Journal of International Law, 1133–1161.

458 Research handbook on the EU’s common foreign and security policy may become one: if, for example, an oil spill has taken place on the road ahead of us, 45 miles per hour may all of a sudden be much too fast, even if technically it remains within the speed limit. A more dramatic example is how the European Court of Human Rights, in 2013, came close to denying the Armenian genocide for the simple (and excruciating) reason that since the Genocide Convention had only been concluded in 1948, it seemed doubtful whether the Armenian genocide could be considered a proper genocide, notwithstanding the fact that up to one-and-a-half million people were intentionally slaughtered for reasons related to their descent. Here, analysis of the event in terms of law took over at the expense of a more commonsense or emphatic approach. Then again, maybe the problem is not that there is too much law here, but that the lawyers cling to their techne and ignore phronesis and other virtues.42

7. TO CONCLUDE It goes without saying that modern societies cannot do without rules, whether we call these law or, as is increasingly common in international affairs, think of them as norms, standards or guidelines, legally binding or otherwise authoritative and meant to influence behaviour. If rules are indeed signposts flagging desirable and commendable behaviour without having to think twice, then no society can do without them.43 On the other hand, it is also the case that rules (whether legal or otherwise) cannot prescribe the conditions for their own application in all possible scenarios, and cannot dictate their own interpretation in all possible circumstances; hence, while a sevenyear-old may be able to apply a given rule, applying it wisely takes a little more than a dictionary or an algorithm. It takes, as Aristotle put it, a certain degree of phronesis, of practical wisdom. There may be circumstances where there is too little law; there may be circumstances where there is too much law. The two examples explored above suggest that there may also be circumstances where there is too little practical wisdom. But there are unlikely to be circumstances where there is too much practical wisdom.

42

See Perincek v Switzerland (2016) 63 EHRR 6, especially the Chamber decision of 17 December 2013. I have discussed this at length in Jan Klabbers, ‘Doing Justice? Bureaucracy, the Rule of Law, and Virtue Ethics’ (2017) 6 Rivista di Filosofia del Diritto 27. 43 Some have interpreted me as suggesting that rules should be replaced by an emphasis on virtue, but such is based on a misreading of some of my work. For an example, see Inger Österdahl, ‘(International) Law!’ in Rain Liivoja and Jarna Petman (eds), International Lawmaking: Essays in Honour of Jan Klabbers (Routledge 2014) 121–135.

21. The European Union’s foreign policies: an external examination of the capabilities–expectations gap Urfan Khaliq

1. INTRODUCTION There is an assumption, widely held and often repeated, that the European Union wields substantial power in international relations. There is an equally widely held view that the Union is unable to lever its power so as to influence events in the manner it desires. Peterson, in one of the earlier works reflecting on the Union’s foreign policy, encapsulated both views neatly when he stated, ‘[t]he European Union’s enormous international power and frequent inability to wield it effectively in the pursuit of European interests surely constitutes one of the most fascinating paradoxes of the “European project”’.1 Such statements mask a multitude of questions if one is to examine just how accurate they are. Does the Union indeed wield substantial international power? Does the weight of the power exercised differ in its impact depending upon who is the target of any Union action? What is the nature of such power? What hinders the effective exercise of the power that the Union does possess? Are the limits of such power and influence particular to the Union or do such limits hinder all actors? What are ‘European’ interests? This chapter seeks to reflect on many of these broader questions. It is difficult to consider the Union’s capabilities, the expectations upon it and its actions without stepping back so as to ponder some of these wider issues. The chapter does not seek to propose a new theory of the Union as a foreign policy actor or add to the literature in that regard.2 Nor does it seek to examine the internal machinations of the Union as an external actor: that has been expertly done elsewhere in this volume. The aim here is to step back and examine the context of the power of the Union as a global actor and what it can and cannot achieve. The chapter commences by considering in broad terms the aims and objectives of the Union’s foreign policies with a focus on the CFSP. The next 1 J Peterson, ‘Introduction: The European Union as a Global Actor’ in J Peterson and H Sjursen (eds), A Common Foreign Policy for Europe? Competing Visions of the CFSP (Routledge 1998). This is the so-called ‘expectations–capabilities gap’ first referred to by C Hill, ‘The Capabilities-Expectations Gap, or Conceptualising Europe’s International Role’ (1993) 31(3) Journal of Common Market Studies 305 and see his later ‘Closing the Capabilities – Expectations Gap?’ in Peterson and Sjursen, A Common Foreign Policy (above). 2 For an overview see K Jørgensen, ‘Introduction: Research Traditions’ and ‘The Study of European Foreign Policy: Trends and Advances’ both in K Jørgensen, A Aarstad, E Drieskens, K Laatikainen and B Tonra (eds), The SAGE Handbook of European Foreign Policy (Sage Publishing 2015).

459

460 Research handbook on the EU’s common foreign and security policy section examines the nature of the Union’s power in international relations. The discussion subsequently examines the context in which the Union’s foreign policy was forged and relates this back to what is expected of it and what can be achieved. The penultimate section of the chapter considers expectations much more fully before some conclusions are drawn.

2. THE UNION’S FOREIGN POLICY OBJECTIVES The starting point for any analysis of the Union’s foreign policy objectives is the TEU. This is particularly so as the focus of this discussion is primarily the CFSP. The relevant parts of Article 3 note: 1. The Union’s aim is to promote peace, its values and the well-being of its peoples. … 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 ordering of priorities in the Treaty articles is deliberate and understandable – first and foremost the Union shall uphold and promote its values and interests and these contribute to the well-being or protection of its citizens. This is about domestic justification for external policy. References to it ‘contributing to … the protection of human rights, in particular the rights of the child, strict observance and the development of international law, including respect for the principles of the United Nations Charter’ come later and are thus subservient to values and interests and are rather malleable as objectives. Indeed there is little tangible meaning to them. The reference to ‘respect for the principles of the United Nations Charter’, for example, is noteworthy as it is deliberately worded in an imprecise enough manner to allow the Union and its Member States to justify almost all courses of action that they wish to take as being in accordance with the ‘principles’ of the UN Charter as opposed to the requirements of the Charter. Furthermore, how is the Union to uphold international law where one or more of its own Member States is complicit in or central to the perceived violation of international law? The UK’s military intervention in Iraq in 2003 would be a case in point.3 Article 21 TEU expands further on the broader objectives set out in Article 3 and there are a number of differences between the two provisions. Article 21 TEU, in part, notes: 1.

3

The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to See further below.

The European Union’s foreign policies 461 advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law. The Union shall … promote multilateral solutions to common problems, in particular in the framework of the United Nations. 2.

The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to: (a) safeguard its values, fundamental interests, security, independence and integrity; (b) consolidate and support democracy, the rule of law, human rights and the principles of international law; (c) preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter …;

… 3.

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 Union’s 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.4

Two things are particularly noteworthy. First, the Union’s action is guided by various principles; these provide a broad direction for policy but no more. Upholding democracy and the rule of law, for example, has at times proved problematic in some EU Member States such as Poland and Hungary, let alone in third states. Thus, promoting democracy is an objective that should be a consideration in the formulation of policy towards third states but is not the overriding consideration. Second, the ordering of interests in Article 21(2)(a) is the same as in Article 3, to safeguard the Union’s ‘values, fundamental interests, security, independence and integrity’. Both Articles 3 and 21 TEU also raise a broader and more fundamental point: how and to what extent, if any, do the Union’s interests and values exist independently of those of the Member States? This question will be addressed periodically below when considering how the Union gives effect to these objectives in the context of its capabilities. Beforehand, however, the discussion seeks to address more broadly the ‘power’ the Union has to pursue its objectives in foreign policy.

3. THE UNION AND POWER IN INTERNATIONAL RELATIONS Power is in some, indeed many, respects intangible but it is always contextual.5 Power can be defined in terms of A’s ability to get B to do something that B would not do otherwise.6 Keohane and Nye, in what is probably still the most important work on the 4

Emphasis added. See K Boulding, The Three Faces of Power: A General Theory (Sage Publications 2007) 15 and D Baldwin, Power and International Relations: A Conceptual Analysis (Princeton University Press 2016) 11ff. 6 R Dahl, ‘The Concept of Power’ (1957) 2(3) Behavioral Science 201. 5

462 Research handbook on the EU’s common foreign and security policy notion of power in inter-state relations, use the concepts of sensibility and vulnerability to understand power as a relation among actors.7 Sensibility refers to how quickly changes in one country bring costly change in another and how great those costly effects are. Vulnerability refers to the costs to the state after it has been affected.8 These concepts are useful for us in seeking to understand the Union as a global actor and its power. In considering the EU in its global context there are three fundamental questions that must be addressed. First, does the EU have any power?9 Second, if it does have power, how much power does it have? Third, what sort of power does the Union have in international relations? 3.1 The Union’s Power With regard to the first question, the 2016 Global Strategy for the European Union’s Foreign and Security Policy tells us that the Union wields substantial power in international relations.10 Global powers have always been considered to be states, and the Union is not a state. Spence and Batora consider that the Union is a global power as it has many of the ‘hallmarks’ of a state.11 Discussion of the capabilities of foreign policy actors has understandably always been in the context of nation states and that, whether appropriate or not, is the yardstick by which the Union seems to be considered. Nation states are widely considered to exercise their power externally, that is their foreign policy, through the so-called 3 Ds: development, diplomacy and defence.12 This categorization, while broadly useful, does not engage in the relationship between each component nor the weight attached to each one. Not every state, for example, engages in seeking to enhance the development of others. The Union and its Member States are among the most important of all global development actors. Development, however, does not cover all aspects of foreign policy which do not come within diplomacy and defence. Diplomacy is properly understood as the peaceful conduct or execution of foreign policy and so can also cover development as well as other areas such as trade.13 The capacity to engage in diplomacy is by definition a sine qua non for the existence of an entity to be recognized as a legal person, let alone as a 7

R Keohane and J Nye, Power and Interdependence (4th edn, Longman 2012) 7 and J Nye, The Future of Power (Public Affairs 2011) 3. 8 ibid. 9 For an overview of approaches in international relations, see F Andreatta and L Zambernardi, ‘The European Union as a Power’ in C Hill, M Smith and S Vanhoonacker (eds), International Relations and the European Union (3rd edn, OUP 2017) 73. 10 ‘Shared Vision, Common Action: A Stronger Europe. A Global Strategy for the European Union’s Foreign and Security Policy’ (European External Action Service 2016).The exact legal status of this document is unclear. It was agreed to by the European Council meeting of 25 and 26 June 2015, EUCO 22/15, para 10(b) and has been endorsed, inter alia, by the European Council Meeting of 15 December 2016 – Conclusions, EUCO 34/16, para 11. 11 D Spence and J Batora (eds), The European External Action Service: European Diplomacy Post-Westphalia (Palgrave Macmillan 2015) 1. 12 See, for example, H Rodham Clinton, Hard Choices (Simon and Schuster 2014) 24. 13 I Jennings (ed.), Satow’s Diplomatic Practice (7th edn, OUP 2017) 3.

The European Union’s foreign policies 463 state, under international law.14 The Union has made substantial strides in this regard since the coming into force of the Lisbon Treaty and the establishment of the European External Action Service (EEAS), which is discussed elsewhere in this volume.15 The establishment of the EEAS, however, does not detract from the diplomatic services and representation of the Member States, it is in addition to them.16 Notwithstanding the EU’s Common Security and Defence Policy (CSDP) and numerous EU ‘military’ operations, the Union is simply not a military actor in the traditional sense.17 As Nye notes, states are no longer the only important actors in global affairs, security is not the only major outcome that they seek and force will not be the only or always the best instrument to achieve desired outcomes.18 While this is certainly true, military capacity does, in some contexts, make a real difference in achieving desired foreign policy outcomes.19 If we return to the original first question and adjust it slightly, it makes a significant difference – does the Union have any power of its own? The instinctive and obvious answer in light of the above is yes but this is worth pondering further. The Union is a recognized legal person in international law, with its own legal capacities and abilities which can be exercised independently of the Member States.20 The ability to exercise power independent of the Member States, where, for example, the Union has exclusive competence, is indicative of its will. While that may be so, can it really be said that in its international relations the Union has interests and desired outcomes which are independent of its Member States, and the autonomous ability to bring about any necessary or desired change? Indeed, in the global context what are the Union’s interests which are independent of those of its Member States? The 2016 Global Strategy for the Union’s Foreign and Security Policy recognizes this fundamental issue.21 In the foreword the High Representative, Federica Mogherini, stresses that the ‘Strategy nurtures the ambition of strategic autonomy for the European Union’. Further 14

See Article 1(d), Convention on Rights and Duties of States (inter-American), 26 December 1933, which is reflective of part of the customary international law on statehood. 15 See Chapter 2 in this volume. 16 This can be seen very clearly in a major capital, such as Washington, when the role and presence of the Member States is considered. In 2016 the EU had 46 accredited diplomats; France had 59, Germany over 170 and the UK 103. See US State Department 2016 – Diplomatic List . Also see Declaration No. 13 Concerning the Common Foreign and Security Policy, OJ 2010 C 326/345, attached to the Lisbon Treaty, which makes clear that the EEAS does not affect the responsibilities of the Member States in this regard. 17 On military operations see Chapter 6 in this volume. 18 J Nye, ‘Hard, Soft and Smart Power’ in A Cooper, J Heine and R Thakur (eds), The Oxford Handbook of Modern Diplomacy (OUP 2013). 19 For example, in the context of the ‘war on terror’, the USA needed the cooperation of Pakistan to tackle Al-Qaeda in Afghanistan. Then US Deputy Secretary of State, Richard Armitage, advised Pervez Musharaff on the telephone that if Pakistan did not cooperate they should prepare ‘to be bombed back to the Stone Age’. Musharaff agreed in return for substantial amounts of aid. See P Musharaff, In the Line of Fire: A Memoir (Simon and Schuster 2006) 201. 20 Article 47 TEU. 21 ‘Shared Vision’ (n 10).

464 Research handbook on the EU’s common foreign and security policy the Strategy emphasizes that ‘there is no clash between national and European interests. Our shared interests can only be served by standing and acting together.’22 Legally speaking, the Member States may be exercising certain of their powers through the Union. In fact they are legally obliged to allow the Union to exclusively exercise certain powers on their behalf and there are distinct EU foreign policy-related activities where the Union and Member States both act, such as humanitarian aid and development cooperation. This does not detract, however, from the fact that the Union’s interests are actually those of the Member States and the Union’s numerous distinct sectoral policies, be they development, trade or environment, and CFSP are also a conduit for the views and interests of the Member States. There are, of course, in foreign policy terms differing priorities for the Member States. EU policy towards North Africa is not as pressing a matter for Sweden or Finland, for example, as compared to France, Spain and Italy. The EU’s ‘Eastern Partnership’ is not a priority for Portugal but is extremely important to the EU’s Baltic members among others. There are further situations where the Union adopts policies or instruments which are not agreeable to all the Member States. EULEX Kosovo, the Union’s rule of law policy towards Kosovo, is a good example.23 Here, due to the perspective of some Member States, not all are involved but these Member States abstain rather than object to such measures.24 While such policies can be perceived as more than the sum of the Member States’ interests, and thus distinct ‘Union interests’, it is more accurate to see them as the interests of the majority of the Member States but who are not being prevented by the others from using the Union as their collective conduit. Finally, in the context of this particular discussion, it is worth raising the question whether, with regard to the CFSP, there actually exists a distinct EU foreign policy or whether there are rather a number of EU-related (as there is no unitary external actor) policies which have external dimensions; or if it is more accurate to think of ‘European foreign policies’ as those of the Union and its Member States, whether acting together or unilaterally, when considered collectively.25 The answer to this question is not particularly straightforward, and the issue will be alluded to periodically in the discussion below. 3.2 How Much Power Does the Union Possess? The second question is how much power does the Union have in international relations? Two of the foremost analysts of power and global relations have argued that in the current multi-polar and rather unpredictable global context, ‘calculations of 22

ibid. The original measure is Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO, OJ 2008 L 42/92. 24 Cyprus, for example, abstained when the measures in n 23 above were adopted. 25 T Gerhing, K Urbanski and S Oberthür, ‘The European Union as an Inadvertent Great Power: EU Actorness and the Ukraine Crisis’ (2017) 55 Journal of Common Market Studies 727, 728 consider the bulk of the literature investigates ‘European foreign policy’ in an integrated way, that is EU communitarized external relations as well as Member State action whether coordinated or not as one. 23

The European Union’s foreign policies 465 power are even more delicate and deceptive than in previous ages’.26 It is, nonetheless, still worth pondering broadly how much power the Union has. The discussion here is not concerned with the internal legal powers that the Union possesses to conduct foreign policy, such as the ability to adopt sanctions. These are instruments adopted internally to effect external change, but any impact such measures will have depends upon the Union’s power, more broadly understood, in a particular context.27 Nor is the discussion concerned with the (in)ability (i.e., power) of the Union to be represented in international conferences or other international organizations.28 What is particularly significant is, as noted above, that the conduct of foreign policy has traditionally been the preserve of nation states. The idea that a ‘regional integration organization’ would conduct foreign policy, even if very closely related to its constituents’ foreign policies, is novel.29 To date, no other international organization, whether regional or global, has sought to conduct foreign policy.30 The Union’s attempt to do so has attracted considerable disdain. Kenneth Waltz, one of the leading lights of neo-Realism, has argued that the Union’s CFSP is not worthy of the appellation of foreign policy as the EU is not a state.31 While few subscribe to the view that the Union cannot conduct a foreign policy or policies per se, power is still understood in the context of inter-state relations notwithstanding the changing nature of global diplomacy.32 Before addressing the power of the Union as a foreign policy actor, however, it is worth making a few broader observations about the dynamics which relate to the Union’s foreign policies and those of its Member States. First, the Member States of the Union have a dimension to their own national foreign policy which deals with their relations with the Union. Second, there is an increasing overlap, especially in EU Member States, between domestic policy and foreign policy and the boundaries are no longer as clear as once they were. Third, the foreign policies of the individual Member States towards each other will almost always have some sort of direct or indirect relationship to the Union.33 Fourth, there is the relationship between the foreign policies of the individual Member States and the foreign policies 26

Keohane and Nye (n 7) 3. For broader discussion see C Portela, EU Sanctions and Foreign Policy: When and Why Do They Work (Routledge 2010). 28 See, for example, K Jørgensen and R Wessel, ‘The Position of the European Union in (Other) International Organizations: Confronting Legal and Political Approaches’ in P Koutrakos (ed.), European Foreign Policy: Legal and Political Aspects (Edward Elgar Publishing 2011) 261. 29 This is the term used in, for example, Article 42 of the Convention on the Rights of Persons with Disabilities, 2006, 2515 UNTS 3, so as to allow the Union to become party to the Convention. 30 While other regional/thematic organizations are capable of adopting policies vis-à-vis third states they do not conduct foreign policy as such. Mutual defence pacts, such as NATO, are somewhat different. 31 See K Waltz, ‘Structural Realism After the Cold War’ (2000) 25(1) International Security 5. 32 See A Cooper ‘The Changing Nature of Diplomacy’ and J Heine, ‘From Club to Network Diplomacy’ both in Cooper and others (eds), The Oxford Handbook (n 18). 33 For example, the so-called Le Touquet agreement between Britain and France would not be necessary were it not for EU rules on free movement and the Schengen Agreement. 27

466 Research handbook on the EU’s common foreign and security policy of the Union. In some foreign policy areas there is no potential discrepancy between the Union’s approach and that of the individual Member States. This will be where there is exclusive Union competence, such as many aspects of trade policy, or those few areas of foreign policy where all powers remain with the individual Member State.34 In the majority of areas, however, there will be an important relationship between the Union’s foreign policies and its power and the policies and power of some of its Member States. Thus, any assessment of the Union’s power in the framework of foreign policy by necessity refers initially to the power of its Member States, although this will be considered in the context of how this relates to the Union before moving on to the Union itself. At the time of writing the Union has three important global powers as Member States – France, Germany and the United Kingdom. Very simply, these three states dominate the Union’s foreign policy actions in the sense that their agreement is essential to the success of any Union endeavour.35 Of these three states, two are important military powers, both with nuclear capabilities and permanent seats (members of the P5) on the Security Council. There are other Member States with some limited military capacity, as well as a number who effectively have no military capacity whatsoever.36 Neither France nor the UK, the nuclear powers, have the military capabilities to match China, Russia or the USA but both are still important military powers in their own right. They are the only two EU states with the capacity to deploy substantial military force in different parts of the world.37 Britain and France are further the two major (former) global colonial powers, who kept most of their overseas territories well into the 20th century and maintain networks and special relations with many of their former colonies. The Union as an autonomous actor does not enjoy the benefit of the military resources and defence capabilities of its Member States nor does it enjoy the prerogatives of the two of its Member States having permanent membership of the Security Council.38 While being members of the P5 may now be considered somewhat of a historical anomaly, for Britain and France it defines their global status and is a symbol of huge 34 Douglas Hurd, the former British Foreign Secretary, noted in the early 1980s that even then there was no area of foreign policy making where ‘European influence is completely absent’. D Hurd, ‘Political Cooperation’ (1981) 57 International Affairs 383. 35 See B Crowe, Foreign Minister of Europe (Foreign Policy Centre 2005). It is important to stress that the EU’s external power consists of more than only diplomatic action, for example. It exercises normative and economic power among others but as this volume concentrates on the CFSP, these other dimensions are not the focus of the discussion. 36 For example, Luxembourg has a combined military of less than 1,000, Malta under 2,000, Slovenia under 8,000 and Sweden just over 10,000. These are nowhere near adequate to deal with a conventional military invasion. Using percentage of GDP on military expenditure as the gauge, a number of EU Member States are globally among the lowest spenders on their military. Facts derived from Central Intelligence Agency, The World Factbook, . 37 Recognition of this was behind the St. Malo Declaration (Joint Declaration Issued at the British-French Summit, Saint-Malo, France, 3–4 December 1998) which was the catalyst for what has become the CSDP. 38 I am not referring here to the CSDP – which is not about a standing EU military or defence capability – which is what I mean here.

The European Union’s foreign policies 467 prestige for both. As Hill notes, it is impossible to disentangle the global scope of Britain and France’s foreign policies from their status at the UN; the one implies the other, in a circular relationship.39 For the Union’s CFSP to have been meaningful in any context, it has to have been based on agreement between at the least Britain and France. France more so than Britain has sought to align the Union’s CFSP to its national position, which is driven by its national interests and the projection of French grandeur on a global scale. But for this to happen it has needed the agreement of Germany, or at least not its opposition.40 The Franco-German alliance has been critical in this regard and will become even more so once the UK has left the EU. This is not only with regard to CFSP/CSDP but more broadly the future trajectory of the Union as a whole.41 For Britain and France, foreign policy formulation is more complicated and tension laden than for the other Member States as it is more multi-layered, and this in turn impacts upon the Union and the effectiveness of its foreign policy capacity. Membership of the Security Council provides an immensely privileged channel through which interests can be projected and defended. If states are willing to compromise with an eye to the greater good and not focus on more parochial national interests, they are able to collectively respect and uphold the principles and norms that the Charter enshrines. Collective foreign policy actions through the Union also magnify the impact of the measures that can be adopted by any one Member State. As neighbouring, developed, Western European liberal democracies with many shared interests who are both members of the EU and who are members of the P5, Britain and France are quite naturally pushed together. If they are able to align their approaches and to channel those through the Union and the Security Council, especially using powers under Chapter VII of the Charter, it makes such measures extremely effective and thus also enhances the effectiveness of the Union’s position, if not its power.42 In relative terms, however, there is no doubt that the UK and France are the minor powers in the P5. For this reason, there is a marked tendency on the part of both to use the Security Council as a platform for promoting their own narrowly defined foreign policy priorities.43 The fact that two of its Member States are members of the P5 is thus a mixed blessing for the Union’s CFSP. Each set of circumstances, of course, has its own unique considerations and where Britain and France do agree there are numerous examples of the Security Council 39

C Hill, ‘The European Powers in the Security Council: Differing Interests, Differing Arenas’ in K Laatikainen and K Smith (eds), The European Union at the United Nations: Intersecting Multilateralisms (Macmillan 2006) 58. 40 See H Drake, Contemporary France (Palgrave Macmillan 2011) 205 and more broadly P Rieker, French Foreign Policy in a Changing Word: Practising Grandeur (Palgrave Macmillan 2017). 41 See Section II, Article 1 of the 1963 Treaty Between the French Republic and the Federal Republic of Germany on Franco-German Cooperation (the Elysée Treaty) 22 January 1963, which as translated notes: ‘The two Governments will consult before any decision on all important questions of foreign policy and, in the first place, on questions of common interest, with a view to reaching as far as possible an analogous position.’ 42 Thus ensuring, as per Article 25 of the UN Charter, that such measures are legally binding upon all states who are members of the UN. 43 Hill (n 39) 52.

468 Research handbook on the EU’s common foreign and security policy taking measures, not necessarily under Chapter VII, which reflect closely the EU’s stated position. To take an example, we can briefly consider the systematic and egregious violations of international law by Israel in the Occupied Palestinian Territories (OPTs). Britain and France routinely disagree as to how to respond to events on the ground and the preferable political route forward, but do not by and large disagree as to the legal issues in Israeli–Palestinian relations. Thus, when the opportunity presented itself, the UK and France both supported a Security Council Resolution at the end of 2016 which strongly condemned Israeli settlement activity in the OPTs.44 The Resolution closely reflects the EU’s adopted position on Israeli settlements and lends greater weight and credibility to the EU’s position.45 The adoption of the Resolution, however, was only possible due to a clear change of tack in the Security Council by the USA. The Obama administration had for most of its two terms continued to follow the broad US position since 1980 – the use or threat to use the veto – to protect Israel in the Security Council. Indeed the USA’s long-standing approach had meant that differences between Britain and France over how to respond to events in the OPTs did not manifest themselves in the Security Council as resolutions were simply not being tabled. When the Obama administration, at the very end of its second term, agreed to abstain from a vote in the Security Council due to an increasingly fractious relationship which manifested itself in personal public disdain between Obama and Netanyahu, only then were Britain and France able to help push through a resolution. When France and Britain disagree, however, their status as members of the P5 highlights to the world at large the EU’s lack of power in such circumstances and also how, first and foremost, these two states put their national interests and perspectives above all else. The acrimony between the UK and France over the 2003 US-led invasion of Iraq, while exceptional, highlights this clearly as both states started to engage in dramatic position-taking on the most global of stages.46 The Union in turn was paralysed and simply unable to act; in essence it had no power to do anything constructive.47 The wording of Article 34 TEU reflects the above reality and highlights how the Member States’ perspectives trump any collective approach that the Union may have been able to reach. Article 34(2) TEU applies to the obligations of Member States in any international organization or conference but it is understandably feeble when it comes to those enjoying membership of the Security Council, and especially so the two permanent members who have sought to defend their prerogatives and special status.48 According to Article 34 TEU, all members of the Security Council, not just the permanent ones, will ‘concert and keep the other Member States and the High 44

Security Council Resolution, 2334 (2016) 23 December 2016. See U Khaliq, ‘The European Union and the Middle East: Pragmatism, Post-normativity, and International Law’ (2010) 15 European Foreign Affairs Review 697. 46 Dominique De Villepin’s speech to the UN Security Council on 14 February 2003, in the context of the Iraq conflict, would be an archetype. 47 Among the EU’s then 15 Member States, Spain, Portugal and Italy were firmly behind the UK and committed troops. Germany and France were the most vocal European advocates of the opposing camp. 48 See M Rasch, The European Union at the United Nations: The Functioning and Coherence of EU External Representation in a State-Centric Environment (Brill 2008) 135ff. 45

The European Union’s foreign policies 469 Representative fully informed’. Member States which are members of the Security Council must also ‘defend the positions and the interests of the Union’ but this is to be ‘without prejudice to their responsibilities under the provisions of the United Nations Charter’. The obligation upon, in practice, Britain and France to work in ‘concert’ will be without effective substance once the UK has left the Union and France will in future need to coordinate its position with those other EU Member States who will from time to time hold a non-permanent seat.49 The chances of friction between EU Member States being played out in the Security Council will thus all but dissipate once the UK has left the Union; effective ‘EU power’ in the Security Council will gravitate to France and the EU’s approach will by necessity have to reflect closely the French position, reflecting French national interests and priorities, if it is to carry any traction in the Security Council. Finally, these obligations under the TEU are ‘without prejudice’ to the Member States’ responsibilities under the UN Charter. The Charter is thus, in this regard, the superior source of obligation and for the avoidance of any remaining doubt, the Member States have further underlined the protection of their interests through Declaration No. 13 attached to the Lisbon Treaty.50 In terms of the Union’s economic power, membership of the Group of Seven (G7) and Group of Twenty (G20) are fair barometers to try and assess the economic strength of the EU’s Member States.51 Four EU Member States (France, Germany, Italy and the UK) are members of the G7, membership of which is limited to the major industrial economies. The same four Member States as well as the EU itself are members of the G20. It is worth noting that notwithstanding the G20’s broader membership, which relates to population as well as size of the economy, no other EU Member State is a member of the G20; Spain is a permanent non-Member which is invited to leader summits but is not a full member. The individual Member States wish to obtain or retain their place in such gatherings and consequentially the voice and prestige that comes with membership of an exclusive club. There is a broad acceptance that the EU is a major global economic and trading power. One indicator of economic power is official reserves. The European Central Bank’s reserves in 2017 were calculated to be over €68 billion and outside the Eurozone those of the Bank of England to be £22 billion.52 For the purposes of comparison, the published Federal Reserve in the USA is approximately €120 billion.53 Another indicator of economic power is GDP. The combined GDP of the current Member States is the largest in the world but in terms of 49 Under the geographical allocation of non-permanent seats to the Security Council, at the time of writing a maximum of six EU Member States can simultaneously be on the Security Council. To date, there have only ever been five at one time. 50 See n 16 above. 51 The size of the economy is important as it relates to members’ quotas and voting power in the IMF where after the USA (17.46 per cent) and China (6.41 per cent), Germany (5.60 per cent) and then France and the UK (4.24 per cent each) have the largest quotas. See: . 52 Data available at: and . 53 Data at: – the methodology may not be the same as for the ECB and Bank of England.

470 Research handbook on the EU’s common foreign and security policy a share of global trade (thus not including trade between EU Member States) the USA and China both have a larger share.54 But it would be wrong to assume that the Union has the combined power of its Member States, be it economic or in another form. The combined economic prowess of the UK, Italy, Germany, France and the other Member States is not reflective of the ‘economic power’, whatever that may be, of the EU. The Union’s power will be less than the sum of the Member States’ economic power and influence – however it is measured – because the Union must reflect the common or shared perspective of the Member States. In coming to a ‘Union’ position there are various internal tensions to be resolved and compromises to be reached. These are between: first, the Member States themselves; second, between, on the one hand, the Member States and, on the other hand, the institutions; and third, between the institutions themselves. This is also the case where the Union enjoys exclusive competence in a field. The Union in such instances does, of course, enjoy the benefit of all its Member States having to vote for the Union position in certain international fora but that is the case once the Union’s position has been agreed internally. Furthermore, while economic power is in general part of a state’s foreign policy powers, the EU’s ‘economic power’ in terms of trade, for example, is not part and parcel of the CFSP. 3.3 The Nature of the Union’s Power The third and final issue worth reflecting upon at this juncture is the type of power the Union is in its international relations. There is a well-established strand of the literature that considers the Union to be a power of various sorts. The Union has been or can be described as a civilian, economic, coercive, normative, trade, market, transformative, super or great power.55 The underlying theme of almost all of this literature is that Europe’s power is rising but it is not a traditional actor in international relations – in that it does not have all the attributes of a state – and thus these different adjectives have to be used so as to describe the nature of its power.56 Whether the Union is indeed, among others, either a normative, transformative or great power and if this is a good or a bad thing is debatable but the number of labels highlights the multidimensional power the Union is deemed to exert in its relations with third states. Further, all these approaches assume that as a global actor the Union is, to use the term coined by Joseph Nye, a soft power. Federica Mogherini, the High Representative for 54

Data derived from . See, inter alia, H Bull, ‘Civilian Power Europe: A Contradiction in Terms?’(1982) 21 Journal of Common Market Studies 149; I Manners, ‘Normative Power Europe: A Contradiction in Terms?’ (2002) 40 Journal of Common Market Studies 235; C Damro, ‘Market Power Europe’ (2012) 19 Journal of European Public Policy 682; J McCormick, The European Superpower (Palgrave Macmillan 2006); T Börzel and T Risse, ‘The Transformative Power of Europe: The European Union and the Diffusion of Ideas’ (2009) KFG Working Paper Series 1 at ; S Meunier and K Nicolaïdis, ‘The European Union as a Conflicted Trade Power’ (2006) 13 Journal of European Public Policy 906; and Gerhing and others (n 25). 56 D Weber, ‘Declining Power Europe? The Evolution of the European Union’s Power in the Early 21st Century’ (2016) 3 European Review of International Studies 31, is one of the few works that considers Europe is a declining power. 55

The European Union’s foreign policies 471 Foreign Affairs and Security Policy, has described the Union as the ‘best in the field’ when it comes to the exercising of soft power.57 On what possible objective basis, however, can it be claimed that the EU is the ‘best’ soft power, whatever that might mean? A shortcoming with considering soft power is that it is in part subjective. Credible surveys which attempt to measure soft power by objectively measuring numerous matrices simply do not attempt to measure the soft power of the EU or any other non-state actor. They only attempt to measure the soft power of states.58 According to Nye, the soft power of an entity depends most on the following: its culture (whether it is attractive to others), its political values (when it lives up to those at home and abroad) and its foreign policies (when others see them as legitimate and having moral authority).59 It is thus a holistic approach considering both domestic culture and values and how those translate into external action. For the exercise of soft power to be effective it needs credibility, consistency, coherence and continuity. The values and policies which determine soft power are far more intangible than resources such as money, for example – a hard power resource. Due to the manner in which soft power is defined, liberal democracies are more likely to be able to exercise it than authoritarian regimes, although this is not always the case as the context makes a clear difference.60 In terms of culture, for example, it is about educational systems, think-tanks, research centres, universities and entertainment industries among a number of others – in US cultural terms, soft power comes from Hollywood as much as it does from Harvard. In the higher echelons of the global soft power rankings, those countries where English is the dominant language, the UK, USA, Canada and Australia, consistently appear in the top ten alongside Germany, France and Sweden.61 The UK, Germany and France always appear in the top five of any soft power ranking, with first place always being contested between the UK and USA.62 Thus, there is little doubt that many of the EU Member States are considered to wield substantial soft power; it is much more difficult to determine how much soft power the Union itself possesses, although there is no questioning that EU foreign policies such as development cooperation, humanitarian aid and enlargement are examples of the EU exercising its soft power in different ways and such activities also

57

Foreword by Federica Mogherini, ‘Shared Vision, Common Action’ (n 10). This is an oft-repeated assertion. 58 See, for examples, J McClory, The New Persuaders III: A 2012 Global Ranking of Soft Power (Institute for Government 2012); Anholt-GFK Roper Nation Brand Index available at and Portland Communications, The Soft Power 30: A Global Ranking of Soft Power (Portland PR Ltd. 2015) available at . Regarding the EU’s soft power, there is no credible methodology. 59 Nye (n 18) 566. 60 Israel, Singapore, Turkey and China all appear on such global rankings. 61 New Zealand and Ireland are both ranked between 10th and 20th place depending on the index. 62 Germany has been ranked first in the ‘nation brand index’ compiled by Anholt-GFK Roper.

472 Research handbook on the EU’s common foreign and security policy enhance the effectiveness of the soft power of the EU Member States.63 Although it is not directly about power, whether soft or otherwise, it is very significant that Brussels is one of what can be considered the three global multilateral diplomatic hubs, alongside Washington and New York. These are the key locations where global diplomacy is orchestrated and all states seek to ensure they have some form of representation.64 This is indicative of the clear perception of the EU’s influence and importance by third states but does not tell us much more. Hard power, by contrast, refers to more tangible assets such as military resources and economic power in the sense of financial capital. The global diplomat’s handbook, Satow, asserts that hard power is ‘real power’ and what you achieve in foreign policy terms depends to a ‘great extent’ on the hard power that is possessed.65 It should be stressed, though, that what is meant by soft or hard power does depend on the perspective.66 The military and economic power of some of the Member States and how this relates to the Union has been discussed above. What can be gleaned with regard to the Union’s self-perception of its hard power, which is something rarely referred to, is the approach adopted in the 2016 Global Strategy. The High Representative when discussing the Union’s hard power refers expressly and only to the Union’s military and civilian operations ‘serving under the European flag for peace and security’ and it is on this basis that the High Representative stresses that ‘for Europe, soft and hard power go hand in hand’.67 This is an approach to hard power in the most classic old diplomacy sense. While the Union’s economic hard power is not part of the CFSP, unless it relates to certain types of funding, the Global Strategy as a whole does recognize the Union’s importance in this regard as part of a more coherent overall foreign policy approach to numerous identified priorities, issues and global regions. Numerous regional, country and issue strategy papers do the same.68 In terms of ‘military hard power’, the Global Strategy does set out measures and actions such as encouraging defence cooperation but by and large the paucity of proposed actions reflects the limited role played by the CFSP in this regard.69 Analysis of power in the context of foreign policy has moved beyond simply discussing hard and soft power but rather how they are combined. Joseph Nye is also 63

The methodology of such indexes does not seem to expressly measure the EU dimension to the soft power of its Member States. 64 See Mark Malloch-Brown, ‘How to reform the British Foreign Office’ Financial Times (14 January 2010) from where I have borrowed the notion of ‘diplomacy being multi-lateralised’ at these locations. There are as of June 2017 166 Missions in Brussels accredited to the European Union, see . 65 Satow’s Diplomatic Practice (n 13) 4. 66 As Nye notes, the relationship between hard and soft power is not perfect, and terms such as ‘military power’ and ‘economic power’ are hybrids that combine both resources and behaviours. Nye (n 7) 9. 67 Foreword by Federica Mogherini, ‘Shared Vision, Common Action’ (n 10). The same approach is reflected in the Strategy itself, where the references to hard power concern security and defence only. 68 The obligation with regard to consistency exists in the TEU and is discussed expertly elsewhere in this volume. 69 See Chapter 8 in this volume.

The European Union’s foreign policies 473 credited with coining the term ‘smart power’ to describe certain foreign policy approaches.70 Smart power is defined as an approach that successfully combines hard and soft power resources in differing contexts to achieve effective strategies and desirable outcomes. The idea is not new and has long been understood; Fredrick the Great is often credited with stating that diplomacy without arms is like music without instruments. Power, at its most abstract level, can be defined by the ability to achieve outcomes – smart power is simply a strategy to that end. Hilary Clinton, regarded in the foreign policy literature as one of the most insightful and analytical high-profile diplomats of recent years, considers smart power to be the most effective strategy in global affairs and defines it as an actor using tools which are diplomatic, economic, political and legal as well as military instruments in conjunction to achieve identified outcomes.71 Smart power as a strategy is available to all – small and large powers alike. Nye gives the example of Norway, hardly a global power, but which has developed smart power strategies and enhanced its attractiveness with legitimizing policies in peace making and development assistance that enhance its power and influence.72 Smart power thus enhances the effectiveness of both soft and hard power capabilities. Norway is not the only example one can think of. Singapore and Qatar are two tiny territories but who punch far above their weight in diplomatic terms on the global scale through effective smart power strategies. The EU’s 2016 Global Strategy does not use the term ‘smart power’ with regard to the Union’s approach but it is clear that the overall approach is to try and use the different resources, tools and instruments available to it in a more integrated manner so as to achieve, as far as possible, identified common objectives. Having considered the notion of the Union’s foreign policy and power in international relations in rather abstract and general terms, the discussion now moves on to examining the historical background and context to the Union’s foreign policy. The discussion takes a broad approach but the underlying aim is to display that the broader context in which the Union’s CFSP was forged was such that the Union was not going to be able to live up to many of the expectations of it.

4. THE EU’S FOREIGN POLICY: HISTORY, ORIENTATION AND GEOPOLITICAL CONSIDERATIONS 4.1 The Casting of the EU’s Foreign Policy Die By the time of the adoption of the TEU the system of European Political Cooperation (EPC), which had been deemed adequate earlier, was seen as woefully inadequate.73 The broader geopolitical context of most of the EPC years was one of stability and familiarity in the context of Cold War politics, with containment via mutually assured 70

For a comprehensive analysis see Nye (n 7) 81. See, for example, their use by Rodham Clinton (n 12) 21. 72 Nye (n 18) 565. 73 For still the best account of EPC see S Nuttall, European Political Co-Operation (Clarendon Press 1992). 71

474 Research handbook on the EU’s common foreign and security policy destruction being the approach adopted by both main sides. The tail end of the 1980s, however, witnessed a rapidly changing context. The end of the Cold War led to the sense among some that ‘Europe’s’ moment on the global scene had arrived; with Europe meaning the developed liberal Western European democracies, not those emerging from the suffocating embrace of the Warsaw Pact. The most obvious opportunities from a European perspective presented themselves in Central, Eastern and Southern Europe. The flipside to the opportunities that seemed to present themselves were the responsibilities – whether self-assumed or endowed by others.74 And it is with regard to the brutal dismembering of Yugoslavia that the optimism and expectations of and on ‘Europe’ as a global actor reached their crescendo. The conflict in the former Yugoslavia was in some senses a ‘perfect storm’ for the EU’s CFSP, with the TEU coming into force shortly after hostilities broke out. Notwithstanding the sheer brutality of the conflict, there was a clear view among Western European governments and that of the USA that the conflict did not threaten the security of Europe as a whole.75 The Soviet Union, which was in the process of dissolution at the time, and then subsequently Russia, was incapable, even if it had wished to do so, of getting involved on the ground. The USA, by contrast, was the undisputed global hegemon. But as James Baker, President George H Bush’s Secretary of State, remarked, ‘[w]e don’t have a dog in that fight’ and, in any case, Baker and President Bush had, in conjunction with their leading foreign policy makers, decided that the matter could be left to the ‘Europeans’ as, in part, they were willing to rise to the challenge.76 Further to Germany’s unilateral and rather precipitous recognition of Croatia and Slovenia, the Member States were compelled to use the Union as a conduit through which they could take their agreed collective action vis-à-vis the situation and thus project, to the extent they could, their power and capabilities. The Member States were equally, if not more so, driven by their own self-interests.77 A further motive for getting involved was the psychological impact of atrocities being committed in Europe by Europeans against other Europeans within living memory of the atrocities committed prior to and during the Second World War. Depending upon one’s perspective, the willingness, naive optimism or arrogance of the Union to try and coordinate ‘European’ efforts in the context of the former Yugoslavia was articulated famously by Jacques Poos, the then Foreign Minister of 74 The Laeken Declaration is a good example of where it is considered the Union’s citizens expect the Union to play an important and major role on the global stage. Presidency Conclusions: European Council Meeting, Laeken 14 and 15 December 2001, Annex I, Laeken Declaration on the Future of the European Union, SN 300/1/01 REV 1, p. 16. The 2016 Global Strategy is a good example of the view that other global actors look to the Union to play such a role. 75 See M Rifkind, Power and Pragmatism: The Memoirs of Malcolm Rifkind (Biteback Publishing 2016) 309. 76 See L Silber and A Little, Yugoslavia: Death of a Nation (Penguin Books 1996) 201. See further Baker’s own recollections in J Baker III, The Politics of Diplomacy: Revolution, War & Peace, 1989–1992 (Perigee, First Printing 1995) 636. 77 For a clear statement to that effect in the later context of Kosovo see DG ECHO, Humanitarian Crises Out of the Spotlight (2000) 8.

The European Union’s foreign policies 475 Luxembourg. In the context of the Yugoslav conflict, Poos was able to speak for ‘Europe’ as Luxembourg then held the rotating EU Council Presidency. Poos is widely reported to have noted with regard to the conflict in Bosnia that ‘the hour of Europe has dawned’.78 The official records of the UN Security Council, however, highlight an important difference in that Poos is noted as stating ‘[t]his is the hour of Europe, not the hour of the Americans’.79 In light of the muddled and incoherent ‘European’ response to the disintegration of Yugoslavia and the ensuing conflict, the Union’s credibility as a major global power took a severe hit. Poos’ remark(s) have also been discredited but it is worth putting his perspective in its context, for it is important to an understanding of the broader expectations regarding the Union as an actor in international affairs and how it sought to set itself out differently from other powers.80 It is easy to forget the general elation, euphoria and optimism that accompanied the end of the Cold War. Some political scientists hailed it as the ‘end of history’ as it seemed capitalism and liberal democracy had triumphed over all other systems.81 President George H Bush, not known for his rhetorical flourishes, famously hailed a ‘new world order’ in light of the military campaign to expel the Iraqis from Kuwait.82 In his various speeches on the ‘new world order’ President Bush expressly argued that for the first time since the Second World War, the principles and vision of the United Nations could now be realized.83 What is still central in these arguments, however, is American exceptionalism and US global leadership. In essence, this is the idea that the United States and its ideals are special and that this exceptionalism ensured victory against the Soviet Union. On this basis, only the US can lead the ‘new world order’.84 Further, the USA has the responsibility of (re)building the world in its image.85 The

78 See Rifkind (n 75) 316 and A Kintis, ‘The European Union’s Foreign Policy and the War in the Former Yugoslavia’ in M Holland (ed.), Common Foreign and Security Policy: The Record and Reforms (Pinter 1997) 148. This comment by Poos has received great attention but in the context of the Iraq conflict, several months earlier, he is also reported to have described ‘the political insignificance of Europe’, quoted in C Whitney, ‘War in the Gulf: Europe; Gulf Fighting Shatters Europeans’ Fragile Unity’, New York Times (25 January 1991). 79 Emphasis added. See S/PV.3247, 29 June 1993 reproduced in D Bethlehem and M Weller, The Yugoslav Crisis in International Law: General Issues Part 1 (CUP 1997) 333. 80 Bill Clinton makes a particularly serious allegation with regard to the ‘passive and confused’ European efforts – in that some European leaders did not want a Muslim state (Bosnia) in the heart of the Balkans. See WJ Clinton, My Life (Arrow Books 2005) 513. 81 F Fukuyama, The End of History and the Last Man (Penguin Books 1992). 82 Address Before a Joint Session of the Congress on the State of the Union, 29 January 1991. 83 More expressly to this end see the television address to the nation by President Bush on 11 September 1991. 84 See n 82 above. 85 This has been a recurrent but not consistent theme in US foreign policy. See G Herring, The American Century & Beyond: U.S. Foreign Relations, 1893–2014 (OUP 2017) and S Brown, Faces of Power: Consistency and Change in United States Foreign Policy From Truman to Obama (3rd edn, Columbia University Press 2015).

476 Research handbook on the EU’s common foreign and security policy idea of American exceptionalism is extremely well established and often used as a justification for an at times very lukewarm attitude to the basic edicts of international law.86 ‘Exceptionalism’ is not only an American affliction but one that similarly blinkers many European leaders.87 Although it came some years later, it is worth referring to the Laeken Declaration as it is one example of the EU’s leaders articulating their self-perception of the Union as a foreign policy actor and their vision of it. The parallels with US exceptionalism in external affairs are noteworthy. The Laeken Declaration in part notes: Beyond its borders … the European Union is confronted with a fast-changing, globalised world. … What is Europe’s role in this changed world? Does Europe not, now that 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? Europe as the continent of humane values, the Magna Carta, the Bill of Rights, the French Revolution and the fall of the Berlin Wall; the continent of liberty, solidarity and above all diversity, meaning respect for others’ languages, cultures and traditions. The European Union’s one boundary is democracy and human rights. … Now that the Cold War is over and we are living in a globalised, yet also highly fragmented world, Europe needs to shoulder its responsibilities in the governance of globalisation. The role it has to play is … [i]n short, a power wanting to change the course of world affairs in such a way as to benefit not just the rich countries but also the poorest. A power seeking to set globalisation within a moral framework …88

The TEU post Lisbon does not go quite so far rhetorically but the provisions are clear enough. Article 2 TEU, as noted above, asserts that the Union is founded on the values of, inter alia, respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. If we refer back to soft power momentarily, this is the internal dimension concerning culture and political values which are deemed attractive to others. Article 3 in part refers to the external dimension of the internal model – the other part of soft power, legitimacy and moral authority as an external actor. As noted above, the ordering of priorities in Article 3 is deliberate and understandable – first and foremost the Union shall uphold and promote its values and interests and these contribute to the well-being or protection of its citizens. This is about domestic justification for external policy. Poos’ comment was thus an expression of a broader EU/European recognition that there was now a greater need to assert power and influence on the global stage. This was due to the awareness that the then ongoing disintegration of the Soviet Union was 86

See N Saito, Meeting the Enemy: American Exceptionalism and International Law (New York University Press 2010). More broadly, there is the notion of privilege accorded to all great powers, see G Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (CUP 2009). 87 The CJEU has also relied on ‘European exceptionalism’ in Joined Cases C-402 and 405/05P Kadi and Al Barakaat International Foundation v Council and Commission ECLI: EU:C:2008:461, para 316, much to the chagrin of international lawyers, but more broadly welcomed by EU lawyers. 88 Laeken Declaration (n 74) 20. Emphasis added.

The European Union’s foreign policies 477 leading to a significant power vacuum and others may seek that space which European states should, for various reasons, stake a claim to while the window of opportunity existed. The USA had of course affirmed its absolute supremacy in the then recent Gulf conflict. The only way for the EU to assert greater power and influence was to be an alternate not rival power to the USA. The EU Member States simply did not have the capacity to be a military rival to the USA, even if they wished to (which they did not), and in any case there was simply no envisaged need.89 Nor did the EU Member States wish to be an ideological rival to the USA, which is ostensibly also committed to the same values even if it has continually protected its interests in any way it has thought appropriate. The notion of global ‘American leadership’ has, however, consistently attracted disdain in Western European political circles.90 Rather, the only way forward was to adopt an approach to achieving outcomes which to others would be less threatening, more attractive, and quite frankly just. In the language of the later Laeken Declaration, the Union would act as a ‘power seeking to set globalisation within a moral framework’, a principled power which would act as a counter-weight to the others. This is a classic exercise in seeking to achieve external outcomes by projecting soft power – liberal political values domestically being reflected externally through foreign policies which are supposedly designed to appear legitimate, having moral authority and attractiveness. The Union had cast its foreign policy die and the overall approach adopted then has, subject to some developments, been maintained. There has of course in the interim been a recalibration of not only international relations, but also how those relations are conducted and by whom. Power is dispersed in a way that it was not in the early 1990s. Russia has reasserted itself, China and India have grown massively in economic terms and have been willing to act as major powers on the global scene in a way they simply were not willing (or in India’s case able) to in previous eras. Global affairs are also much more layered and increasingly complex. The number of actors and their motives have also proliferated, leading to a myriad of newer challenges. International relations are also generally rather more unpredictable than when compared to the height of the Cold War; the development of new technologies, in particular, has meant that military, strategic and economic threats now may come as much, if not more so, from the leaking of documents and from cyberattacks as they might from a physical attack. Having set itself out as a foreign policy actor in certain terms, the Union has had to meet the ‘expectations’ upon it. Retention of ultimate control by the Member States has always meant that the Union has never been likely to succeed in meeting the expectations its citizens and others might have had of it, as the larger more powerful Member States have not allowed themselves to be diminished on the global stage by the smaller ones, for whom a common EU-wide approach is, in relative and more 89

The Trump administration, which took office in 2017, is the first to openly challenge some of the assumptions underlying the functioning of NATO and the North Atlantic alliance but this seems to be more about money than the principle of mutual assistance. 90 For a snapshot of the complexities and contradictions of US–European relations during the early 1970s, see H Kissinger, Years of Upheaval (Weidenfeld and Nicolson 1982) 128; and during the Yugoslav conflict, Baker (n 76) 637. Also see Jon Henley, ‘Angela Merkel: EU cannot completely rely on US and Britain any more’, The Guardian (28 May 2017).

478 Research handbook on the EU’s common foreign and security policy general terms, of far greater value. What the Union can realistically achieve, however, is contextual and we also need to bear in mind other considerations which relate to its effectiveness as an actor in foreign policy terms. These are discussed below. 4.2 Locating the EU’s Foreign Policy Orientation What the Union as a foreign policy actor may be able to achieve, even in a best case scenario, in very significant part is determined by the wider context in which the Union operates as a global actor and the broad foreign policy approaches of the great powers. The broader context is worth reflecting on as it allows us to understand whether the Union is able make a unique contribution to global politics, as per the terms of some the discussion above, or whether its foreign policies and relations with others must in practice be driven by more prosaic concerns and thus impact negatively upon some of the expectations upon it. To do so, we need to first consider what the Union’s foreign policy is actually designed to achieve. We have referred above to some provisions of the TEU and political statements and examined the rationale behind the CFSP. But to go to the very heart of the question, are the references to interests and values in the Union’s CFSP intended to primarily deflect and insulate the Union and its Member States from certain external events or phenomena or are the Union’s foreign policies primarily about contributing to these external events in a positive way and seeking to help to resolve them?91 Protecting the Union and Member States from external events or threats is the less ambitious of the two approaches but the fact that the Union and Member States are fundamentally still intact may suggest that the Union’s foreign policy efforts have been successful. If the EU’s foreign policies are primarily about contributing in a positive way to global developments and this is used as the yardstick, then the Union’s inability (alongside that of the great powers) to resolve many of the big-picture issues makes it clear that either the Union’s foreign policy is more of a failure or that expectations surrounding it are simply unrealistic.92 If the orientation of the foreign policy that is adopted by the Union is primarily one of protecting the Member States then it is more geared towards being reactive. Resolving the big global issues requires a much more proactive approach to foreign policy. Of course, if considered holistically, all foreign policies are a combination of approaches and some sectoral policies will, by definition, have to take one approach or the other. In the EU context, humanitarian aid is by its very nature reactive; development aid, by contrast, is by definition proactive.93 With regard to these questions, the first thing to note is that the Union’s CFSP does not want for strategy positions, detailed strategy papers, common positions, decisions, policy statements and Council Conclusions to name but a few. Indeed, the Union has a 91

M Smith, Europe’s Foreign and Security Policy: The Institutionalization of Cooperation (CUP 2008) asks a series of similar questions. 92 S Hoffman, ‘Towards a Common European Foreign and Security Policy’ (2000) 38 Journal of Common Market Studies 189, for example, adopts the big-picture approach and laments the Union’s foreign policy failures. 93 On the relationship between development cooperation and humanitarian aid with CFSP, see Chapters 12 and 13 in this volume respectively.

The European Union’s foreign policies 479 strategy towards every region and on most conceivable global issues.94 By their very being, these strategies and the instruments, decisions and activities that accompany them create an expectation of action by the Union – otherwise why adopt them in the first place?95 If anything, however, the Union has more strategies than it can possibly give effect to as there are clearly tensions between them and balances in practice have to be struck. Balances also have to be struck between, on the one hand, proactive and reactive approaches and, on the other, resolving the big issues or seeking to protect more directly the Member States’ interests. These balances quite obviously differ according to the regions and issues under question and are clearly intertwined. Preventing nuclear proliferation, for example, requires a combination of proactive and reactive approaches as well as being protective of the Member States and seeking to contribute positively to the big issues.96 The Union’s two most comprehensive foreign policy strategy papers, the 2003 European Security Strategy97 and the 2016 Global Strategy for Foreign and Security Policy, are indicative of the Union’s more holistic approach to foreign policy and reflective of the evolving environment and the shift in the Union’s method over time.98 The 2003 Security Strategy on the whole sets out a more proactive approach, seeking to contribute positively to global issues but simultaneously recognizing the shortcomings of the Union as an actor and striving to strengthen its impact through, among other things, greater coherence, diplomatic and military capability, and working with regional and global partners. There is a discernible optimism to the tone of the 2003 Security Strategy. The 2016 Global Strategy has a somewhat different overall approach in that it seeks to be more comprehensive than the 2003 Security Strategy but its change of tack and defensive tone are noteworthy. The 2016 Global Strategy emphasizes repeatedly that the aim of the Union’s foreign policy is to protect ‘our citizens’ – no doubt with an eye to internal legitimacy. All identified priorities are focused on protecting and shielding Union citizens from external concerns. These priorities are in order: the security and defence of the Union, including counter-terrorism and energy security; the creation of resilient societies in a circle around the Union; conflict and crisis management in those societies outside the circle of resilient societies; cooperation with other regional orders; and finally global governance. The 2016 Global Strategy reflects a less ambitious and quite frankly more realistic approach to the Union’s foreign policies. It identifies ‘principled pragmatism’ as arguably the guiding principle of all external action. Principled pragmatism is classic 94

See for all current documents: . 95 Satow goes further in noting that the existence of legislation and extensive relations with third states can create the expectation that the Union can or should act in a manner akin to that of a single state. See Satow’s Diplomatic Practice (n 13) 421. 96 See Fight Against the Proliferation of Weapons of Mass Destruction – EU Strategy Against Proliferation of Weapons of Mass Destruction and further the annual progress reports available at: . See further Chapter 9 in this volume. 97 A Secure Europe in a Better World: European Security Strategy, Brussels, 12 December 2003. 98 ‘Shared Vision, Common Action’ (n 10).

480 Research handbook on the EU’s common foreign and security policy EU double talk – an oxymoron which can be spun to mean almost anything and which no doubt had to be adopted to appease the different views of the Member States on such matters.99 Pragmatism is the rationale behind transactional diplomacy more generally and will first and foremost be dictated by the interests and concerns of the Member States – it reflects a Realist approach to foreign policy where ‘morality’ and ‘values’ can play the most marginal of roles. This can be seen in the writings of the leading proponent of the Realist School in the last 50 years, Henry Kissinger. Kissinger, when discussing the relationship between principles and interests in foreign policy, noted that while states (the context of his discussion) should be prepared to pay some price for their convictions (i.e. values), the difficulty arises in determining the precise price to be paid and the relationship between the price to be paid and essential state priorities.100 This involves the search for an acceptable balance of interests but that is in itself ephemeral.101 For soft power to be effective it needs to be utilized, as noted above, in a manner that is credible, consistent, coherent, continuous and legitimate – otherwise those who are targeted will not act or react so as to allow the desired outcomes to be achieved. Pragmatism quite simply undermines soft power, it certainly does not enhance it. Those attempts that have been made to rank the soft power of states note with regard to the USA that its soft power is undermined due to perceptions of the lack of coherence and legitimacy of its external actions.102 We can now move on to consider to what exent the Union is able to contribute to events on the ground as a foreign policy actor. This is not about internal issues, although these are referred to where appropriate, but the broader geopolitical context. What is key in this, however, is that the Union is acting as a ‘major’ power on the global stage but is a very different actor from the ‘great powers’ – this relates back to what expectations of it should be. 4.3 European Foreign Policy Action in the Geopolitical Context As is obvious, the Union has control over certain matters and not over others, and only has certain tools at its disposal; thus the desired outcomes that can be achieved are always relative. This will be considered briefly with regard to two concrete situations, nuclear non-proliferation and Iran, and the Israeli-Palestinian situation, both of which also allow some general observations to be drawn. For various reasons, the Union Member States, or at least some of them, may be perceived as more palatable or perhaps trustworthy than other actors to pursue some end or other in global diplomacy. This is not to say that the Union or certain of its Member States are indeed deemed trustworthy or neutral but that the Union/certain Member States may be the lesser of the evils that have to be contended with. Who they 99 See for a candid assessment, ‘Interview with Nathalie Tocci on the Global Strategy for the European Union’s Foreign and Security Policy’ (2016) 51(3) International Spectator 1, 5 and more broadly N Tocci, Framing the EU Global Strategy: A Stronger Europe in a Fragile World (Palgrave Macmillan 2017). Tocci drafted the strategy for Federica Morgherini. 100 H Kissinger, Diplomacy (Simon and Schuster 1994) 811. 101 See further, R Thakur, ‘A Balance of Interests’ in Cooper and others, The Oxford Handbook (n 18) 70. 102 See n 58 above.

The European Union’s foreign policies 481 are will of course vary according to the issue and interests at stake. For example, the E3 (Germany, France and the UK) and later the so-called E3/EU +3 (Russia, China and USA, with the EU joining the E3), negotiated with Iran over its nuclear enrichment programme simply because no other state or group of states was initially acceptable or deemed trustworthy to all the interested protagonists.103 In this regard, the Union was able to play a role in helping to try and resolve a pressing global issue as there were no other viable options. This is not meant as faint praise as clearly the Union or at least certain of its Member States are perceived as having enough redeeming qualities, gravitas and credibility to be acceptable and worth negotiating with. In the case of Iran this is clear, especially so if one considers whether China, India, Russia, the USA or a major regional player such as Saudi Arabia would have been acceptable interlocutors with Iran. Once enough of the essentials had been covered, though, other actors had to come in as the E3 were unable on their own to push through any agreement with Iran. The need for the E3 to be joined by China, Russia, the USA and the EU itself is not necessarily a reflection of the E3’s lack of power per se vis-à-vis Iran. It suggests, rather, that in that context, more influence upon Iran and cost to it was needed than the E3 could alone deliver.104 There is little doubt, however, that once the EU extended it sanctions regime against Iran, this impacted upon Iran severely, especially as Iranian oil exports were covered for the first time.105 Furthermore, the Iranians had long looked to the EU Member States for goods and supplies that could not be sourced from the USA, due to the sanctions regime that state had unilaterally adopted following the 1979 Iranian revolution.106 The adoption of broader sanctions by the EU thus had an impact upon Iran which was significantly magnified by the broader circumstances and this lent weight to the EU as an actor in this context. For coercive diplomacy of this sort to succeed it needs domestic support, the objective and means pursued to be considered legitimate, a credible threat and a great enough cost to the target for it to change its course of action. The actor must also consider any cost it will incur in seeking change, and whether it is a cost it is willing to bear. The consequences, direct and indirect, of any action also need to be borne in 103

The Joint Comprehensive Plan of Action, the final agreement with Iran, adopted 14 July 2015 in Vienna refers to the E3/EU. The group was routinely referred to as the P5+ 1, with the 1 being Germany, not the EU3 + 3 outside of the Union. See, for example, all US State Department papers which discuss the matter. The Sultan of Oman was the secret conduit allowing discussions with the E3 to be set up. See Rodham Clinton (n 12) 417. See further on the EU–Iran deal Chapter 9 in this volume. 104 The E3 have no formal status but the European Council agreed to their negotiating with Iran. The subsequent involvement of the Union as a whole was necessary as the E3 were limited by exclusive Union competence in numerous fields. 105 See Council Conclusions on Iran, 23 January 2012, 3142nd Foreign Affairs Council as first implemented by Council Regulation (EU) No 267/2012, 23 March 2012, Concerning Restrictive Measures against Iran and Repealing Regulation (EU) No 961/2010, OJ 2012 L 88/1. Hillary Clinton describes the EU sanctions covering Iranian oil as ‘a huge blow’ to Iran. See Rodham Clinton (n 12) 439. 106 The earlier US measures were consolidated in the Iran Sanctions Act, 1996 as amended. The EU’s previous sanctions against Iran only related to items and persons connected to human rights violations.

482 Research handbook on the EU’s common foreign and security policy mind and this too is part of the cost. It was apparent in this case, for example, that if the EU imposed unilateral economic sanctions on Iran, that would mean that China would be able to secure a greater supply of oil from Iran and it may be able to do so more cheaply than the global market price, improving its competitiveness vis-à-vis the EU as a whole. In this example, however, the threat by the EU to take punitive measures was credible and the cost to Iran great enough for it to take notice once the measures were adopted by the Union. The EU still needed the great powers to be involved and action taken through the UN Security Council so that the safeguards adopted were deemed sufficient by all for an agreement to be reached. What is critical in all this is what constitutes the E3 in terms of the EU. The E3 is a pragmatic response to the obvious – that the leading Member States are the heavy lifters in foreign policy terms when it comes to high politics – and the lack of clarity and coherence that the EU as a whole brings to the table as an actor often undermines its ability to achieve the desired outcomes. The EU does not actually come out with as much credit from the Iran negotiations as a global actor as is often claimed. The EU institutions were initially brought in by the E3 as they wished to utilize the resources and facilities of the High Representative but did not seek to relinquish control at that point. Utilizing the EU High Representative also involved the Union more broadly and no doubt helped to dissipate some of the obvious internal tensions. This example comes back to the question raised earlier – what is the relationship or difference between the Member States’ interests and those of the Union? In other contexts, however, the Union or its Member States have an interest in taking meaningful action as a foreign policy actor or effecting change, but do not have the capacity to do so. The Israeli-Palestinian issue is an example, where the Union has been sidelined for numerous years and simply does not have the credibility, political weight or indeed moral authority to move matters forward according to its policy of a two-state solution in the face of what is effectively US indifference to the status quo.107 Notwithstanding Israeli political bravado, if the Union adopted a clear coherent strategy and was prepared to back it up with punitive measures, there is little doubt that Israel would have to respond in some way or other. But for the Union as a whole, such an approach is not deemed worth the political cost – especially falling out with the USA – over this matter. Unlike the approach towards Iran, where differences were overcome, however, the Israeli-Palestinian issue is one where very real differences of history, opinion and approach between the Union Member States, as well as far too many ‘Union actors’ and voices, undermine the Union’s position and Israel simply plays EU Member States off against one another, knowing full well the Union is incapable of exerting anything other than the most marginal influence on it.108 Both in the context of Iran and the Israeli-Palestinian issue, there has been passing reference to the credibility of the Union as an actor and that quality clearly enhances an entity’s power and influence. Credibility is about perceptions of trustworthiness – how likely are you to stick to agreements or carry out threats? But credibility, especially the dimension related to trustworthiness, is also judged by past behaviour and this is where the Union and its Member States face a very substantial handicap. The Laeken 107 108

On the issue of credibility see below. See Khaliq, ‘The European Union and the Middle East’ (n 45).

The European Union’s foreign policies 483 Declaration, as noted above, referred to Europe as the continent of ‘humane values, the Magna Carta, the Bill of Rights, the French Revolution … the continent of liberty, solidarity and above all diversity’. All that is true, but Europe is also in recent memory the continent of various brutal dictatorships, military juntas, fascist governments and the Holocaust, not to mention colonialism. The lack of reflection in the Declaration is quite staggering. Significant atrocities have been committed by, inter alia, British, French, Dutch, Portuguese, Spanish, and probably worst of all, the Belgian colonialists in living memory.109 It is an often stated view in political circles in Africa, Asia and, in particular, the Middle East that ‘European memories’ are very short. In many senses, for European states colonialism is now a part (mostly) of their past.110 However, for the several billion members of the human race who live with the consequences of European colonialism in all parts of the world, the impact and legacies of colonialism are an ever-present part of their contemporary existence.111 The colonial past of the Member States is not something that they can erase but it does mean that the Member States deal with many third states with substantial baggage and a significant credibility deficit. To take an example, the historic duplicity in relations with the Arabs and further the carving up of various territories by the British and French, plus the conduct of the Nazi regime in Germany are hardly conducive to those same three states being seen as trustworthy or honest brokers now in Arab-Israeli affairs. It can be argued that the ‘Union’ can be used as a shield to help remove relations one step from the ex-colonial Member States and their past conduct but this seems unlikely as the Union is simply not understood well enough in third countries.112 The fact that the USA, however, is the fundamental security and financial guarantor of Israel, yet still considers itself a neutral and objective peace broker for both sides, beggars belief. But the Palestinians have to accept a central role for the USA, otherwise there is no realistic chance of any deal with the Israelis. This is not to say that the USA is not hampered by a lack of trust but its clarity of approach, greater influence and power, including the ability to draw on all foreign policy tools including military ones, makes a real difference. The USA can, one way or another, far more often than not get what it wants in its dealings with third states.113 However, the colonial past of some of the Member States is not simply a historic issue in the context of the EU as a foreign policy actor. It is a consideration, sometimes a very significant one, in the current approach of certain Member States towards issues in their former colonies and this impacts upon the EU’s policy or approach. The EU’s 109

For a recent and accessible account of the impact of the British in the Asian sub-Continent, see S Tharoor, Inglorious Empire: What the British Did to India (Hurst & Co 2017). 110 There are of course various ‘overseas territories’ all over the world as a direct legacy of European colonialism. 111 The treatment of indigenous Americans by the Spanish would rank highly on any list of man’s greatest atrocities. For an account of the strategy and its legacy, see D Acemoglu and J Robinson, Why Nations Fail: The Origins of Power, Prosperity and Poverty (Profile Books 2012) 13. 112 See the case studies in S Lucarelli and L Fioramonti (eds), External Perceptions of the European Union as a Global Actor (Routledge 2010). 113 See n 19 above.

484 Research handbook on the EU’s common foreign and security policy relations with the ACP countries are an example, but it goes beyond this. There is a clear and established ‘understanding’ between certain EU Member States that one Member State does not intervene in another Member State’s former colonial territory without the agreement of the former colonial master. Such an understanding between European powers is a perverse continuation of a form of loco parentis with regard to full members of the international community of states. This, however, is why France has militarily intervened and taken the lead in, for example, Rwanda, Mali and the Central African Republic.114 Where this understanding has broken down it has led to a heated falling out between European Heads of State. As is well known, France under the Presidency of Nicolas Sarkozy decided to take the lead during military intervention in Libya in 2011 as the hold of Muammar Gaddafi’s despotic regime loosened due to the ensuing internal armed conflict.115 The fact that Sarkozy did not seek Italian ‘permission’ prior to taking military action led, according to Hillary Clinton, to an absolutely incensed Silvio Berlusconi as it was a breach of the understanding.116 In this instance, it is even more striking, given that the Italians were expelled from Libya just after the end of the Second World War. But the French-led Libyan intervention raises other difficult issues alluded to above. The Security Council resolution that authorized the use of force in the context of Libya did so with the clear aim of protecting civilians by creating a so-called ‘no-fly-zone’ and further tightening sanctions.117 Introducing the Resolution, the then Foreign Minister of France, Alain Juppé, stated that ‘the situation on the ground is more alarming than ever’, that the Security Council could not stand by and ‘let the warmongers flout international legality’ and that the Gaddafi regime had redoubled violence against Libyan civilians.118 The Security Council Resolution repeatedly stresses its raison d’être as the protection of civilians. The ostensible rationale only focused on protecting citizens from a despotic regime, although it was one which some European states had already re-embraced and cosied up to with an eye to lucrative commercial dealings.119 Subsequently leaked US documents, however, indicate that US intelligence were of the clear view that the French operation was motivated by considerations which were far from humanitarian. These motivations included: stopping Gaddafi’s very advanced plans to set up a pan-African currency, which was a direct competitor to the French Franc still relied upon by Francophone African countries; a 114

See A Rouvez with the assistance of M Coco and Jean-Paul Paddack, Disconsolate Empires: French, British and Belgian Military Involvement in Post-colonial Sub-Saharan Africa (University Press of America 1994). 115 France and to a lesser extent the UK took the lead for NATO, which was authorised by UN Security Council Resolution 1973 (2011), 17 March 2011. 116 Rodham Clinton (n 12) 373. 117 UNSC Resolution 1973 (2011), 17 March 2011. 118 Security Council Approves ‘No-Fly Zone’ over Libya, Authorizing ‘All Necessary Measures’ to Protect Civilians, by Vote of 10 in Favour with 5 Abstentions, Security Council, 6498th Meeting (Night), SC/10200, 17 March 2011. 119 Notwithstanding extensive sanctions against the Gaddafi regime further to the Lockerbie incident, by 2010 Tony Blair, Nicolas Sarkozy and Silvio Berlusconi had made concerted efforts to bring Libya back into the ‘fold’. This was driven by cooperation concerning migrant flows and the commercial opportunities in Libya.

The European Union’s foreign policies 485 desire to gain a greater share of Libyan oil production; increasing French influence in North Africa; checking Gaddafi’s strategy to supplant France as the most influential political actor in Francophone Africa; improving Sarkozy’s standing domestically, showing him to be a strong leader on the global stage; and finally providing the French an opportunity to reassert their position as a military power on the global scene: in all the projection of French grandeur.120 Most of the reasoning relates back to colonial thinking. In this case, the apparent French duplicity, if it is indeed that, taints even more greatly the military intervention and the lack of appropriate planning for the subsequent consequences. Most foreign policy interventions, of course, have various motives. A very real issue for numerous European states, however, is that their historic exploitation of their former colonies and their wide-scale duplicity and brutality in doing so means they are already perceived in many parts of the world as untrustworthy. When other such motives, as those alleged in the case of France and Libya, come to the fore, the credibility of all Union foreign policy interventions becomes questionable because there is (for those outside of the EU) a lack of a clear distinction between the Member States and the Union. What is lost in all this is that Germany was very clearly opposed all along to military intervention. At the time Resolution 1973 was adopted, it was a rotating member of the Security Council. Germany did not have the ability to veto the Resolution and ultimately chose not to vote against the Resolution but did abstain. Furthermore, the British military role has not been considered with any credibility to have been motivated by anything other than primarily humanitarian concerns. The entire military intervention, however, has arguably lost much of its legitimacy, even if legal, as it was expressly authorized by the Security Council. There is thus a very significant schism between how, on the one hand, the EU and its Member States project and portray themselves as global actors and, on the other hand, how they are perceived by much of the rest of the world.121 All this relates to the issue of expectations and the final substantive section tackles this more fully.

5. WHOSE EXPECTATIONS, WHAT EXPECTATIONS? In the discussion above there has been reference on several occasions to expectations on the EU as a global actor. Treaty provisions, legislation and political statements all create an expectation of some action from the Union. Establishing the CFSP led to an expectation in its own right; it was supposed to be a development of EPC and to allow the Union to assert itself and reflect its actual power in the context of a changed global order. External expectations are obviously contingent upon whom the external is referring to. Third states have vastly different expectations of the Union. What the Eastern Neighbourhood states expect from the Union – eventual membership and a buffer from Russian yoke – is substantially different from what the ACP states, for 120

Unclassified US Department of State. Case No.F-2014-20439 Doc No. C05779612, 21 December 2015. Hilary Clinton is clear that Sarkozy used military power in Libya to reassert French military prowess on the global stage. See Rodham Clinton (n 12) 209. 121 For the most comprehensive analysis see Lucarelli and Fioramonti (n 112).

486 Research handbook on the EU’s common foreign and security policy example, can expect from the Union. Similarly, how the Palestinians, Israelis, Indians and Chinese, for example, view the Union and its Member States and their expectations of them differ significantly. The Union acts in foreign policy terms in the name of its citizens. This is about internal expectations but also relates to ‘domestic’ legitimacy as a dimension of soft power. The views of EU citizens, however, on what objectives the Union should pursue in foreign policy differ significantly between the Member States, even if there is broad agreement that the Union should play a major role; thus some internal expectations can never be met.122 There are therefore, stating the obvious, both external and internal expectations. The literature has since Christopher Hill’s seminal work adopted the use of the term ‘expectations’ and in accordance with the established approach I have used the term above.123 From a legal perspective, however, it is simply an inappropriate term in certain of the contexts we are examining. An expectation is generally a demand, it is not as strong as asserting a right nor is it about an obligation to behave in a certain way. An ‘expectation’ in this context is correctly used, an anticipation about how an entity or person will act or react or what is likely to happen. It is reasonable to expect that the Union and/or its Member States will behave in certain ways but that is more justifiable where there is a legal obligation. Unilateral actions can entail legal obligations – but there is always a ‘legitimate expectation’ in such cases.124 Where the Union or Member States, in the context of foreign affairs, are in the realm of policy and discretion, as they very often are, desire or hope are more appropriate terms than expectation. It is reasonable to expect a Member State’s or the Union’s behaviour to be consistent vis-à-vis a third country or regions over time and not to suddenly change direction unless there is a change of circumstance which justifies that. So, from a legal perspective, the schism between expectations of the Union and its capabilities is from the outset not as great as the literature would suggest. The Union as an actor has been central in a number of debates, one of which is who is now at the global level a foreign policy actor?125 As was noted above, no other ‘regional integration organization’ has ever sought to conduct ‘foreign policy’, so what is the appropriate yardstick? There are three key issues here, which overlap at certain points. First, who or what is the Union’s foreign policy being measured against? Second, what is the expectation in terms of response and to what? Third, what is the basis upon which success or failure is measured? 122 See, for example, the various surveys by the Pew Research Centre but especially, Europeans Face the World Divided (June 2016) available at . 123 See n 1 above. 124 See the reasoning in New Zealand v France (1974) ICJ Reports, 457 and Australia v France (1974) ICJ Reports 253, where this is clear. The International Law Commission in 2006 adopted the Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, para 10 of which notes, ‘[a] unilateral declaration that has created legal obligations for the State making the declaration cannot be revoked arbitrarily’. 125 M Smith, J Koops and G Macaj (eds), The European Union as a Diplomatic Actor (Palgrave Macmillan 2015) 13 note that the Union has been involved in a number of such debates at the global level.

The European Union’s foreign policies 487 With regard to the first issue, the Union’s pursuit of influence and status as well as seeking to protect its interests clearly brings with it a demand for action (internal and external) and an ‘expectation’ of results, and these can present challenges which are difficult to overcome. This is especially so in what is now a more unpredictable global context, where outcomes are perhaps more variable than once they were. But can a small group of ‘middling powers’, working with a significant number of more minor powers, exert greater influence when it comes to the realm of high politics and act like a superpower or at least a great(er) power in the global context? It has simply never been tried in this way on this scale by any other group of states. The Franco-German alliance, Benelux countries and Nordic states have all sought in different ways to work together but these groupings do not relate to all aspects of foreign policy, nor do they have the institutions and structures that the Union has established to that end.126 It is clear, however, that the Union does not have all the traditional tools to conduct foreign policy even though it has made substantial strides forward in various respects. This brings us on to the second question, what is the ‘expectation’ and in response to what? Is there an expectation that the Union can help end a conflict by assisting with negotiation and mediation; or punish a transgressing state with the adoption of coercive measures and condemnatory statements? In other contexts, is the expectation that the Union will be funding projects seeking to ease tensions in society or throwing large sums of money at a problem by providing food, development or humanitarian aid so as to alleviate suffering? These all primarily relate to internal expectations but what are the expectations of those who are the targets of such measures? Obviously, they will differ significantly from internal expectations. Russian foreign policy advisors, for example, no doubt advised the relevant decision makers that if Russia invaded Crimea, they could expect a reaction from the EU Member States. Thus there was an expectation of the Union here as foreign policy actor, but on this occasion it was calculated to be a cost the Russian leadership was willing to bear. To tackle a different dimension of the same issue, when measuring expectations of the EU in foreign policy terms, is it being compared to a great power, as some claim the Union is, and is that the yardstick? Or is it better seen as a global, regional, special or marginal power? Alternatively should we view it as solely a sectoral power, in terms of, for example, trade or humanitarian aid? The Union is, in terms of power in foreign policy, broadly speaking difficult to pin down – it may be best to describe it as a multi-contextual power. It has some power only in particular contexts, fields and vis-à-vis certain third states as the discussion above highlights. All states differ in their capacities with regard to other states, so that alone does not differentiate the Union per se from other global actors but, generally speaking, a state’s economic power can be more or less commensurate with its military power and its soft or other power, if it so chooses; it is a question of distributing resources according to identified priorities. In the case of the Union it cannot ‘redistribute’ its power as its capacity is contingent on the competence conferred by the Member States. The power differentials between various fields of activity in the context of the then EEC were searingly summed up by 126 As noted above, the Elysée Treaty of 1961 relates to foreign policy cooperation. The Nordic countries, for example, have worked together over many years to influence the law of reservations under human rights treaties.

488 Research handbook on the EU’s common foreign and security policy the former Belgian Foreign Minister Mark Eyskens, in the context of the US-led invasion of Kuwait in 1991 when European-led efforts to diplomatically avert the crisis failed. He stated, ‘Europe is an economic giant, a political dwarf and a military worm’.127 This statement has been considered to have ‘long haunted the EU’ as global actor, in the sense of the EU not being able to act as a power in all fields – thus relating to capabilities and also expectations of it.128 Kissinger’s long reported quote relating to ‘who do I call when I want to speak to Europe’ is also seen as widely undermining EU efforts to act as a power on the global stage.129 Allen has stated the answer of who speaks for Europe has been a constant and difficult question but of the highest level of politics.130 The creation of the post of the High Representative was clearly done in part with an eye to coherence but it was also repeatedly asserted by EU officials to be the answer to Kissinger’s question.131 Kissinger’s question is not quite as apocryphal as now seems to be very widely assumed.132 In terms of Kissinger’s question, the Union is not Europe and it is difficult to see what difference it would make to have just one point of contact for the Union. Would one EU representative on all such matters negate the need for the US Secretary of State or President to speak to the Germans and, in particular, the British and French as members of the P5? Kissinger was frustrated with the multiplicity of ‘European’ voices during the early 1970s. As he himself put it, ‘the issue is each national leader spoke for Europe but was not the spokesperson of Europe’.133 In a speech to the Pilgrim’s Society in London in 1973, he refers to the fact that dealing with the then nine EEC Member States was almost impossible since it was so difficult for the EEC to renegotiate its position once it had arrived at a compromise, hence ‘Who do I call if I want to speak to Europe’ was at the heart of his frustration as opposed to the exact wording of the question itself.134 Kissinger’s sentiment is not about capabilities or coherence only, it is also about expectations in the old diplomacy sense – who do I 127 Quoted in C Whitney, ‘War in the Gulf: Europe; Gulf Fighting Shatters Europeans’ Fragile Unity’, New York Times (25 January 1991). 128 G Edwards, ‘Engaging the World’ in Hill, Smith and Vanhoonacker (eds), International Relations and the European Union (n 9) 46. 129 Lord Hannay, an eminent former British diplomat, stated, ‘Kissinger, managed to fix the whole debate practically forever … with his remark about which telephone number he had to ring’. See Hansard, House of Lords, 3 June 2103, Column GC133. 130 D Allen, ‘Who Speaks for Europe?: The Search for an Effective and Coherent External Policy’ in Peterson and Sjursen (eds), A Common Foreign Policy (n 1) 45. 131 V Geera, ‘Kissinger says calling Europe quote not likely his’ Associated Press (27 June 2012) available at: . 132 See ibid; Gideon Rachman, ‘Kissinger never wanted to dial Europe’, Financial Times Blog (22 July 2009) available at: ; and M Sobczky, ‘Kissinger Still Lacks a Number to Call Europe’, The Wall Street Journal (27 June 2012) available at: . 133 Kissinger (n 90) 57. 134 H Kissinger, Address to Pilgrim’s Society, London, 12 December 1973, NARA, RG 59, CFPF, 14609. I am exceptionally grateful to Professor Luke Nichter for his assistance in tracking down this and other related material.

The European Union’s foreign policies 489 negotiate with as the (one) representative of ‘Europe’ when I need to discuss a global matter? In the multi-stakeholder context of the Union, there will always be a multitude of voices on issues of high politics. The expectation here is the Union will act in a manner akin to a (super) state; but it simply cannot and the expectation bears no relation to reality. It is clear, however, that some external expectations of the Union have decreased. The Union institutions, for their part, have sought to dampen expectations by toning down some of their political rhetoric. By the time the Lisbon Treaty was adopted there had been the chastening Dutch and French referenda and the European Council clearly scaled back their ambition as to the Union’s role in global affairs. In the December 2007 Brussels European Council, the Presidency Conclusions reflected this more limited ambition. They in part noted: … even the enlarged Union cannot act alone. We must engage our international partners in enhanced strategic cooperation and work together within stronger multilateral organisations. The Lisbon Treaty, in setting a reformed and lasting institutional framework improves our capacity to fulfil our responsibilities, respecting the core principles enshrined in the Berlin declaration. It will bring increased consistency to our external action.135

The Laeken Declaration, which had set in motion the reform process which eventually led to the Lisbon Treaty, was about much more than just consistency in external action. But the clear emphasis on consistency and coherence is about dampening expectations and not, quite rightly, adding to the vacuous rhetoric of dealing with the heart-rending injustices of the world. In that sense, there is little doubt that the Union’s actions generally have not matched up to its words and the Union is seen as less credible in that regard. There is thus a lowered expectation of what the Union will actually do, as opposed to what it says it will do. The notion that the Union is a virtuous or benevolent actor is known for what it is. The Union is, for example, an aggressive economic actor, with much soft power in this regard, and far from the value-laden, benevolent, ethical actor – acting as a principled counter-weight to China, Russia and the USA – it likes to present itself as. NGOs working in development, for example, for numerous years have been highlighting the Union’s double standards and this clearly will have changed their perception of the Union and expectation of what it is likely to do in a certain context.136 The third question above was, what is the basis upon which success or failure, in terms of the Union’s foreign policy, is measured and how does this relate to expectations? The normal lament centres around the Union not exercising its power effectively in pursuit of its interests. It is difficult to determine what are successful foreign policy strategies or decisions.137 More often than not, the actual success or 135 European Council, Brussels, 14 December 2007. EU Document No. 16616/ 1/07 REV 1, Presidency Conclusions, Annex: EU Declaration on Globalisation, para 2. The Brussels European Council met one day after the Lisbon Treaty was signed on 13 December 2007. 136 See, for example, Oxfam, Rigged Rules and Double Standards: Trade Globalisation and the Fight Against Poverty (Oxfam International 2002). 137 For an attempt to set out a framework see D Baldwin, ‘Success and Failure in Foreign Policy’ (2000) 3 Annual Review of Political Science 167. The lack of agreement as to what constitutes success is apparent in G Craig and F Loewenheim (eds), The Diplomats, 1939–1979

490 Research handbook on the EU’s common foreign and security policy failure of a policy or event and its significance can only be accurately judged with the benefit of many years of hindsight, once all or many of the direct and indirect consequences have manifested themselves. Suez, for example, is widely considered a foreign policy failure for the British and French. But in some respects it prompted both nations to reassess their status and power in the world, forcing them to adjust their ambition going forward and possibly averting even greater disasters. In that sense it is not a failure of foreign policy when viewed through a broader long-term perspective but, of course, can only be seen as a failure in the immediate context of the events of late 1956. Two approaches to ‘successful foreign policy’ can be considered here in the context of examining if the Union meets expectations. Former US President Bill Clinton is of the view that the most successful foreign policies can be considered to be those which diffuse or prevent problems before they manifest themselves.138 Second, Ann-Marie Slaughter has argued that the key to successful foreign policy is ‘networked diplomacy’.139 These will be examined in turn. There is quite something to President Clinton’s view that the most successful foreign policies are those which diffuse or prevent problems before they manifest themselves, but it is not always correct. This will be considered in the context of the Union and the uprisings in North Africa as of 2011. For the Union these uprisings were about seeking to maintain the status quo as it is sensitive to change in the region and such change can cause it significant cost. The Union had a long-term strategy given effect by legal instruments and numerous agreements, and it also contributed very significant sums of money to the region. Certain Member States also had very close and well-established links with some of the regimes in power. The Member States’ and Union’s interests had for many years led to the prioritization of supporting authoritarian, stable, ‘devil you know’ regimes over democratic ones. The Union and France, in particular, had been wary of democracy in North Africa since the Algerian elections of 1991 in which it was clear that the Front Islamique du Salut was on course for victory.140 In ‘Arab Spring states’ such as Egypt and Tunisia the EU had little space to intervene on a diplomatic basis during the initial uprisings as it had been associated with the ousted regimes. In essence it was a bystander throughout as matters were dealt with and resolved, to a greater or lesser extent, internally. Libya, however, raises much more pressing and fundamental problems. The Libyan conflict and the military intervention has been alluded to above, but alongside some other conflicts, that in Libya has been classified as one of a series of ‘new wars’ in the sense that international law struggles to (Princeton University Press 1994). Also see further House of Lords EU Committee, 11th Report of the session 2012–2013, The EU’s External Action Service (HMSO: London 2013) para 86: ‘it was difficult for any foreign service to measure success or failure quantitatively’. 138 Clinton (n 80) 502. 139 See Ann-Marie Slaughter, ‘America’s Edge: Power in the Networked Century’ (2009) 88(1) Foreign Affairs 94 and more broadly, A New World Order (Princeton University Press 2004). 140 For discussion of the 1991 elections see J Ruedy, Modern Algeria: the Origins and Development of Nations (2nd edn, Indiana University Press 2005) 257. The Union and Member States have an Association Agreement with Algeria: Euro-Mediterranean Agreement Establishing an Association between the European Community and its Member States, of the one Part, and the People’s Democratic Republic of Algeria, of the other Part, OJ 2005 L 265/12.

The European Union’s foreign policies 491 adequately regulate them.141 But this comes back to a number of questions also alluded to above more broadly – do the Union’s interests as a consequence of such uprisings dictate direct involvement, possibly intervention of some sort, or in foreign policy terms would a ‘hands-off’ approach be preferable to allow the situation to resolve itself, after which the Union seeks to (re)engage as and when it can? Where international law itself is in flux in the context of a conflict, the response of third states in the immediate region of the conflict is much more likely to be driven by direct interests. In the context of North Africa, for the Union and its Member States that is about stability and stemming migrant flows northwards. Article 21 TEU may in part stipulate that the Union’s action shall seek to advance democracy in the wider world but this has never been a meaningful objective for the Union in North Africa.142 The fission here is thus between interests and values – expectations, more accurately desires, related to values will differ substantially from those relating to interests. At other times, however, seeking to maintain the status quo can be considered as an error in foreign policy, especially when an actor such as the Union potentially has very real influence in seeking positive change. This can be seen in the context of the Union’s approach to Cyprus and the dispute between the Turkish and Greek communities. By admitting Cyprus to the Union, without attempting to strongly press for resolution of its partition, the Union has lost most of its leverage. The window of opportunity for the Union to exert the greatest pressure has now passed and while it may still play a key role in any future resolution of the island’s partition, it has already played its strongest hand. The second issue to consider in the context of a ‘successful’ foreign policy in terms of meeting expectations is ‘networked diplomacy’. Ann-Marie Slaughter’s argument around ‘networks’ and the need to be at the centre of a web of connections with other centres of power and influence is a persuasive one in terms of engagement and assessing risks and threats to the Union and the well-being of its citizens. This can be examined briefly in the context of the EEAS, although that Service is examined in far greater detail elsewhere in this volume.143 The EEAS was, of course, set up with an eye to enhancing the visibility and presence of the EU as, in part, a more coherent presence in third states than the old Commission delegations that it replaced. As noted above, the Union has played an important role in the shift towards new diplomatic actors. As Satow notes, the context of diplomacy has changed, leading to a much more crowded diplomatic space.144 In this space, the Union is one of numerous newer actors and there is consequentially a pressure to act so as to justify the actor and its presence. It is hardly a revelation to argue that the state-centric model of traditional diplomacy has continued to serve perfectly well the larger Member States of the Union but far less so the smaller ones.145 The setting up of the EEAS in part reflects a realization that 141

See C Chinkin and M Kaldor, International Law and New Wars (CUP 2017). The approach adopted in the Declaration of the Extraordinary European Council, 11 March 2011, EUCO 7/1/11 Rev 1 in the light of the uprisings displays the extent of the EU’s hypocrisy. 143 See Chapter 2 in this volume. 144 Satow’s Diplomatic Practice (n 13) 20. 145 House of Lords, The EU’s External Action Service (n 137) paras 60 and 157. 142

492 Research handbook on the EU’s common foreign and security policy pre-existing models and approaches to EU diplomacy needed to evolve to achieve benefits for all the Member States and not just the most powerful when the Union is acting in the global context.146 Catherine Ashton’s description of setting up the EEAS ‘like flying a plane while you are still building the wings and somebody might be trying to take the tail off at the same time’ is in part a reflection of the establishment of the EEAS in a shifting context – where the EU is evolving as a global actor but also working out what is acceptable and workable between the Member States.147 This, however, is not happening in a static environment: the global context is also changing. By the time the internal turf wars have been fully settled, global shifts will have changed the environment in which the EEAS will be operating.148 Thus the EEAS will always be playing catch up and not delivering as efficiently all the networks the Union needs on the global scene. This, however, is not a failure of foreign policy or more accurately its implementation through diplomacy, rather a recognition that the EEAS needs to continue to evolve to meet the myriad challenges and issues, internal and external, that it is faced with. This is recognized in both the 2013 Review of the EEAS and the 2016 Progress Report.149 Since the establishment of the EEAS, the British have been the most recalcitrant of the Member States with regard to its competences and powers, such as those to represent the Union in international fora.150 The UK’s withdrawal from the EU may bring such spats to an end but there is little doubt that the implications of the UK’s withdrawal will not all be positive for the Union and the effectiveness of its foreign policy. This is developed further in the conclusions.

6. CONCLUSIONS The one underlying conclusion of the analysis above is that the gap between what the Union can achieve and what it does achieve is not as great as is usually assumed. The discussion has examined in detail the nature of the Union as a power in the global context and related this back to the perceived gap between the Union’s capabilities and the expectations upon it. The discussion has sought to deconstruct or reconsider many 146 D Spence, ‘The EEAS and Its Epistemic Communities: The Challenges of Diplomatic Hybridism’ in Spence and Batora, European External Action Service (n 11) 53. 147 C Ashton, Evidence of 14 June 2011 to the House of Lords EU Committee, available at , 4. 148 KE Jørgensen, ‘EU Diplomacy in Global Governance: The Role of the EU External Action Service’ in J Koops and G Macaj (eds), The European Union as a Diplomatic Actor (Palgrave Macmillan 2015) 31. On internal turf wars see further House of Lords, The EU’s External Action Service (n 137), para 121. 149 See EEAS Review (2013) and Implementing of the EEAS Review: Progress Report of the High Representative to the Council Brussels, 11 January 2016, 5113/16. 150 See, for example, the description by Lord Hannay in the House of Lords, ‘There are some Member States – the UK, I fear, prominent among them – whose lip service of support for the EEAS is in sharp contrast to the resources they devote to the task of policing the lonely frontiers of competence creep, biting the ankles of the EEAS whenever any transgression, however minor, is perceived.’ See Hansard, House of Lords, 3 June 2013, Column GC. 135.

The European Union’s foreign policies 493 widely held assumptions about the Union’s power and also tried to put what can be achieved by the Union as an actor in the broader context. The evolution and history of the development of the CFSP marked the Union out as a different type of power but this was due more to necessity and probably less as a matter of conviction. The Union as a power has continually evolved, as has the environment in which it operates. As with all actors, it has had to change and react. Expectations on the Union as an actor have more often than not been created by the lofty rhetoric of the Union’s institutions and spokespersons. At times it seems these are made to help justify some of the Union’s activities – in part to legitimize it and them internally and externally. Decisions and actions, however, are ultimately driven by interests and not according to rhetoric – thus, if the yardstick is what the Union ‘says’ then the Union will almost always fall short of that. ‘Expectations’, as discussed, is not the appropriate term for areas of policy discretion and if instead we use ‘desire’ or ‘hope’, which are more accurate in many contexts, as to what the Union may do, it gives the Union a much more even balance sheet but does not mark it out as the principled power it has claimed to be in the past but a more ‘pragmatic’ one. Desire or hope are much more subjective than an expectation and thus a less powerful basis for critique of the Union’s policies and activities. Notwithstanding the shortcomings with the term ‘expectations’, it is clear that expectations of the Union have been lowered since the adoption of the Lisbon Treaty. Prior to the adoption of the Lisbon Treaty, the mood was much more optimistic than it is now. Although there were many pressing problems, the Union and its Member States were broadly speaking less fractured between themselves. This is particularly so since the onset of the global financial crisis and more recently the migrant crisis, which have both led to substantial tensions between Member States. The different mood is unmistakable when contrasting the 2003 Security Strategy with the 2016 Global Strategy. Since the adoption of the Lisbon Treaty, the Union institutions have sought to lower expectations of it and the Union now has enough of a track record for others to have a fair idea of what the Union may or may not do in a given context. Looking forward, a key issue for the Union as a global actor will be the UK’s pending exit from the Union. It is simply unclear what arrangements the UK and the remaining 27 Member States will reach on most matters but there is no doubt that the UK will no longer play any active role in the formulation of the CFSP. The UK will, however, be an important external influence on the formulation of the CFSP. There is also no doubt that some aspects of foreign policy collaboration, such as military cooperation between the UK and France, will continue. The UK’s interests and perspectives on global matters align more with its continental European neighbours than they do with any other state or group of states, including the USA, notwithstanding the so-called ‘special relationship’. This may change but it will probably take time as the UK adjusts to the new context. The UK’s leaving the Union will have a number of implications for the Union as a global actor and its actions. First, the UK leaving will permit the remaining Member States to work more closely together on some internal Union matters which relate to its global role, such as representation in international fora and the functioning and role of the EEAS, where the UK has been rather recalcitrant. In external matters, the UK has been at times a wayward partner but its reputation as ‘awkward’ is not entirely deserved as the UK’s record is decidedly mixed. There is also no doubt that other Member States have at

494 Research handbook on the EU’s common foreign and security policy times decided to not stringently voice their objections to proposals, knowing full well that the UK will do so. Whether the UK’s leaving will compel such states to entrench their positions on such matters in the future or whether they are more likely to agree with the majority, in the absence of a powerful dissenting voice, remains to be seen. Thus while the UK’s leaving the Union may lead to greater agreement between the Member States on certain matters related to the CFSP, how much practical difference this will make across the board is extremely difficult to discern at this point in time. Second, as a non-Member State of the Union, the UK will further complicate understanding of ‘European foreign policy’ in the broader context. It is important to bear in mind, as noted above, that the Union is not well understood as an actor in the wider world and reference is normally made back to the Member States. Where the UK and EU align their positions and are acting unilaterally but in concert, for example in the adoption of sanctions, it will lead to an ‘EU+1’ scenario. In the United Nations and other multilateral fora, the EU routinely seeks to adopt positions in association with as many ‘like-minded’ states as possible; human rights abuses in third states are a good example. In such a situation it will lead to an approach which can be considered as the ‘EU+ others’ – which includes the UK among the latter. In both these scenarios, the UK does not have a conflicting foreign policy approach on the particular matter at hand, so it will not be detrimental to the EU’s approach. Where the UK has an approach in conflict with that of the common approach of the EU Member States, however, then the situation changes. On the one hand, it may mean that a more coherent EU foreign policy position can be adopted than would have been possible prior to the UK leaving the Union. On the other hand, as there are distinct UK and Union approaches this will in turn lead to the external perception of a more confused ‘European approach’ as there is a clear variance between key European states. Third, the Union will undeniably lose significant power as an actor in the global context, no matter how that is defined. The UK has a very impressive and extensive set of privileges, membership of the P5 and G7, extensive global networks and, in terms of soft power, British higher education and the English language to name but a few. These will, depending upon the UK’s future foreign policy orientation, be used by the UK to promote its interests and priorities and at times these will undeniably compete with those of the Union Member States. Thus, the Union will have an important global state which will at times act as a (new) competitor. Acting on its own, the UK will not be able to compete as an equal with China or the USA, for example, but its membership of and prerogatives in various fora do give it the power to be very awkward for the Union; the internal EU trade-offs of the past will no longer be possible as far as the UK is concerned. To take an example: suppose in the context of Iranian sanctions, if the UK were not a Member State of the EU and refused to adopt measures relating to that country (such as those adopted by the EU) which were not imposed by the Security Council – where the UK has in any case a veto. This would undermine to a greater or lesser extent the efforts of the EU, as the UK will be one of a few possible sources for Iran of certain technologies or goods and also a possible important market for oil and gas. It is also likely to be the case that initiatives such as the E3 in the case of the Iranian nuclear agreement will in the future become diplomatically more contentious within the EU if the UK acts in concert with only Germany and France, for example. Italy – often excluded by the ‘Big Three’ in the past, much to its chagrin – will strongly

The European Union’s foreign policies 495 press to become part of any such inner circle. Others may also seek to do so. The larger the ‘inner circle’, however, the more varied the interests and positions that have to be aligned to make progress. Fourth, internal power where it relates to the Union as a global actor will in the context of, in particular, the United Nations gravitate towards France. France’s global privileges, especially on the Security Council, will be unmatched in the post-Brexit EU, making it the first among equals, and the French have long channelled their foreign policy priorities through the CFSP. The Franco-German axis will be increasingly critical and have to provide greater leadership and direction, and without the British that will probably be easier. French and German interests and approaches do, however, differ substantially on various external matters. Their differences of approach in the context of the break-up of the former Yugoslavia, the Palestinian–Israeli dispute and the military intervention in Libya in 2011 are just three examples. Nevertheless, even with a degree of gravitation to France and the leaving of the UK, the Union will not be able to come to a clear and strong position on numerous matters of high politics. The refusal of some EU Member States to recognize Kosovo, for example, has nothing to do with anything other than narrowly defined national interests. Spain is not about to be cajoled into recognizing Kosovo anytime soon. The CFSP in matters of high politics will still accentuate areas of difference as opposed to the much larger scope of agreement. Some of the above may or may not come to pass. What is certain, however, is that the Union and its foreign policies will have to continue to develop in an evolving internal and external environment. A more unpredictable and volatile geopolitical order will pose further challenges and the Union must be able to exercise its power and influence effectively if it is to uphold the interests of its Member States. Whether it will be able to do so remains to be seen but both expectations and capabilities need to be fundamentally recalibrated to determine more accurately than in the past whether the Union is doing so.

Conclusions Steven Blockmans and Panos Koutrakos

As set out in our Introduction, the objectives of this Research Handbook on the Common Foreign and Security Policy were as follows: + to establish and examine the intrinsic links (institutional, procedural, substantive) between the EU’s legal rules and procedures and the deeply politicized context within which these are applied in the evolving external action of the Union; + to identify legal challenges to the implementation of an integrated approach to EU external action and to gauge their implications for both the legal and policy frameworks of the CFSP; + to analyse the extent to which the legal framework and practice in CFSP is governed by flexibility and contributes to the efficient and effective conduct of the Union’s external action; + to identify new trends emerging from the practice of CFSP. This chapter brings together the threads that underpin the contributions to this Research Handbook, and identifies the main points that emerge from their analysis.

1. INTRINSIC LINKS BETWEEN LAW AND POLICY 1.1 Substantive Level In spite of the apparent continuity of the Maastricht Treaty’s ‘pillared’ dichotomy between the CFSP (together with the neighbourhood clause based in the TEU) and all other substantive external policy fields based in the TFEU, the place of the CFSP within the EU’s constitutional structure has changed significantly. This is a result of the Lisbon Treaty, which bestowed a single legal personality on the Union, founded on two treaties which are closely bound together and of equal legal value. The provisions on external action span the two treaties and, although the main provisions on the CFSP are found in the TEU, some procedural provisions, in particular the procedural rules for entering into external agreements, are found in the TFEU. At the substantive level, the structural reorganization of the objectives of external action aimed to not only introduce coherence in what the Union would do in the world, but also to reduce the scope for competence disputes in cross-over policy areas. For the first time, the Union is given a single external mandate in Article 3(5) TEU encompassing all the EU’s ‘relations with the wider world’. Not only do the general provisions governing the Union’s external principles, objectives and strategy (in particular Articles 21 and 22 TEU) apply equally to the CFSP and CSDP (Article 23 496

Conclusions 497 TEU), so too do the general provisions contained in the TFEU, such as environmental protection (Article 11 TFEU), transparency (Article 15 TFEU) and the protection of personal data (Article 16 TFEU), as Marise Cremona argues in her contribution to this volume. Within this unified system, the CFSP is for the first time defined as a distinct ‘competence’ of the EU (Article 24(1) TEU and Article 2(4) TFEU). Its scope is potentially very wide as it may cover ‘all areas of foreign policy and all questions relating to the Union’s security’ (Article 24(1) 1st subparagraph TEU). The integration of the CFSP into the overall constitutional architecture has thus raised questions as to the nature of the competence granted to the Union, its scope, the specific rules applicable, and its relationship with other policy fields. Cremona argues that the CFSP has been assimilated into the general Treaty framework and the overall constitutional structure of the Union, as evidenced by the application to the CFSP of the general Treaty principles and objectives. The ‘specific rules and procedures’ applied to the CFSP (Article 24(1) TEU) are significant but do not take the CFSP out of the single legal order of the EU; as exceptions, they are to be interpreted strictly and they apply only within the strict confines of the CFSP. Although it is subject to exceptional procedural and institutional rules, the CFSP as a policy field is neither residual (to be used only when other competences do not apply) nor exceptional. It has two different functions. It is, on the one hand, a policy field in its own right with its own specific actions, such as arms control, counter-terrorism and civilian and military missions – actions which need to be coherent with other elements of EU external action. On the other hand, the CFSP also represents the means by which the EU defines its overall foreign policy strategies, bringing different sectoral policies such as trade, development, environment and energy under a coherent umbrella. The dual strategic function was made possible by the revision of Article 40 TEU, recast in terms of institutional balance and procedural specificity rather than CFSP ‘encroachment’.1 There are no signs that the Court is attempting to limit the scope of the CFSP, but defining it is not straightforward and, as a result, a legal challenge to the choice of a CFSP legal basis, once made, is not easy. CFSP objectives as defined by the Treaties are coterminous with the general external objectives of Union external action, and the definition of specific CFSP objectives is thus a matter for the political institutions, in particular the European Council and the European External Action Service (EEAS), as well as the Member States. The objectives of a specific measure may be used in their context to identify the appropriate use of a CFSP legal basis but cannot provide real limits to CFSP as a policy field. These limits are to be found in the instruments at the EU’s disposal, as well as Member States’ capabilities. It is thus a policy with great potential scope and power, but heavily dependent on the engagement of the Member States and the forging of political consensus. Nevertheless, as Stephan Marquardt points out, the CFSP is a policy that ‘belongs’ to the EU and is separate from the national foreign policies of the Member States. In spite of the qualifier ‘common’, the CFSP is thus not a mere intergovernmental process between the Member States, as is sometimes still believed. This is confirmed by the obligation of loyal cooperation on the part of the Member States, which must ‘support 1

See Case C-91/05 Commission v Council EU:C:2008:288.

498 Research handbook on the EU’s common foreign and security policy the Union’s external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity’ (Article 24(3) 1st paragraph TEU). This raises the question of the relation between the CFSP and the Member States’ own foreign policies. Clearly, due to the specific nature of the CFSP, the principle of pre-emption cannot apply, i.e. the Member States do not lose their sovereign power to implement their foreign policies when the EU defines its CFSP. The CFSP is not a case of shared competence. Rather, the respective competences of the EU and Member States in matters of foreign policy can be qualified as parallel competences, the actions of the Member States only being constrained by their duty of loyalty. As long as their actions do not contradict or negatively affect EU measures taken in relation to the same issue, they may in fact prove to be complementary. In the end, the EU does not have any ‘exclusivity’ in dealing with regional or global foreign policy and security issues. In the absence, however, of any jurisdiction of the Court of Justice of the EU (CJEU) in the area, instances of ‘disloyal’ behaviour by Member States (e.g. in relation to EU statements to be delivered at international organizations where, despite EU positions agreed in Brussels, some Member States on the ground broke ranks and prevented the EU from expressing a unified position) are to be addressed by the High Representative in an informal manner.2 In this evolving context, the role of the Court of Justice has become more prominent. This remarkable development is not only due to the Member States’ decision to partially lift the ‘judicial immunity’ from which the CFSP has traditionally benefited. As claimed by Cremona, Marquardt and several other contributors to this volume, this is also the result of the incremental integration of the policy in an increasingly constitutionalized EU legal order. That said, there is no reason to overstate the point. The scope of the Court’s jurisdiction remains limited and the implications of its rapidly expanding case law unclear. While there is no doubt as to the Court’s jurisdiction to patrol the border line between the CFSP and the other strands of EU external action, it is still unclear whether the integrated nature of the Union’s external action requires the Court to exercise its powers on substantive issues with a CFSP policy dimension too. If anything, the case law of the Court has consistently underlined that, in the absence of rules and procedures specific to the CFSP, the general rules apply. The Court’s jurisdiction is, therefore, limited to acts that are not of a ‘pure’ CFSP nature (i.e. based on Title V, Chapter 2 TEU).3 This leaves a systemic gap in the EU-level system of judicial remedies unplugged, as noted by the Court itself.4 In their contribution to this volume, Christophe Hillion and Ramses Wessel discuss the Court’s approach to the system of judicial control over the CFSP and provide a comprehensive picture of possibilities and pitfalls. While they acknowledge that the Court’s suspicion in relation to alternative judicial oversight may be legitimate, they 2 The issue of the lack of unity among Member States in international fora was raised by the HR at an informal gathering of foreign ministers on 7–8 September 2017. 3 See the Opinion of Advocate General Wathelet in Case C-72/15 Rosneft Oil Company OJSC v Her Majesty’s Treasury ECLI:EU:C:2016:381, paras 42–46. 4 Opinion 2/13 of the Court of 18 December 2014: Accession by the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms ECLI:EU: C:2014:2454, para 252: ‘as EU law now stands, certain acts adopted in the context of the CFSP fall outside the ambit of judicial review by the Court of Justice’.

Conclusions 499 argue that the acknowledged gaps in the EU system of judicial remedies in relation to the CFSP ought to be filled for the Union to meet the requirements of the rule of law.5 They claim that the incremental acknowledgement of the Court’s jurisdiction in relation to CFSP might not suffice, which should as a result leave space for complementary solutions. They ask whether and, if so, to what extent remaining gaps in the Court’s control can be filled by involving other courts, at different levels. For the CJEU, involvement of international courts (or even domestic courts in third states) entails many risks in relation to safeguarding the autonomy of EU law. The authors qualify this as ‘the bad’ option. This was considered as an obstacle to the Union’s accession to the ECHR, even if it could have filled at least that judicial gap. Similarly, while acknowledging that the role of Member States’ courts is not in itself a bad idea as it is even supported by the Treaties, Hillion and Wessel observe that it is generally seen as an unattractive substitute (‘the ugly’) for the harmonizing role of the Court of Justice itself. ‘The good’ scenario can be deduced from the fact that the CFSP is part and parcel of the EU’s legal order. In view of Article 344 TFEU, the Court itself has suggested that it should exercise judicial control over the CFSP. In view of the existing constitutional gap, this position should be understood as a request addressed to the Masters of the Treaties to grant the Court full judicial oversight over the CFSP and thus suppress the current derogatory provisions of Articles 24(1) TEU and 275 TFEU.6 Given the current state of EU law, the best the Court can do, according to the authors, is to elaborate on its narrowly defined CFSP-related case law and hope to meet the standards of Article 47 of the EU Charter of Fundamental Rights without circumventing the limits set out by the Masters of the Treaties. In such a scenario, the latter may come to realize that the Court of Justice is trustworthy in the context of the CFSP, the integrity of which it scrupulously protects, and that it is capable of exercising judicial control over the EU foreign policy without overshadowing the authority of the political protagonists. That said, the Court of Justice may have to accept that, in the current system, an additional role for other judicatures must be acknowledged. While a substantial role for ‘outside’ courts may be difficult to square with Article 344 TFEU, the contrary holds true for domestic courts in the EU Member States, which, pursuant to Article 19(1) TEU, are also guardians of the EU legal order. 1.2 Institutional Level At the institutional level, the dual role for the CFSP (i.e. a policy in its own right and an element defining EU external action writ large) is encapsulated in the office of High Representative for Foreign Affairs and Security Policy (chair of the Foreign Affairs Council, a Vice-President of the Commission and chair of the Commissioners’ Group on External Action) and the EEAS. It has found expression in the 2016 ‘Global

5

As spelled out in Case 294/83 Les Verts v European Parliament EU:C:1986:166. Hillion and Wessel point in this respect to the intervention of President of the CJEU Lenaerts at the ICON-S Conference 2016, Day 3, Plenary Session 3: ‘Judicial Interview and Dialogue’: https://www.youtube.com/watch?v=_Vrjbte9Yfg. 6

500 Research handbook on the EU’s common foreign and security policy Strategy for the European Union’s Foreign and Security Policy’,7 which takes an overall foreign policy perspective while making frequent reference to sectoral fields of action. The expectation that the CFSP would offer leadership and policy direction despite relatively weaker institutional structures was one of the imbalances in the Lisbon Treaty architecture, and its ability to do so, while improving, is still in question. The High Representative (HR) and the EEAS have been settling into place while the Commission and the General Secretariat of the Council have been trying to find their way in the new modus operandi in a way which would enable them to make up for any loss/sharing of personnel and expertise. The European Parliament has emerged as a confident, ambitious and active player, while new inter-institutional arrangements have been introduced in order to manage the interactions between the relevant actors. However, the CFSP still operates as if it were an intergovernmental process controlled by the Member States. As yet, the possibility of qualified majority voting (QMV) in the CFSP has never been used. Furthermore, in line with the prerogatives of the European Council, the major strategic decisions in the CFSP are taken at the level of the Heads of State and Government, acting by consensus unless otherwise provided in the Treaties (Article 15(4) TEU). Yet, in the light of practice with the ad hoc policy nature of the CFSP, Stephan Marquardt cautiously concludes that the EU’s efficiency as an international actor is being increased. This is tangible in the sphere of CSDP, with the gradual upscaling of CSDP missions and operations, the creation of a permanent military headquarters within the EEAS (so far only for non-executive missions), a new European fund for defence research and capability development, and the launch of permanent structured cooperation (PESCO, provided for in Article 46 TEU) between 25 Member States willing to subject their defence budgets and planning to a coordinated annual review. This demonstrates that the new instruments and procedures have been introduced to allow the EU to be a global actor in foreign policy and security matters, in fulfilment of the EU’s objective to contribute to the maintenance of international peace and security (Article 21(2)(c) TEU). Similarly, more continuity in external representation has been provided by replacing the rotating Presidency of the Council with the permanent chairmanship by the HR, the creation of the EEAS (‘hybrid’ in composition) and the upgrading of the Commission’s representations abroad to approximately 140 EU delegations around the world. Then again, as Hylke Dijkstra and Peter Van Elsuwege point out, the latter has happened in an uneven way, leaving potential untapped. This exposes a more general trait of EU external action: in the realm of CFSP, the EU is still represented on the international stage by different actors and in different constellations. This goes not only for highly visible ad hoc attempts at conflict resolution (e.g. ‘E3+3’ talks with Iran about nuclear non-proliferation; ‘Normandy format’ negotiations with Russia and Ukraine for the conflict in Donbas), but also for permanent forms of diplomacy. Within international organizations, for instance, EU representation can vary even across different committees. In their chapter, Dijkstra and Van Elsuwege analyse three expressions of EU external representation in the area of CFSP: (i) multilateral representation of the EU in 7 ‘Shared Vision, Common Action: A Stronger Europe’, June 2016, available at https:// eeas.europa.eu/archives/docs/top_stories/pdf/eugs_review_web.pdf.

Conclusions 501 international organizations and fora (e.g. UN, NATO, OSCE); (ii) bilateral representation of the EU in other countries (cf. locations where all or some Member States are represented); and (iii) ad hoc representation and mediation attempts by the EU in international and regional conflicts (e.g. the EU-facilitated dialogue between Serbia and Kosovo). Based on their empirical research, the authors conclude that the Treaty of Lisbon has created new challenges for external representation across the world, leaving the EU vulnerable to individual Member States making their institutional choices to serve national interests or meet external conditions – for instance by going outside the EU framework, by preventing ‘representation creep’ by the HR, or by behaving disloyally towards the EU (as was the case following the entry into force of the Treaty of Lisbon in New York and more recently in the Human Rights Council in Geneva).8 As a result, the EU, as a non-state actor, remains the odd one out in a world of sovereign states and this significantly conditions its ability to externally represent itself. Regarding the question of whether the CFSP is better integrated and coordinated with the ‘traditional’ external relations instruments, the jury is also still out. On the one hand, the active use by the HR of her ‘VP hat’ has had a number of positive effects, as shown in the adoption of joint communications, strategic coordination in the Commissioners’ Group of External Action, more efficient decision-making in the area of sanctions, and the negotiation of international agreements. However, post-Lisbon institutional practice has seen new turf wars about competence allocation. On the side of the Commission, there is a growing tendency to emphasize its financial responsibilities in the CFSP to the detriment of the right of initiative of the HR. Marquardt explains that this is the result of the loss of institutional power of the Commission in the CFSP (the Commission no longer being formally ‘fully associated’ in the CFSP), even if the HR is also a member of the Commission; the latter’s services are closely associated with the preparation of HR initiatives or proposals in the CFSP; and the Commission’s Foreign Policy Instruments (FPI) service is directly involved in the CFSP, placed under the authority of the HR in her capacity as VP, and co-located with the EEAS. Hence, while it can be observed that the HR definitely has used her role as VP to the benefit of more coordination between different non-CFSP EU instruments, her role in ensuring more coherence between CFSP instruments, in particular CSDP missions, and other external assistance instruments, has been less clear. The evidence gathered from the chapters in Parts B and C of this volume corroborates the finding that the implementation of the so-called ‘integrated approach’9 in the EU’s response to international crises has not yet fully materialized. This is still largely due to the fact that CFSP decision-making procedures remain in the hands of the Council and Political and Security Committee (PSC) and thus the Member States, 8

While the concerns raised in New York by one Member State related to the horizontal issues of delimitation of competences between the EU and its Member States in matters of foreign policy and their external representation, the more recent instances of disunity in Geneva were linked to diverging positions on the substance of the matter, notably regarding Palestine. 9 This concept was introduced by the EU’s Global Strategy on Foreign and Security Policy (cf. part 3.3: ‘An integrated approach to conflicts and crises’). In substance, this concept is largely identical to the previous concept of the ‘comprehensive approach’ of the EU in relation to external conflicts and crises (cf. Council Conclusions of 12 May 2014, welcoming the Joint HR/Commission communication setting out the approach, doc. 9542/14, pp. 17–21).

502 Research handbook on the EU’s common foreign and security policy whereas the Commission has a rather wide measure of discretion in deciding on the priorities in the implementation of EU assistance and cooperation instruments. As a result, on the ground, it may sometimes be difficult to perceive a coherent approach between different EU actors and instruments, even within the CFSP.

2. COMMON SECURITY AND DEFENCE POLICY 2.1 Civilian Missions and Military Operations Since the launch of the CSDP in 1999,10 the EU has developed the capabilities to plan and carry out a wide range of ‘Petersberg tasks’ (Article 42 TEU), from border monitoring in the Eastern neighbourhood to fighting terrorist groups in the Sahel. Progress in this area has been rapid since the first deployments in 2003. Almost two-thirds of the 35 EU missions and operations launched so far have been civilian in nature or have had a civilian component. According to Ana Juncos, this chimes well with the traditionally ‘civilian’ image of the EU on the international stage and a general trend whereby international intervention has become more focused on long-term support and capacity-building rather than short-term external imposition. In her chapter, she finds that the civilian dimension of CSDP has made significant progress in terms of institutionalization and operationalization. In particular, the reforms brought forward by the Lisbon Treaty, including the establishment of the double-hatted HR, have opened the way for a more flexible approach and more interactions with Commission instruments. However, institutional reforms alone have not been sufficient to mobilize the necessary political will and resources to make the EU’s ambitions in civilian crisis management a reality. Other factors, such as increasing levels of instability in the neighbourhood (including the conflict in Ukraine and the refugee crisis), compounded by a ‘poly-crisis’ affecting the EU itself (manifested in, e.g., the economic and eurodebt crisis, Brexit), have had more of an impact on the development of this policy – as evidenced in the 2016 Global Strategy and the Implementation Plan for Security and Defence (IPSD).11 While these policy papers cannot conceal the intergovernmental, bureaucratic and local political contestation which have affected the implementation of civilian CSDP, Juncos believes that it will continue to be a key instrument in the EU’s security toolbox. After all, the ability to combine civilian and military means gives the EU a comparative advantage over other security organizations such as NATO. Moreover, civilian crisis management missions help promote the EU’s values and norms beyond its borders by promoting and strengthening the rule of law, human rights and democracy, which, more often than not, require a long-term and non-executive approach. Finally, the EU’s missions have shown a degree of flexibility to adapt to new security challenges, even if this flexibility has 10 Prior to the Lisbon Treaty, the CSDP was referred to as the European Security and Defence Policy (ESDP); for the sake of consistency, the term CSDP is used throughout this chapter. 11 See ‘Implementation Plan on Security and Defence’ (14392/16, Brussels, 14 November 2016).

Conclusions 503 been limited by institutional constraints to an integrated approach with, for instance, justice and home affairs instruments. The future of civilian CSDP will be determined by how well the EU addresses challenges such as these and, in particular, the need to bridge the infamous ‘capabilities–expectations gap’ from which it has long suffered. Although expectations were lowered after the entry into force of the Lisbon Treaty, an increasing sense of insecurity among European citizens and their authorities could well provide the necessary impetus to overcome (intergovernmental, bureaucratic and domestic) political hurdles and improve the recruitment and training of civilian personnel serving in CSDP missions. As the EU develops a more ‘integrated approach’ to crisis response in an evolving international security context, a number of operational, institutional and legal issues present themselves also with regard to the political objectives and nature of CSDP military operations. Furthermore, as Daniel Fiott observes, CSDP military operations occur in an evolving politico-military context in which the military approach of the EU is increasingly tailored to crisis situations. Not only have non-EU, ad hoc operations such as those in Iraq and Afghanistan blunted the appetite for large-scale deployments, but there is also recognition on the part of military planners that to simply address the symptoms of crises is not strategically sustainable. What is termed the ‘integrated approach’ in EU parlance is, when translated into politico-military planning, a desire to not see any backsliding into crises or instability once a sustainable level of security has been achieved. Looking at the intersection of the legal and operational parameters in which military operations under the CSDP are deployed, Fiott’s contribution to this volume focuses on three broad challenges. The first challenge relates to ‘mission creep’. Early lessons from Operation Sophia show how the original political objectives for deployment (i.e. reconnaissance and the disruption of trafficker networks) are increasingly giving way to new operational needs (i.e. less about littoral operations near Libya and more about solace operations). In this respect, there are limitations on how far the EU can draw on lessons learned from other military operations when the politico-strategic circumstances are unique to each deployment. The second challenge relates to the available funding and legal issues surrounding the deployment of CSDP operations. In this context, the chapter looks at some of the challenges facing the EU’s Training Missions (EUTMs) and what a lack of funding and legal clarity for such operations means in terms of mission effectiveness, lessons learned and the comprehensive approach. While any ‘train and equip’ operation must navigate the delicate line between security capacity-building and humanitarian/ development principles, tensions between tactical necessity (e.g. paying for the equipment that forces in third countries require in order to train) and legal and political realities (such as restrictions on the use of EU funds for military purposes) have posed a dilemma for the EU’s military engagement in third countries. Fiott finds that in recent years less emphasis has been placed on military deployments for peacekeeping or peacemaking purposes and more on security sector reform and capacity-building. The less the EU deploys for traditional military deployments, the more it will have to craft innovative responses to how it uses development and military tools together. The final challenge relates to how geopolitical and strategic shifts affect the nature and remit of EU institutions involved in the deployment of CSDP military operations.

504 Research handbook on the EU’s common foreign and security policy The examples of France’s invocation of Article 42(7) and the UK’s decision to leave the EU have shown how institutions are responsive to major political events, especially when they have a direct or indirect bearing on the CSDP. There still exists a delicate relationship between the EU institutions and the Member States as providers of security and defence. In the case of the invocation of the mutual assistance clause, despite the fact that EU institutions were not formally included in the call to provide assistance, it soon became clear that these institutions would bring added value to Member State efforts. As for the UK’s decision to leave the EU, once forbidden initiatives re-emerged with renewed vigour. The EU has now established a single command and control centre for some of its military operations. In the meantime, 25 Member States are implementing measures to permanently structure their defence cooperation (PESCO) on the basis of Article 46 TEU. Time will tell how far these various initiatives will enhance CSDP military operations. What is apparent is that the CSDP does not occur in a political or strategic vacuum. CSDP missions and operations occur in a context in which the security landscape is increasingly demanding. Accidents may happen. In his chapter, Joni Heliskoski addresses questions of responsibility and liability flowing from civilian and military crisis management operations conducted in the context of multi-level governance (UN, NATO, EU, Member States, third countries) and legal frameworks (public international law, EU law as well as the domestic law of the Member States). As regards international responsibility and non-contractual liability vis-à-vis third parties in particular, the claims are as a rule settled amicably through ex gratia payments. So far, relatively few cases have ended up either before a claims commission, the CJEU12 or domestic courts of a Member State. In spite of the limited scope of the existing judicial practice, some conclusions on the question of the distribution of responsibility or liability as between the EU and its Member States may nonetheless be drawn from both the institutional practice of the CSDP and the case law at hand. First, having regard to the chain of command designed for CSDP operations, running from the level of the Council right down to the Head of Mission or the Operation Commander, the CJEU is inclined to treat the conduct of such operations as being attributable to the EU in its own right.13 Coupled with the Court’s narrow understanding of the limits of its jurisdiction in the field of the CFSP, the case law suggests that there would exist at least some legal remedies available before the EU courts even in matters relating to operational activity of the CFSP. Secondly, for those cases where no remedies before the CJEU exist (either as a consequence of the attribution of particular conduct to a Member State or in view of the limitations of the Court’s jurisdiction specific to the CFSP), the Court seems to acknowledge that remedies may still exist before the domestic courts of the Member States. German practice concerning the surrender of pirates provides for an illustration of how the liability of a Member State for an action related to the conduct of a CFSP operation may effectively be charged before domestic courts. In that regard, one should also recall the possibility of an individual bringing a case against the given Member State before the ECtHR. 12 13

See, e.g., Case C-439/13P Elitaliana v Council and Commission ECLI:EU:C:2015:753. Case C-455/14P H v Council and Commission ECLI:EU:C:2016:569.

Conclusions 505 As regards, thirdly, the question of an appropriate rule of attribution under public international law in general and the Draft Articles on the Responsibility of International Organizations (DARIO) of the International Law Commission (ILC) in particular, the manner in which that question is treated in the case law of the CJEU appears to place less weight upon the actual command and control over particular conduct. The focus is placed more on the formal structure of the chain of command laid down in generalized fashion for all CSDP operations. This, Heliskoski submits, could be interpreted as speaking for the treatment of such operations as de facto organs of the EU. The question of attribution of conduct as between the EU and its Member States remains relevant at the level of public international law, if only because CSDP operations do not possess international legal personality of their own and, as a corollary, they may not be regarded as being internationally responsible in their own right. The same, however, may not be said about the EU or the Member States. Heliskoski suggests that, within the latter’s legal orders, there may be other entities capable of incurring the requisite liability. Indeed, civilian CSDP missions have recently been endowed with a legal personality of their own, including the capacity to be a party to legal proceedings before courts of law. In relation to military operations, claims for compensation may be directed against the EU’s Athena funding mechanism, possibly before a domestic court. Consequently, redress may be obtained without necessarily having to address the question of whether particular conduct undertaken within the framework of a CSDP operation should, in the final analysis, be attributed to the EU or (one or more of) the Member States. 2.2 Capabilities Recent initiatives stemming from the EU Global Strategy and Brexit have renewed political determination to provide for Europe’s security and defence in a volatile world. The Implementation Plan on Security and Defence is the first of its kind and more is under way to implement other aspects of the Global Strategy, including PESCO for capability build-up and operational deployment; a coordinated annual review on defence spending (CARD); and a European Defence Fund (EDF) for research, development and acquisition of new capabilities. Using a dynamic concept that not only includes identifiable and quantifiable ‘assets’, but also the ability to improve the use of assets through training and the incorporation of lessons learned from field use, the late Simon Duke assessed the EU’s capabilities in CSDP. In doing so, he is conscious of the principle of Member States’ ‘single set of forces’ (which can be used in various frameworks) and the question to what extent subsidiarity should apply to crisis scenarios. The author argues that the prevailing mindsets, which are conditioned to think in terms of national security and defence, as well as legal barriers and conditions applying to the use of force, have proven significant impediments in this area. It is often only after resource sufficiency is satisfied at the national level that thoughts (might) turn to the provision of collective capabilities at the European level. This is an imperfect state of affairs since it leads, in circular motion, back to the very surpluses, duplication and shortcomings that CSDP has been battling since its inception. It remains to be seen whether the newly established EDF, which – from 2020 onwards (i.e. under a post-Brexit multi-annual

506 Research handbook on the EU’s common foreign and security policy financial framework of the EU) – would offer €0.5 billion or more per annum to facilitate research, and an additional €1 billion or more per annum for development and acquisition, will attain its core goal of helping the Member States to spend money more efficiently, reduce duplications in spending and get better value for money. The existence of high levels of duplication of assets when it comes to larger-scale and more expensive items, like destroyers or fighter aircraft, should not be read as an indictment of the more recent initiatives since the development of capabilities, or changes to existing ones, demands a longer-term perspective of a decade or more. This, typically, represents the horizon for the development and production of the higherticket military capabilities. Given the relatively recent development of CSDP many of the capabilities shortfalls still exist. Reliance upon one of the bigger Member States (a so-called ‘framework nation’) is open to charges by smaller Member States that those missions or operations that are successfully adopted often reflect not only the will, but also the capabilities of the larger members (cf. the French lead in military operations in the Democratic Republic of the Congo and Mali). From a planning perspective, it is obviously difficult to plan for timely interventions when there is a fundamental uncertainty about what and who is available. The response to this has been to advocate various forms of standing or on-call capabilities, as well as various types of sharing, pooling and joint development of platforms. It is striking though how little has actually changed since the first ‘headline goals’ were adopted. It is up to the Member States to deliver the capabilities to underpin the new Level of Ambition contained in the EU Global Strategy. Duke warned that if the EU27, without the UK’s sizeable military capabilities and know-how, fail to do so it will impact not only on Europe’s security and defence, but also perhaps upon the progression of European integration in other areas. As the build-up of defence capabilities is back, so too is the proliferation of weapons of mass destruction (WMD) present a challenge of immense difficulty, complexity and importance where the EU has assumed an increasingly important role. Efforts by the EU to coordinate policies of Member States and to take positive action on the non-proliferation of WMD are long-standing, multifaceted and for the most part conducted in an integrated fashion. The primary purpose of the work is to reinforce the international agreements which control non-proliferation of WMD – both generally and by concentrating on states of significant concern. Eileen Denza finds that the EU has been effective in using the wide range of tools at its disposal to achieve low-key successes. She points to efforts geared towards improving safeguards and export controls in states which may not appear obvious proliferators but where weak administrative systems make them a useful transit point for suspect items. Similarly, the systematic inclusion of WMD clauses in EU and Member State agreements may appear to have been of limited value because high-risk states have been unwilling to subscribe to them, but the number of subscribing states has built up a pattern of awareness in foreign ministries of the multilateral instruments as well as a critical mass of general compliance with their terms. Substantial progress has been made to halting the testing of nuclear weapons, through the Partial Test Ban Treaty, the Comprehensive Test Ban Treaty (CTBT) and the general moratorium now observed by all states with the single exception of North Korea. Denza argues that to persuade India and Pakistan jointly to become parties to

Conclusions 507 the CTBT, and the US to ratify it, is an objective where the EU might by giving the issue greater prominence and political investment make a contribution – even if it is unlikely that the Trump administration will make this a priority. There can, however, be no doubt that the deployment on behalf of the EU of a highly skilled and experienced arms control diplomat has produced effective results in this field. The multilateral settlement reached with Iran – with its effective system of monitoring and safeguards against deception – shows the value of the EU’s willingness to persist with diplomatic negotiations even in the face of apparent rejection. On the one hand, the EU’s record in the context of non-proliferation efforts shows how much the scope of EU energy policy has expanded from its internal market liberalization origins in the European Coal and Steel Community and EURATOM. On the other hand, the case study shows that sanctions are an instrument worth deploying to coerce third states into compliance with customary international law on nuclear non-proliferation. However, to succeed, sanctions need time to attain their intended political effect and have to be deployed in tandem with a raft of incentives. The EU has the advantage over a single state of a deep toolbox of potential sticks and carrots and of uniformity of enforcement, which makes diversion more difficult, if not impossible. Part C of the volume unpacks the particularities of the operationalization of the CFSP in an integrated approach to a wide range of other policies covered by the EU’s external action.

3. INTEGRATED APPROACH As indicated above, there is a world beyond cross-border coordination and European integration in the field of energy. The CFSP component to EU energy policy has in recent years become more prominent due to European dependence on Russia and the need to manage external security and supply risks (of imported natural gas in particular) in Europe’s neighbourhood. At the same time, CFSP has become more important in coordinating the variations in current EU Member States’ attitudes to both internal competition policy and the extra-territorial application thereof. Theodore Konstadinides and Despoina Mantzari observe that, in its internal and external policy context, energy policy has gradually obtained a coercive character as the EU is looking not only for reliable and sustainable energy partners, but also for partners which can comply with its regulatory framework. In order to ensure compliance, the EU has sought to become able to impose rigorous sanctions against both its Member States (e.g. for negotiating supply contracts without consulting the EU) as well as third countries (e.g. against external partners such as Russia for its destabilization of Ukraine). The authors argue that a strong link has grown between securitization and competitiveness in EU energy policy, thus compensating for the lack of a CFSP legal basis in the field of energy. Both the securitization of EU energy policy and law and the CFSP dimension of the internal market have helped to build rules and procedures for an integrated approach to external action in the field of energy. The EU’s third energy package and its Gazprom clause constitute examples where the EU not only confirms its presence as a global economic actor, but also emerges as a disciplinarian in relation to third countries. Indeed, the disciplinary influence of the restrictive measures adopted

508 Research handbook on the EU’s common foreign and security policy under the TEU against Russia in conjunction with competition rules under the TFEU are bound to impact upon current and future EU energy partnerships. Sanctions are deployed with exceptional frequency by the EU. More case law exists on sanctions than on any other aspect of CFSP.14 On the one hand, they are measures of general application, i.e. a tool of EU external relations that serves general policy objectives; on the other, they are individualized decisions to interfere directly with the fundamental rights of specific persons. EU sanctions targeted at specific individuals, be they terrorist suspects or regime supporters, have replaced comprehensive state sanctions. At the same time, the combination of vague listing criteria and the fact that the CJEU accepts sets of indicia as sufficient to justify a listing reduces the targeted nature of sanctions and allows them to target categories of people. Since targeted sanctions were introduced in 2002, the adoption procedures, including the statement of reasons and notification, have improved. Yet, as Christina Eckes argues in her contribution to the volume, ‘it is difficult for the EU to create a procedure that stands up in a Union of law, in which individuals are subjected to far-reaching rights restrictions, possibly without any personal wrongdoing, in order to serve political objectives’. With tighter EU Guidelines (including, e.g., more detailed and repeated impact assessments) and greater care, this tension could be lessened by taking Declaration 25 on Articles 75 and 215 TFEU more seriously when targeting individuals or specific groups of people. In fact, the combination of a presumptions-based burden of proof, the broader and vaguer listing criteria, and the acceptance of a proportionality test that weighs any individual rights infringement against the overpowering objective of international peace and security, has made sanctions litigation less successful, according to Eckes, and effectively lowered the bar for the Council to justify the adoption and rollover of sanctions. Sanctions, the author warns, ‘should not set dangerous precedents of quasi-criminal charges located in the grey zone of criminality. [The EU should adhere] to procedural standards of criminal law, even if the general position of the EU institutions and the Court remains that sanctions are preventive and not punitive’. In the same vein, the author claims that restrictive measures like the new autonomous EU sanctions against Da’esh, where substantive listing decision-making no rubber stamping – takes place, should be based on Article 75 TFEU rather than Article 215 TFEU. This would effectively remove this type of sanction from the realm of CFSP and bring them within the Area of Freedom, Security and Justice (AFSJ), align decision-making under the ordinary legislative procedure, increase democratic oversight and address concerns about the arbitrary exercise of executive power. The linkages between the AFSJ and the CFSP have become quite explicit since the entry into force of the Treaty of Lisbon. The objective of ‘contribut[ing] to the protection of its citizens’ is viewed in Article 3(5) TEU as part of the Union’s aims in its relations with the wider world. More specifically, primary law refers to safeguarding, among other things, the Union’s security as an objective not only of the EU’s 14 This is subject to the caveat that the CJEU has so far predominantly reviewed measures that the EU takes under the TFEU to give effect to the CFSP sanctions rather than the CFSP decisions themselves. The exception to this is the recent Case C-72/15 Rosneft Oil Company OJSC v Her Majesty’s Treasury EU:C:2017:236 and arguably Case C-355/04 Segi and Others v Council EU:C:2007:116.

Conclusions 509 external action (Article 21(2) TEU), but also of the external aspects of its other policies (Article 24(3) TEU). But, as alluded to above, the two areas are ill-suited in legal terms. In his contribution to the volume, Panos Koutrakos explores these complexities from three different angles. He finds, first, that the interactions between CFSP and AFSJ have become increasingly pronounced and, secondly, their nexus central to the EU’s understanding of how best to tackle the main policy challenges that it faces. When examining, thirdly, how the nexus between the two policies works in CFSP practice, it becomes clear that the intensity of the interactions between the CFSP and AFSJ has had an impact on the character of the policies. Going by the most direct and prominent illustration, i.e. Operation Sophia in the Southern Central Mediterranean, Koutrakos finds that the CFSP, in particular, has moved closer to the soft end of the security spectrum and is being instrumentalized in order to enable the EU to achieve objectives of other policies. The implications of these findings for both the Union’s institutions and the place of CFSP in the EU’s constitutional order remain murky though. While the Court of Justice prevents the scope of CFSP from being impinged upon by other policies, the limited case law on the relationship between CFSP and AFSJ does not provide a clear yardstick that would enable the institutions to address legal basis questions with confidence. Yet the nature of the nexus itself is dynamic and subject to adjustment. After all, the objectives of the AFSJ are about ongoing problems that have assumed almost existential dimensions for the EU.15 Similarly, as we have seen above, there have been developments in the (capabilities) area of CSDP in the wake of the decision of the United Kingdom to leave the EU. In view of the prevailing political climate in Europe and the blurring of boundaries between what constitutes internal and external security, the shape of the relationship between the CFSP and AFSJ may not be seen in splendid isolation. The extent to which political and security challenges emanating from the EU’s outer periphery have tested the Union’s ability to act in a comprehensive and integrated fashion has raised questions about the alleged nexus between the European Neighbourhood Policy (ENP) and the CFSP. Does such a nexus exist at all or is the ENP mere CFSP in disguise? In search for answers, Steven Blockmans revisits the supposedly unique features of the ENP, at constitutional, institutional and instrumental levels. He finds that the ENP is still ill-conceived and badly equipped to deal with an unstable environment and the zero-sum gaming neighbours of the EU’s neighbours. Crisis response and conflict management fall outside the realm of the ENP and where a nexus with the CFSP/CSDP might have been presumed it has not materialized. Article 8(1) TEU does not provide the necessary teeth for the Union’s paper ENP tiger to survive in the mercurial neighbourhood. The instruments through which the ENP has to be implemented have to be borrowed from other parts of the Treaties, from which Article 8 TEU is disconnected. There is only so much the hybrid positions and bodies created in accordance with the Lisbon Treaty can do to paper over the legal cracks of EU primary law and forge an integrated policy towards the neighbourhood. 15 The EU Global Strategy starts off by pointing out that ‘[w]e live in times of existential crisis, within and beyond the European Union’.

510 Research handbook on the EU’s common foreign and security policy In order to bridge the gap between the rather naive-looking ambition stated in the Treaty (i.e. a stable and prosperous neighbourhood governed by the values and rules that have inspired the development of the Union itself) and the worsening realities on the ground, European policy-makers had no choice but to instil more realism into the implementation of the obligation to tactically work towards attaining the goals prescribed by Article 8(1) TEU. The 2015 review of the ENP has tried to abandon the enlargement methodology of implementing the ENP in favour of managing relations between the EU and all of its neighbours more pragmatically. Apart from the introduction of more differentiation and mutual ownership in the implementation of the ENP, the European Commission and the HR put more emphasis on political and economic ‘resilience’.16 The services’ adoption of this buzzword reflects the shift in debate about the nature of EU engagement with third states, neighbouring countries in particular. It de-emphasizes the goal of transformation that formed the bedrock of the ‘old’ ENP and replaces it with support for the ability to withstand systemic shocks and threats at both the state and societal level. By prioritizing security interests over values in increasingly transactional partnerships, the ENP now takes a more pragmatic approach to improving relations with neighbouring countries. But without the political will to mobilize the necessary security and financial resources to tackle the region’s multiple crises, and without a strategic vision to guide relations with the neighbours of the EU’s neighbours (e.g. Russia, Iran, China and its ‘Belt and Road’ initiative), the ENP remains in suspended animation, according to Blockmans. Moving away from the idealistic goals set out at its launch in 2004 and codified in the 2009 Lisbon Treaty, the ENP – as he sees it – currently represents little more than an elegantly crafted fig leaf that purports to be a framework for a soft power approach to the development of the EU’s outer periphery, but masks an inclination towards a more hard-nosed Realpolitik whose heterogeneous practice makes it hard to distinguish from foreign policy in the traditional sense of the term, i.e. a variegated set of bilateral strategies in the pragmatic pursuit of the EU’s interests. Development cooperation is generally considered part of the foreign policy of states. The Treaty of Lisbon, however, draws an important distinction between the CFSP (enshrined in the TEU) and development cooperation policy (laid down in the TFEU). In his chapter, Morten Broberg sets out important aspects of the Union’s development cooperation policy and examines the nexus between this policy and the CFSP. His focus is on the provision of development aid, approaching the CFSP from the outside, rather than from within. As observed by Cremona, the Lisbon Treaty has elevated some amalgamated objectives for EU external action in Article 21 TEU, whereas, before that, aims for development cooperation could be found in a designated treaty chapter. The streamlining of the Union’s external relations objectives has not led to the emergence of new hard legal obligations as regards the Union’s exercise of its development cooperation competence, even if reducing and eradicating poverty has been made a ‘primary objective’ of the EU’s development cooperation policy. Other objectives ‘encroach’ upon the Union’s development cooperation policy. This is particularly so 16 Joint Communication from the European Commission and the High Representative to the European Parliament and Council, ‘A Strategic Approach to Resilience in the EU’s external Action’ JOIN (2017) 21 final.

Conclusions 511 with regard to security and migration, where the CFSP is used to pursue objectives that also have a clear development or humanitarian aspect. Conversely, the use of development cooperation policy for the pursuit of objectives that primarily fall under the CFSP has been reinforced by the adoption of the ‘New Consensus’ on development. In practice, this mutual encroachment means that EU legal measures may simultaneously pursue CFSP and development cooperation objectives. The Union legislator must therefore consider whether, in the specific case, it is possible to have one legal measure founded on the dual legal basis of both the CFSP and development cooperation. In contrast to the development–security nexus and the undisputed links between trade and development, the relationship between CFSP and the Common Commercial Policy (CCP) is less visible. Yet, trade and foreign affairs have formed an intrinsic bond since the inception of the EU as a value-based regional trade organization. The establishment of a customs union and an internal market has served to achieve and maintain peace and prosperity between its members. Free and fair trade is now a precondition for peace and stability between nations and is thus part of the ‘genetic code’ of the EU (cf. Articles 3(5) and 21(1) TEU). Moreover, these values shall be pursued in a ‘coherent perspective for the EU’s external action as a whole’ by deploying CFSP instruments alongside trade instruments.17 However, the Union’s ‘normative’ trade regime is constrained by EU membership of the WTO. Andrea Ott and Guillaume Van der Loo explain that the fundamental principles of national treatment and non-discrimination enshrined in the WTO Agreements restrict its members in their pursuit of a ‘politically tainted’ trade policy. A case in point is the 2003 Kimberley process, in which the EU participates, which has introduced a certification, import and export control system to stem the trade in ‘blood diamonds’ and hence contributes to conflict prevention in Africa. This practice is not compatible with the principles of the WTO and required a waiver by the other WTO members. In fact, any desire to attribute a normative dimension to the CCP is affected by the choice between achieving CFSP goals through trade-restrictive measures (in the form of, e.g., embargoes; or suspension of preferential market access) and trade facilitation measures (in the form of, e.g., FTAs included in association agreements; or unilateral preferential market access offered through the GSP(+) regime). The constitutional mainstreaming of EU external relations principles and values pursuant to the Lisbon Treaty has strengthened the nexus between the CCP and the CFSP: foreign policy objectives are now trade tools, and trade is a tool to achieve foreign policy aims. This constitutional obligation is also reinforced by the strengthened role of the Parliament, which champions the politicization of EU trade policy. However, the EU’s discretion to consider non-trade value is restricted by its commitment to, inter alia, international trade and WTO rules. While trade facilitation might fare better, the unilateral granting of trade preferences through the GSP+ scheme for foreign policy objectives is also constrained, both by WTO law and the EU’s own eligibility criteria, as well as internal political considerations. The authors conclude that the more the EU works with a broader brush and includes CFSP aims in non-economic objectives to be achieved in trade relations, the more difficult it will be to act in 17 High Representative of the Union for Foreign Affairs and Security Policy, ‘Implementing the EU Global Strategy, Year 1 – report’, 2017.

512 Research handbook on the EU’s common foreign and security policy conformity with international (trade) rules and, therefore, to have a direct impact on third countries. The nexus between the CFSP and EU humanitarian aid policy is one of the most obvious policy nexuses in EU external relations. CSDP missions and operations are very often deployed in crisis situations where humanitarian aid is of utmost importance and is, thus, also part of the Union’s response. This is, however, a problematic nexus since the humanitarian aid policy is subject to the principles of humanity, neutrality, impartiality and independence. In her chapter, Mireia Estrada Cañamares finds that the boundaries between the tasks and objectives of these two policy areas are not always clear. Moreover, the coexistence of CFSP and humanitarian aid measures in crisis and post-crisis situations outside the Union’s borders, together with the mainstreaming of institution-building in EU external action, have led to the understanding that CFSP and humanitarian aid interventions are part of an integrated EU response and should, therefore, be guided by common policy strategies. Then again, the independence of EU humanitarian aid should also be considered, as well as the risks of the nexus with the CFSP for the effectiveness of humanitarian aid. In practice, NGOs may decide not to participate in the implementation of humanitarian operations if they take the view that humanitarian aid is part of the Union’s overall approach to the challenges faced in a particular country or region. This risk is exacerbated by the fact that, by putting the state at the centre of its attention, the EU often takes sides in the internal politics of third states. By unpacking the Union’s approach to Somalia in the past few years, the author shows that the EU is an actor whose intervention in third states can hardly be considered neutral. Estrada Cañamares argues that the EU ought to strike a balance between promoting coherence between different policies and activities and securing the independence of humanitarian aid. In most cases, this balance could be found by seeking to advance policy complementarity by prioritizing efforts that do not have a clear external projection. For example, cooperation between DG ECHO and the EEAS in the planning of CSDP missions and operations is better suited to strike that balance than joint statements by the HRVP and the Commissioner for Humanitarian Aid: since joint statements have a clear external projection, they raise the perception that humanitarian aid is connected to CFSP objectives. In other instances, she finds the quest for coherence has prevailed over the protection of the independence of EU humanitarian aid. The author therefore claims that the lack of treaty-based recognition of the principle of independence of humanitarian aid should be reviewed. One aspect of humanitarian crises is concerned with the health situation of an affected population. But in an interdependent society, health risks may come from anywhere: health crises may start with industrial pollution, a veterinary epidemic, conflict or a natural disaster. Health security action straddles the boundaries between sectoral policies and has both an internal and an external security dimension. Where they are manmade (bio-chemical threats), their origin can be non-government actors. Where the threat level of deadly pathogens rises to the level of a security problem in the EU, the institutional and legal actor that has a role in both internal and external matters is the Health Security Committee, which has a predominantly coordinating role. In this regard the EU has been increasingly present in responding to major outbreaks, such as in the HPAI crisis and the recent Ebola outbreak, where the EU requested longer-term efforts.

Conclusions 513 In her contribution to this book, Anniek de Ruijter traces the emergence of external EU health security policy, its legal context, institutions, instruments and techniques. This is an understudied domain where even the existence of a body of internal EU health law is a matter of debate. This is a consequence of the highly redistributive nature and the ethical and culturally loaded aspects of health care policy generally, and the fact that, in terms of underlying shared values, the Member States’ approaches are still largely asymmetrical. Given the EU’s limited competences, the Union’s global role has been limited. The areas where the EU can have an international role to play in health are mostly within the context of trade, development and, to a lesser extent, security. The EU may impact health through these domains, but is not necessarily implementing a health policy for its own sake. In the field of development, the author finds, health seems to be an obvious parameter for promotion, but in trade, health is and add-on factor to growth or competitiveness. This raises the question to what extent there really is a nexus between the CFSP and health policy and law. As in the health sphere, the EU is a relative newcomer in the field of cybersecurity, a catchphrase for cybercrime, network and information security (NIS), and cyber defence. A common theme in cybersecurity is the blurring of boundaries: between public authorities and non-state actors; between criminal behaviour and politically motivated attacks; between law enforcement and military action; between domestic and international actions. Such a blurring of categories can pose challenges for the Union – which is built upon clear demarcation on such issues – when seeking to combat cyber threats in a coherent and effective fashion. Yet a comprehensive vision and unified approach has not yet emerged. The multitude of actors involved in cybersecurity, the lack of a central body responsible for taking the lead in these initiatives, the lack of a formal legal basis for cybersecurity in the EU Treaties, and the absence of a common understanding of cyber terminology, all make it difficult for such a European vision to develop. While it has for a long time been involved in areas of internet governance and regulation, on cybersecurity issues the Union has been more reactive to outside events and developments, and is still in the process of developing policy. With a number of high-profile incidents in recent years, the challenge of cybersecurity has grown in prominence, and the EU and the Member States have sought to catch up by strengthening resilience to threats emanating from cyberspace. Jed Odermatt finds that while the EU has made steps in the fields of cybercrime and improving the resilience of communication and information systems, there has been less attention paid to its role in cyber defence. The EU has not sought to become a ‘cyber power’ with offensive capabilities. Several aspects of the EU’s bottom-up approach to cybersecurity – its legalistic framework, the multi-stakeholder approach, its emphasis on a secure and open internet, its focus on fundamental rights and values – contrast with the logic of control adopted by a number of states that are active in the field. Whereas Member States remain dominant in the field of cyber defence, the EU can act as much more than just a coordinator and a facilitator of policies, it can potentially develop into a cybersecurity actor in its own right to deal with the political and diplomatic dimension, especially as threats of state-sponsored cyber attacks increase and EU interests and values are reflected in global decision-making. The author is therefore of the opinion that the EU should continue to strengthen its cyber policies,

514 Research handbook on the EU’s common foreign and security policy including through the CFSP framework. Yet, the intergovernmental character of decision-making and the unwillingness of Member States to give the EU a central role in a core sovereign competence present a challenge to this goal.

4. STEPPING BACK AND LOOKING FORWARD Having unpacked the development of the CFSP law and practice and conceptualized the ways in which they interact with other strands of the EU’s external action, the book steps back in order to reflect on the overall perspective and direction of the policy. It examines CFSP against a broader conceptual canvas from developing perspectives, namely the type of actor it has become, third parties’ expectations of its actorness, and the role of law and ethics in the development of the policy. Seeking to define the type of actor that it has become in the world, Achilles Skordas views the Union as a liberal realist power. His starting point is the current disoriented state of the Union amidst a troubled and volatile international environment. Relying upon Nietzsche’s writings about the need for a liberal and powerful Europe that would rise above states, Skordas then looks forward. His analysis explores the ways in which the liberal policy objectives laid down in Article 21 TEU are pursued on the basis of an increasingly realist policy posture. He shows that realism has, in fact, been impeded by the EU’s DNA and highlights the limitations of our understanding of the Union as a normative or civilian power. The author suggests that the EU’s unique characteristics as a foreign policy actor transcend the distinctions between regionalism and globalism, and he shows how the universal scope of the Union’s policies is not negated by its understanding of its distinct contribution on the international scene. Skordas explains how multilateralism and unilateralism may explain different facets of the Union’s responses to international crises, but neither of these concepts may capture accurately the underlying dynamics of these responses and the ways in which they reflect the EU’s multilayered and complex system. He stresses the realist streak of the Union’s posture by exploring the ways in which its legislature and judiciary have dealt with the migration crisis, and he argues that the pursuit of minilateralism would best enable the EU to develop its security and defence policy. Urfan Khaliq, on the other hand, draws on the much-discussed ‘capabilities– expectations gap’ of CFSP in order to reflect on the nature of the Union’s power in the foreign policy arena. He deconstructs the widely held expectations that shaped the genesis of the CFSP and reviews the different instruments at the Union’s disposal. He concludes that the perceived gap is somewhat exaggerated and discusses the ways in which the intrinsic linkages between CFSP and the foreign policy of the Member States manifest themselves on the international scene as a matter of practice. Khaliq engages with the international relations discussion of power and highlights the difficulties of defining the type of power that the Union may actually wield. By placing his analysis in the international policy context which the EU seeks to influence, the author highlights the Union’s unique ability to rely upon a range of different policy instruments, even though it does not have complete control over all of them, and the ensuing evolving nature of its policy. It is in the light of this constant development that he reflects on the implications of the decision of the United Kingdom to leave the EU

Conclusions 515 – not just for the CFSP itself (it would accentuate its somewhat confusing character) but for the EU more generally (it would be bound to pursue further integration while losing some international clout, given the relative weight of the UK). The first part of the book highlighted the ways in which the CFSP straddles the powers of both the EU and the Member States and its gradual, albeit still idiosyncratic, integration in the Union’s constitutional order. In his chapter, Jan Klabbers picks up this thread and develops it further by addressing the question whether there is too much law in this most distinctly politicized policy. To any EU lawyer, this is a pertinent question which touches upon the core of the Union’s existence. One may recall the succinct early statement by Joseph Weiler that ‘in some ways, [EU] 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’.18 Klabbers’s enquiry draws on CSDP and the Union’s approach to Ukraine. In the former, he welcomes the presence of the law illustrated by the increasingly assertive presence of the Court of Justice, whereas in the latter he notices the different, and, as it turned out, conflicting ethical claims that underpinned the Union’s approach and the ensuing conflict. He points out that to take a foreign policy stance requires a choice between competing legal orders (in the case of CFSP-related disputes that reach the Court of Justice) or competing ethical claims, and neither law nor ethics may guide this choice in a way which would produce the optimum policy outcome in accordance with the values and objectives laid down in the Treaties. As the EU approaches the tenth anniversary of the entry into force of the Lisbon Treaty, the general dynamic of the CFSP is one whose institutional and procedural frameworks gradually integrate in the expression of a more comprehensive and coherently forged external action. This Research Handbook has sought to identify, explore and bring together the different threads that have underpinned this incremental legal and policy development. At this critical juncture for the Union’s identity and direction, the extent to which the slow solidification of the CFSP’s legal framework will strengthen or hamper the Union’s effectiveness in the field is a matter that will exercise research interest in the next decade.

18

JHH Weiler, The Constitution of Europe (CUP 1999) 205–206.

Index

access to CFSP documents 8–9 ad hoc representation of the EU see EU external representation in CFSP field, ad hoc diplomacy Afghanistan EU development assistance to 263, 264–5 see also development cooperation policy and CFSP EUPOL Afghanistan counter-terrorism mission 97, 98, 99–100, 103, 107, 280 see also civilian CSDP missions; terrorism see also Middle East and North Africa AFSJ (area of freedom, security and justice) and CFSP 296–7, 311, 508–9 agreements combining AFSJ and CFSP objectives 16, 308 see also international agreements under CFSP choice of legal basis 16, 307–11 policy coherence 297–302 in practice 308 counter-terrorism work see terrorism Operation Atalanta see naval operations, Operation Atalanta (counter-piracy off the Horn of Africa) Operation Sophia (combating people smuggling via the Mediterranean) 114, 115–19, 130, 302–7, 421–2, 503, 509 see also migrant crisis (2015); military CSDP missions A.Q. Khan Network (illicit WMD proliferation) 187, 191, 202 see also weapons of mass destruction (WMD), EU’s non-proliferation strategy arms and ammunition see weapons Ashton, Catherine (High Representative, 2009–14) 51, 52, 61, 62, 492 see also High Representative of the Union for Foreign Affairs and Security Policy asset freezing see restrictive measures Athena mechanism 31, 35, 119

Athena Decision (Council Decision 2015/528/CFSP), EU liability apparently excluded by 139, 142, 144 see also responsibility and liability for CSDP operations funding of EU Battlegroups proposal 177 legal personality of 139, 142, 144, 152–3, 505 see also CSDP (common security and defence policy), financing attribution of wrongful conduct to EU EU law on 138–42, 152 international law on 133–5, 152, 505 see also responsibility and liability for CSDP operations autonomous trade measures 248–52 see also CCP (common commercial policy) and CFSP Battlegroups, EU 115–16, 161, 176, 177 see also military CSDP missions, capabilities bilateral relations of the EU see EU external representation in CFSP field, at bilateral level of Member States 58, 63, 328, 336, 352 see also Member States’ CFSP role biological weapons Biological Weapons Convention 1972 183–4, 374 see also weapons of mass destruction (WMD), EU’s non-proliferation strategy CBRN (chemical, biological, radiological and nuclear) health security risks 375, 377, 384, 385, 386–7, 389 see also public health and CFSP ‘blood diamonds,’ EU trade restrictions 231, 241, 242–3, 511 see also CCP (common commercial policy) and CFSP Bosnia and Herzegovina, EU police mission to 89, 95, 99, 106, 446–7

517

518 Research handbook on the EU’s common foreign and security policy H v Council of the European Union (C-455/14P) see H v Council of the European Union (C-455/14P) unintended consequences of 108 see also civilian CSDP missions Brexit see United Kingdom, Brexit (withdrawal from EU) capabilities-expectations gap theory 155, 459–60, 492–3, 514–15 case studies, theory applied to Iran, WMD non-proliferation and disarmament negotiations see Iran, WMD non-proliferation and disarmament Israeli-Palestinian diplomacy 482 see also Israel, occupation of Palestinian territories NATO military intervention in Libya (2001) 484–5 see also France; Libya; NATO CFSP orientation, proactive or reactive 478–80 see also CFSP (common foreign and security policy), objectives civilian CSDP missions, theory applied to 102–4, 503 see also civilian CSDP missions EU/Member States’ credibility gap 482–5 EU’s power in international relations Brexit implications 493–5, 514–15 see also United Kingdom, Brexit (withdrawal from EU) EU as a hard, soft or ‘smart’ power 90, 403, 470–73, 476 see also EU as post-national realist power EU as a power independent of its Member States 462–4, 466–9 EU’s economic power 469–70, 472, 489 EU’s self-projection as a foreign policy actor 474–7, 489 see also ‘normative power Europe,’ CFSP contribution to extent of EU’s power 464–70 ‘power’ defined 461–2 third country expectations of EU as foreign policy actor 485–9, 493 appraisal of CFSP missions against 489–92 capabilities of CSDP see CSDP (common security and defence policy), capabilities

capacity and resilience-building focus of civilian CSDP misssions 95, 97, 99, 108 see also civilian CSDP missions; Global Strategy on Foreign and Security Policy (2016); ‘integrated approach’ aim CCP (common commercial policy) and CFSP 230–32, 252–3, 311, 511–12 conflict minerals (’blood diamonds’), EU trade restrictions 231, 241, 242–3, 511 trade and investment agreements 243–4 Deep and Comprehensive Free Trade Agreements 2, 243, 324, 337 health protections in 381–2, 391 see also public health and CFSP human rights clauses 239–40 see also human rights trade-facilitative measures to achieve CFSP aims 243–4 autonomous trade measures 248–52 GSP+ regime 244–8 WTO law compatibility 245, 251–2, 253 trade-foreign policy nexus legal dimension 232–5 policy coherence 236–7 trade-restrictive measures to achieve CFSP aims 237 measures giving effect to international law duties 240–41 measures promoting sustainable development and human rights 231, 241–3 suspension of trade agreements 238–40 against WMD see weapons of mass destruction (WMD), EU’s non-proliferation strategy WTO law compatibility 231, 242–3, 253 Central African Republic peacekeeping mission to (EUFOR Chad/RCA) 111, 148, 267, 281 ‘train and equip’ mission to 113, 119–20, 130 see also military CSDP missions CFSP (common foreign and security policy) capabilities see CSDP (common security and defence policy), capabilities competence determinations 6–7, 13–14, 20–21 choice of legal basis see CFSP decisions, choice of legal basis CJEU determinations see Court of Justice (CJEU) jurisdiction on CFSP complementarity 14–15

Index 519 exclusive competence on TFEU Art 3(2) basis, whether conditions could arise 7 Member States’ foreign and defence policies, CFSP relationship with see Member States’ CFSP role ‘non-affect’ clause (TEU Art 40) 7–8, 12, 14, 21, 48, 289–90, 333, 497 policy content and instruments, relevance of 18–20, 121–2 ‘specific rules and procedures’ (TEU Art 24(1)) 7–12, 13, 48, 86, 497 CSDP see CSDP (common security and defence policy) data protection law applied to 7, 9–10 decisions see CFSP decisions financing 35–6 Council of the European Union’s role 35–6 see also Council of the European Union’s CFSP role CSDP missions see CSDP (common security and defence policy), financing European Commission’s role 27, 36 see also European Commission’s CFSP role European Parliament’s role 28 see also European Parliament’s CFSP role functions of 21 geopolitical challenges 1–2, 394–5, 408–10, 477 see also EU as post-national realist power, geopolitics of contemporary risks history of 473–8 Treaty of Lisbon 2007, effect of see Treaty of Lisbon 2007, effect on CFSP institutional roles CJEU see Court of Justice (CJEU) jurisdiction on CFSP Council of the European Union see Council of the European Union’s CFSP role EEAS see EEAS (European External Action Service) EU Special Representatives 28–9 European Commission see European Commission’s CFSP role European Council see European Council’s CFSP role

European Parliament see European Parliament’s CFSP role external representation of the EU see EU external representation in CFSP field High Representative see High Representative of the Union for Foreign Affairs and Security Policy Member States see Member States’ CFSP role PSC see Political and Security Committee (PSC) ‘turf wars’ see inter-institutional conflicts legal basis of 5, 267, 496–7 see also CFSP decisions, choice of legal basis measures international agreements see international agreements under CFSP restrictive measures see restrictive measures missions 19–20 appraised against third country expectations 489–92 see also capabilities-expectations gap theory CSDP missions see CSDP (common security and defence policy), missions ‘integrated approach’ aim see ‘integrated approach’ aim objectives 15–18, 21, 33, 98, 460–61, 476, 497 capabilities-expectations gap, contribution to see capabilities-expectations gap theory CFSP’s proactive or reactive orientation 478–80 development cooperation policy objectives, relationship with see development cooperation policy and CFSP, shared objectives EU/Member States’ credibility gap 482–5 liberal realism of see EU as post-national realist power, liberal realism as EU’s deep structure ‘normative power Europe,’ contribution to see ‘normative power Europe,’ CFSP contribution to restrictive measures, tension between legal and political objectives 218–21

520 Research handbook on the EU’s common foreign and security policy see also restrictive measures trade objectives, relationship with 233–5, 240 see also CCP (common commercial policy) and CFSP policies and strategies 478–9 Comprehensive Approach to External Conflicts and Crises (2013) 265–6, 281–2, 283, 329 see also development cooperation policy and CFSP; humanitarian aid policy and CFSP; ‘integrated approach’ aim Cybersecurity Strategy of the European Union: An Open, Safe and Secure Cyberspace (2013) see cybersecurity policies, EU Cybersecurity Strategy (2013) European Security Strategy 161, 165, 186, 236, 479, 493 Global Strategy on Foreign and Security Policy (2016) see Global Strategy on Foreign and Security Policy (2016) Implementation Plan for Security and Defence (2016) 107, 127–8, 160, 174–5, 502, 505 Strategy against Proliferation of Weapons of Mass Destruction (2003) 18, 186, 195 see also weapons of mass destruction (WMD), EU’s non-proliferation strategy relationship with other policies AFSJ see AFSJ (area of freedom, security and justice) and CFSP CCP see CCP (common commercial policy) and CFSP cybersecurity policies see cybersecurity policies development cooperation see development cooperation policy and CFSP energy policy see energy policy and CFSP ENP see ENP (European Neighbourhood Policy) humanitarian aid see humanitarian aid policy and CFSP policy coherence see external action, policy coherence public health policy see public health and CFSP

theoretical perspectives capabilities-expectations gap see capabilities-expectations gap theory EU as post-national realist power see EU as post-national realist power law versus ethics see law versus ethics in the CFSP ‘normative power Europe’ see ‘normative power Europe,’ CFSP contribution to transparency principle applied to 8–9 see also external action CFSP decisions 10 choice of legal basis 12–13, 14, 34–5 see also CFSP (common foreign and security policy), competence determinations AFSP-CFSP nexus 16, 307–11 see also AFSJ (area of freedom, security and justice) and CFSP CJEU determinations see Court of Justice (CJEU) jurisdiction on CFSP, CFSP legal basis determinations development cooperation-CFSP nexus 267–70, 287–8 see also development cooperation policy and CFSP energy policy-CFSP nexus see energy policy and CFSP, choice of legal basis international agreements see international agreements under CFSP, choice of legal basis quest for coherence in external action 287–9 see also ‘integrated approach’ aim restrictive measures see restrictive measures, legal basis CSDP decisions see CSDP (common security and defence policy), decisions international agreements see international agreements under CFSP policy-setting decisions (European Council) 17, 20, 30, 42, 500 see also European Council’s CFSP role restrictive measures decisions see restrictive measures rights of initiative see High Representative of the Union for Foreign Affairs and Security Policy, right of initiative; Member States, rights of initiative

Index 521 types operational actions under TEU Art 28 17, 29, 34–5, 51 ‘positions’ under TEU Art 29 17, 29, 34, 35 voting rules and procedures abstention, possibility of 29–30 constructive abstention 30 qualified majority voting, uses of 30, 39, 42, 270, 328, 500 Chad, peacekeeping mission to (EUFOR Chad/RCA) 111, 148, 267, 281 see also military CSDP missions chemical weapons CBRN (chemical, biological, radiological and nuclear) health security risks 375, 377, 384, 385, 386–7, 389 see also public health and CFSP Chemical Weapons Convention 1993 183, 192 see also weapons of mass destruction (WMD), EU’s non-proliferation strategy China EU delegation in 59, 64 see also EU external representation in CFSP field, at bilateral level EU’s trade and investment agreement negotiations with 2 North Korea, attitude towards 192, 204 choice of legal basis see CFSP decisions, choice of legal basis civilian CSDP missions 32–3, 89–90, 109–10, 502–3 capabilities see also CSDP (common security and defence policy), capabilities capabilities-expectations gap theory, applied to civilian missions 102–4, 503 see also capabilities-expectations gap theory Civilian Capability Development Plan 97, 166–7 development of 164–9 future development of 174, 176 PESCO see PESCO (permanent structured cooperation) civilian CSDP Compact 94, 109 coordination with military missions 101 see also military CSDP missions ‘integrated approach’ aim 104, 106, 109, 111, 123–4, 160, 503

see also ‘integrated approach’ aim ‘crisis management’ concept 91 development of 90–94, 164–9 EEAS, coordinating role 106 see also EEAS (European External Action Service) CPCC (Civilian Planning and Conduct Capability) 32, 106, 112 financing 92, 106–7 see also CSDP (common security and defence policy), financing humanitarian aid provision 280–81 see also humanitarian aid policy and CFSP institutional framework 93–4 Joint Support Coordination Cell 175 Member State support for 105 see also Member States’ CFSP role contribution of resources 102–3 Nordic Member States 90, 103, 104–5 missions in 1991–2017 94 capacity and resilience-building focus 95, 97, 99, 108 deployed personnel 95 EUAM Ukraine 95, 97, 99, 101 see also Ukraine EUBAM Libya 100, 118, 167, 281 see also Libya EUCAP Sahel Mali see Mali, EUCAP Sahel Mali EUCAP Sahel Niger 97, 99, 103, 281, 301 EUCAP Somalia 97, 100 see also Somalia EULEX Kosovo 38, 62, 98, 464 see also Kosovo EUPM Bosnia see Bosnia and Herzegovina, EU police mission to EUPOL Afghanistan 97, 98, 99–100, 103, 107, 280 EUPOL COPPS (EU Coordinating Office for Palestinian Police Support) 99 flexibility of 101 geographical scope 98 to Georgia see Georgia, civilian CSDP missions to interactions with other EU and international actors 100 legal personality of 143, 152–3 see also responsibility and liability for CSDP operations list of 96, 327 mandates 95, 97–8, 100

522 Research handbook on the EU’s common foreign and security policy objectives 33, 98 protection of EU interests 97, 98–9 symbolic value 103 ‘normative power Europe,’ contribution to 98–101, 109 see also ‘normative power Europe,’ CFSP contribution to politics of bureaucratic politics 105–7 intergovernmental politics 104–5 local politics 107–8 recruitment and training of personnel 102 responsibility and liability for see responsibility and liability for CSDP operations security system reform objective, AFSP links 300 see also AFSJ (area of freedom, security and justice) and CFSP SOMAs (status of mission agreements) 77, 92 EU Model SOMA 80, 135–6 third party claims under 134–7 see also responsibility and liability for CSDP operations see also CSDP (common security and defence policy) CJEU jurisdiction on CFSP see Court of Justice (CJEU) jurisdiction on CFSP coherence of EU external action see external action, policy coherence colonial history of Member States, contemporary impacts 483–5 common commercial policy see CCP (common commercial policy) and CFSP communicable diseases see public health and CFSP competences of the EU 6 see also CFSP (common foreign and security policy), competence determinations competition between EU institutions see inter-institutional conflicts competition law, applied in energy policy context see energy policy and CFSP Comprehensive Approach to External Conflicts and Crises (2013) 265–6, 281–2, 283, 329 see also development cooperation policy and CFSP; humanitarian aid policy and CFSP; ‘integrated approach’ aim ‘comprehensive approaches’ of EU external action 291–3

see also ‘integrated approach’ aim Comprehensive Nuclear-Test-Ban Treaty 1996 184, 187, 195–6 see also weapons of mass destruction (WMD), EU’s non-proliferation strategy conflict minerals (’blood diamonds’), EU trade restrictions 231, 241, 242–3, 511 see also CCP (common commercial policy) and CFSP Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction 1972 183–4, 374 see also weapons of mass destruction (WMD), EU’s non-proliferation strategy Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction 1993 183, 192 Coordinated Annual Review on Defence 129, 175–6 see also CSDP (common security and defence policy), financing Cotonou Agreement (between EU and African, Caribbean and Pacific Group of States) 121, 234, 239 Council of the European Union’s CFSP role 23–4, 500 duties decision-making by qualified majority voting 30, 270 see also CFSP decisions EU special representatives, appointment 28–9 financing 35–6 international agreements, conclusion of 11–12, 19, 270 military CSDP missions, deployment decisions 112–13 see also military CSDP missions PESCO decisions, adoption 33–4 see also PESCO (permanent structured cooperation) Foreign Affairs Council 167, 408–9 chaired by High Representative 21, 23, 24, 277, 279–80 see also High Representative of the Union for Foreign Affairs and Security Policy

Index 523 decisions to deploy military CSDP missions 112–13 see also military CSDP missions Health Threats Decision (Decision 1082/2013/EU) 388–90 see also public health and CFSP views on AFSJ-CFSP nexus 299–300 see also AFSJ (area of freedom, security and justice) and CFSP counter-terrorism see terrorism Court of Justice (CJEU) jurisdiction on CFSP 2, 8, 65–7, 86–7, 144–5 alternative forms of judicial control, scope for 87, 499 CJEU’s views on 66–7, 73–5 European Court of Human Rights 75–8 see also European Court of Human Rights International Court of Justice 78–9 International Criminal Court 79–80 Member States’ courts 81–6, 87, 146–7 see also Member States’ CFSP role national courts of third country states 80–81 privileges and immunities 80 specialized tribunals 80 case law Commission of the European Communities v Council of the European Union (C-91/05) (ECOWAS/small arms case) 121–2, 260, 309–10 Elitaliana SpA v Eulex Kosovo (C-439/13) 145 European Parliament v Council of the European Union (C-658/11) (Mauritius) 67–8, 308 Foto Frost v Hauptzollamt Lübeck-Ost (C-314/85) 83–4 H v Council of the European Union (C-455/14P) see H v Council of the European Union (C-455/14P) Kadi and Al Barakaat International Foundation v Council of the European Union (C-402/05 P and C-415/05 P) 5, 209, 453 NF, NG and NM v European Council (T-192/16, T-193/16, T-257/16) 433–5 Opinion 1/09 on the Draft Agreement on the European and Community Patents Court 81–2, 87

Opinion 2/13 see Opinion 2/13 on the Draft Agreement on the Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms Rosneft case see R. (on the application of PJSC Rosneft Oil Co) v HM Treasury (C-72/15) X and X v État belge (C-638/16 PPU) 424–9 CFSP legal basis determinations 12, 14–18, 35 see also CFSP decisions, choice of legal basis European Parliament v Council of the European Union (C-130/10) (Smart sanctions) 12, 14, 16, 309–10 European Parliament v Council of the European Union (C-263/14) (Tanzania Agreement case) 16–17, 69, 122, 308–10 CJEU interpretation of 70–71, 498–9 exclusion of jurisdiction a ‘derogation’ 10–11, 67–8, 69 ‘provisions relating to CFSP’ concept 10–11 ‘restrictive measures’ definition 212–13 see also restrictive measures, CJEU jurisdiction to review rule of law and fundamental rights concerns, relevance of 11, 68, 70, 73, 86, 211–12, 256, 449, 499 contested issues award of CSDP public service contracts 69 see also CSDP (common security and defence policy) conflicts between institutional or Member State actors 72 EU’s liability for CSDP operations see responsibility and liability for CSDP operations, EU liability under TFEU Art 340 international agreements 16–17, 69, 70 restrictive measures see restrictive measures, CJEU jurisdiction to review staff disputes in CFSP field 70 see also H v Council of the European Union (C-455/14P) excluded areas 71–3

524 Research handbook on the EU’s common foreign and security policy Crimea, annexation by Russia see Ukraine, Russia’s annexation of Crimea crisis management see civilian CSDP missions CSDP (common security and defence policy) 31, 277, 463, 500 background to establishment 156–7 capabilities 180–81, 505–6 Brexit implications 113–14, 125–6, 130–31, 174, 179–80, 311, 504 see also United Kingdom, Brexit (withdrawal from EU) ‘capabilities’ concept 154 capabilities-expectations gap theory see capabilities-expectations gap theory Capability Development Plan 128, 162–3, 170, 174, 367 catalogues of 161–2 civilian missions see civilian CSDP missions, capabilities cybersecurity capabilities 366 see also cybersecurity policies, cyber defence Declaration on the Operational Capability of the CSDP (2001) 93, 168 defence element of CSDP, implications 171–3 differential responsibilities of Member States 158–9 EU-owned or ‘on-call’ resources, controversy over 154–5 finance see CSDP (common security and defence policy), financing future development of 169–77 Member States’ duty to provide 157–8, 159 military missions see military CSDP missions, capabilities nuclear deterrent proposal 173 PESCO see PESCO (permanent structured cooperation) resources provided by larger Member States, controversy over 155–6 cybersecurity see cybersecurity policies, cyber defence decisions 277 to deploy military missions 112–13 see also military CSDP missions establishing PESCO see PESCO (permanent structured cooperation) legal bases 34

qualified majority voting prohibited 30 ‘defence’ concept 171–3 EU Security and Defence Union, scope for 176–7 financing see also CFSP (common foreign and security policy), financing Athena mechanism see Athena mechanism civilian missions 92, 106–7 see also civilian CSDP missions Coordinated Annual Review on Defence 129, 175–6 European Defence Fund 36, 129, 155, 169, 176, 505–6 military operations see military CSDP missions, financing humanitarian aid-CSDP nexus see humanitarian aid policy and CFSP Implementation Plan for Security and Defence (2016) 107, 127–8, 160, 174–5, 502, 505 institutional structures 31–2 EUMS see military CSDP missions, EUMS (EU Military Staff) European Defence Agency see European Defence Agency Joint Support Coordination Cell 175 minilateralism of see also EU as post-national realist power ‘coalitions of the willing’ 419, 436 enhanced cooperation 34, 437 PESCO see PESCO (permanent structured cooperation) missions 37–8 civilian see civilian CSDP missions common defence policy, progressive framing 32 in the Eastern Neighbourhood 326–9 see also ENP (European Neighbourhood Policy) EU-UN cooperation 38–9 see also UN (United Nations) implemented via PESCO see PESCO (permanent structured cooperation) ‘integrated approach’ aim 104, 106, 109, 111, 123–4, 160, 503 see also ‘integrated approach’ aim in Kosovo see Kosovo military see military CSDP missions

Index 525 responsibility and liability for see responsibility and liability for CSDP operations SOFAs see military CSDP missions, SOFAs (status of forces agreements) SOMAs see civilian CSDP missions, SOMAs (status of mission agreements) tasks of 19, 33, 92–3, 97 NATO, EU relations with see NATO, EU relations with objectives Headline Goals 160–61, 165, 166 ‘Petersberg tasks’ 19, 92–3, 127–8, 156, 416, 502 security system reform objective, AFSP links 300 see also AFSJ (area of freedom, security and justice) and CFSP public service contracts, CJEU’s jurisdiction to review 69 see also Court of Justice (CJEU) jurisdiction on CFSP WMD, non-proliferation see weapons of mass destruction (WMD), EU’s non-proliferation strategy cybersecurity policies 1, 354–5, 513–14 cyber defence see also CSDP (common security and defence policy) challenges affecting policy development 365–6 Cyber Defence Policy Framework 366–7 definitions 358 EUMS role 368 see also military CSDP missions, EUMS (EU Military Staff) European Defence Agency role 367–8 see also European Defence Agency NATO cooperation 367, 368–9 see also NATO ‘real world’ and cybersecurity threats 128, 368 see also hybrid security threats; military CSDP missions scope for further development 372–3 cybercrime definitions 357–8 EU legal framework on 362 European Cybercrime Centre (EC3) 362–3 EU Cybersecurity Strategy (2013) 356–7, 358, 359, 361–2, 365–6, 371

external action on cybersecurity diplomatic responses to cyberattacks 370–71 human rights and rule of law promotion 369–70 international humanitarian law norms, contribution to development 371–2 network and information security (NIS) 363–5, 369 ENISA (European Union Agency for Network and Information Security) 357, 364 European Principles and Guidelines for Internet Resilience and Stability (European Forum for Member States) 369 NIS Directive (Directive 2016/1148/EU) 363–4 regulatory challenges blurred boundaries 372 incoherent terminology 356–9 lack of explicit legal basis 360–61, 366 relating to the nature of cyberspace 359–60 Cyprus, EU’s responses to Turkey’s occupation of Northern Cyprus 100, 171, 491 see also Turkey data protection law CFSP acts adopting data protection rules 19 CFSP application of 7, 9–10 Declaration on the Operational Capability of the CSDP (2001) 93, 168 see also CSDP (common security and defence policy), capabilities defence policy see CSDP (common security and defence policy) development cooperation policy and CFSP 254, 510–11 Comprehensive Approach to External Conflicts and Crises (2013) 265–6, 281–2, 283, 329 see also humanitarian aid policy and CFSP; ‘integrated approach’ aim delimitation between 260–61 CFSP used instead of development cooperation policy 265–7 choice of legal basis (development cooperation versus CFSP) 267–70, 287–8 development cooperation policy used instead of CFSP 261–5

526 Research handbook on the EU’s common foreign and security policy EEAS development cooperation role, controversy over 271–3, 275 see also EEAS (European External Action Service) New European Consensus on Development 261–3, 511 policy coherence see also external action, policy coherence policy coherence for development obligation 257–8 value promotion 258–60 see also ‘normative power Europe,’ CFSP contribution to public health promotion 382–3, 390–91 see also public health and CFSP security-development nexus, funding challenges 121–4 see also military CSDP mission, financing shared objectives 255–7, 266, 274 international agreements with 257, 270 see also international agreements under CFSP differential integration of CFSP see ‘integrated approach’ aim, differentiated integration diplomacy see EU external representation in CFSP field disaster relief see humanitarian aid policy and CFSP Donbas, Russia’s destabilization of see Ukraine, Russia’s destabilization of Donbas Draft Articles on the Responsibility of International Organizations 134, 152, 505 E3 (France, Germany and UK) see Iran, WMD non-proliferation and disarmament; Member States’ CFSP role, E3 (France, Germany and UK) economic sanctions see restrictive measures EEAS (European External Action Service) 2, 8, 22, 124–5, 463, 497, 499 appraised as a diplomatic actor 491–2 autonomy of 26 background to establishment 25–6 CFSP efficiency, contribution to 36–7, 39–40 data protection law application 9 duties development cooperation role, controversy over 271–3, 275

see also development cooperation policy and CFSP ENP role 322–3 see also ENP (European Neighbourhood Policy) external representation of EU see EU external representation in CFSP field, by High Representative/EEAS humanitarian aid role 291 see also humanitarian aid policy and CFSP international agreements, negotiation 39–40 see also international agreements under CFSP PSC chair 23–4 see also Political and Security Committee (PSC) restrictive measures, role in adoption 222–3 see also restrictive measures support for High Representative 26, 27 see also High Representative of the Union for Foreign Affairs and Security Policy support for other EU institutions in their CFSP roles 26 institutional structures Committee for the Civilian Aspects of Crisis Management 167 CPCC (Civilian Planning and Conduct Capability) 32, 106, 112 see also civilian CSDP missions Crisis Management and Planning Directorate 167 EUMS see military CSDP missions, EUMS (EU Military Staff) PRISM (Prevention of Conflicts, Rule of Law/Security Sector Reform, Integrated Approach, Stabilization and Mediation) Division 106 energy policy and CFSP 331–2, 351–3, 507–8 choice of legal basis 332–4, 343–4, 352–3 autonomous instruments on energy security 334–5 international agreements with energy provisions 335–8 Member States’ bilateral energy agreements, competence to conclude 336, 352 see also Member States’ CFSP role restrictive measures with energy policy implications 338–9

Index 527 see also restrictive measures energy relations with Russia 331, 337–9 see also Russia Gazprom, EU law applications to 345, 346, 347, 348–9, 351 energy security focus of CFSP concerns and uncertainties about 343 development of 339–42 Energy-related Intergovernmental Agreements Decision, forthcoming review 342–3 EU energy market regulation, applied to third country suppliers antitrust law 345–9 merger control law 349–51 Third Energy Package unbundling rules (’Gazprom clause’) 344–5 ENISA (European Union Agency for Network and Information Security) 357, 364 ENP (European Neighbourhood Policy) 107, 509–10 2015 Review 313, 319, 329, 330 challenges faced by 312–13, 327–9 conditionality under 317–19 ‘specific agreements’ 323–4 Deep and Comprehensive Free Trade Agreements 2, 243, 324, 337 Eastern Partnership 313 see also Georgia; Moldova, EU trade relations with; Russia; Ukraine ENP-CFSP nexus in practice 325–9 health security work 387 see also public health and CFSP institutional roles and conflicts 319–22 see also inter-institutional conflicts foreign policy instruments, EEAS operational role 322–3 legal basis 313–17, 329–30 foreign policy instruments 324–5 principles 317 environmental protection, EU trade restrictions 241–3 see also CCP (common commercial policy) and CFSP epidemics see public health and CFSP ethics see law versus ethics in the CFSP EU as post-national realist power 398–400, 442–4, 514 CSDP, minilateralism of see CSDP (common security and defence policy), minilateralism of geopolitics of contemporary risks 1–2, 394–5, 408–10, 477

Eurasia as geopolitical space 410–11 see also Georgia; Russia; Ukraine Europe as geopolitical space 410 Middle East and North Africa as geopolitical space 411–12 see also Middle East and North Africa liberal realism as EU’s deep structure see also capabilities-expectations gap theory, EU’s power in international relations CFSP’s unacknowledged realism 400–403 EU as a hard, soft or ‘smart’ power 90, 403, 470–73, 476 Global Strategy on Foreign and Security Policy, liberal realism of 405–8, 479–80 see also Global Strategy on Foreign and Security Policy (2016) realist critiques of ‘normative power Europe’ theory 401–3 see also ‘normative power Europe,’ CFSP contribution to TEU, liberal realism of 404–5, 406 see also TEU (Treaty on European Union) Nietzsche’s vision of post-national Europe, contemporary relevance 394–8, 444, 514 post-2015 migration policies see migrant crisis (2015) scope, teleology and paths of CFSP geographical scope: regionalism and globalism 413 paths of action: multilateralism, unilateralism, minilateralism 415–24 teleological scope: universalism and particularism 413–15 see also CFSP (common foreign and security policy), theoretical perspectives EU external representation in CFSP field 44–5, 63–4, 500–501 ad hoc diplomacy 60–63 Iran, nuclear programme negotiations see Iran, WMD non-proliferation and disarmament Kosovo see Kosovo Russia-Ukraine crises see Ukraine at bilateral level 57–8 China 59, 64 EU delegations ‘at different speeds’ 58–60

528 Research handbook on the EU’s common foreign and security policy Member State concerns for own bilateral relations 58, 63 see also Member States’ CFSP role, support for CFSP actions pre-Lisbon Treaty Commission delegations 58 Russia 60 United States 59–60 by High Representative/EEAS 25, 27, 44, 48–9, 500 see also EEAS (European External Action Service); High Representative of the Union for Foreign Affairs and Security Policy agency problem 51–2 Lisbon Treaty, effect on EU external representation 46–9, 54–5 see also Treaty of Lisbon 2007 in multilateral fora 53–4 EU-UN cooperation in crisis management and peacebuilding 38–9, 44 France and UK as permanent members of the UN Security Council 50, 54, 55–6, 57, 63, 405–6, 420–21, 466–9 see also France; United Kingdom humanitarian aid context 279–80 see also humanitarian aid policy and CFSP Member States’ attitudes 54, 55–6 see also Member States’ CFSP role, support for CFSP actions multilateralism of CFSP 415–17 ‘on the spot’ internal coordination by EU delegates 56 UN General Assembly, EU’s enhanced observer status 37, 55–6 see also UN (United Nations) politics of conflicts with Member States see Member States’ CFSP role, support for CFSP actions inter-institutional conflicts, scope for 48–9, 272 WMD non-proliferation diplomacy see weapons of mass destruction (WMD), EU’s non-proliferation strategy EU power in international relations see capabilities-expectations gap theory, EU’s power in international relations EUMS (EU Military Staff) see military CSDP missions, EUMS (EU Military Staff)

Europe and Eurasia as geopolitical space 410–11 see also EU as post-national realist power; Georgia; Russia; Ukraine Europe in the World: Towards a More Effective EU Foreign and Security Strategy (House of Lords report, 2015–16) 406–7 European Commission’s CFSP role 2, 27, 500 CFSP financing 27, 40 European Defence Fund 36, 129, 155, 169, 176, 505–6 EU external representation see EU external representation in CFSP field High Representative’s Commission roles see also High Representative of the Union for Foreign Affairs and Security Policy as Commissioners’ Group on External Action chair 21, 24, 39, 94 conflicts between Commission and High Representative 40–41, 49, 501 see also inter-institutional conflicts as a Vice-President 21, 24, 27, 39–41, 94, 279, 320–21, 501 humanitarian aid-CFSP nexus 279–80, 291 see also humanitarian aid policy and CFSP Reflection Paper on Harnessing Globalization (2017) 407 European Council’s CFSP role 2, 8, 23 decision-making by qualified majority voting 39 policy-setting decisions 17, 20, 30, 42, 500 see also CFSP decisions European Court of Human Rights, scope to review CFSP actions 75–8 see also Court of Justice (CJEU) jurisdiction on CFSP; human rights European Defence Agency 32, 159, 161, 175, 178 cyber defence policy role 367–8 see also cybersecurity policies, cyber defence see also CSDP (common security and defence policy) European Intervention Initiative proposal 180 European Neighbourhood Policy see ENP (European Neighbourhood Policy) European Parliament’s CFSP role 2, 28, 500 CFSP financing 28

Index 529 Foreign Affairs and Security and Defence Committees, High Representative attendance 28 see also High Representative of the Union for Foreign Affairs and Security Policy Health Threats Decision (Decision 1082/2013/EU) 388–90 see also public health and CFSP international agreements, restricted role 11–12, 49 European Security Strategy 161, 165, 186, 236, 479, 493 expectations-capabilities gap see capabilities-expectations gap theory external action CFSP see CFSP (common foreign and security policy) on cybersecurity see cybersecurity policies, external action on cybersecurity EEAS see EEAS (European External Action Service) ENP see ENP (European Neighbourhood Policy) EU external representation see EU external representation in CFSP field EU’s mandate 5–6 EU’s power in international relations see capabilities-expectations gap theory, EU’s power in international relations High Representative see High Representative of the Union for Foreign Affairs and Security Policy objectives see CFSP (common foreign and security policy), objectives policy coherence choice of legal basis see CFSP decisions, choice of legal basis ‘comprehensive approaches’ 291–3 cybersecurity policies see cybersecurity policies development cooperation policy and CFSP see development cooperation policy and CFSP, policy coherence energy policy see energy policy and CFSP health security see public health and CFSP humanitarian aid policy and CFSP see humanitarian aid policy and CFSP, policy coherence

‘integrated approach’ aim see ‘integrated approach’ aim to promote ‘normative power Europe’ see ‘normative power Europe,’ CFSP contribution to quest for 287–9 security policy, internal and external dimensions of 297–302 see also AFSJ (area of freedom, security and justice) and CFSP trade and CFSP 236–7 see also CCP (common commercial policy) and CFSP external representation of the EU see EU external representation in CFSP field Fissile Material Cut-off Treaty proposal 196 Foreign Affairs Council see Council of the European Union’s CFSP role, Foreign Affairs Council France foreign policy relations with UK 467–9 see also United Kingdom St Malo Declaration (1998) 157, 160 see also CSDP (common security and defence policy) influence on CFSP 418–19, 424, 441, 467, 506 NATO military intervention in Libya (2011), role of France 420–21, 484–5 see also Libya; NATO ‘Normandy format’ negotiations with Russia over acts in Donbas 43, 63, 419, 500 see also Russia; Ukraine November 2015 terrorist attacks, invocation of mutual assistance clause 126–7, 130, 158, 328, 422, 504 see also terrorism as a soft power 471 Suez crisis (1956) 490 UN Security Council permanent membership 50, 54, 55–6, 57, 63, 405–6, 420–21, 466–9 WMD disarmament, views on 198–9 see also weapons of mass destruction (WMD), EU’s non-proliferation strategy see also Member States’ CFSP role, E3 (France, Germany and UK)

530 Research handbook on the EU’s common foreign and security policy free trade agreements see CCP (common commercial policy) and CFSP fundamental rights of the EU CJEU’s CFSP jurisdiction, relevance for determining 11, 68, 70, 73, 86, 211–12, 256, 449, 499 see also Court of Justice (CJEU) jurisdiction on CFSP extraterritorial application 425–6 Opinion 2/13 see Opinion 2/13 on the Draft Agreement on the Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms restrictive measures, application to see restrictive measures, fundamental rights and rule of law implications right to effective judicial protection 11, 68, 70, 73, 82–3, 86, 224, 339, 449, 499 trade measures, application to see CCP (common commercial policy) and CFSP see also law versus ethics in the CFSP G7 and G20 EU and Member State membership 469 G7 Global Health Security Initiative 383, 384–5, 386 see also public health and CFSP general principles of EU law, CFSP application coherence principle see external action, policy coherence loyalty principle see loyalty principle solidarity principle 20, 42, 98, 124, 157, 371, 429–33 see also Member States’ CFSP role, support for CFSP actions transparency principle 8–9 generalized system of preferences (GSP+) regime 244–8 see also CCP (common commercial policy) and CFSP geopolitics see EU as post-national realist power, geopolitics of contemporary risks Georgia as CFSP contributor 326 civilian CSDP missions to see also civilian CSDP missions EUJUST THEMIS mission 99, 103, 108 EUMM Georgia 326

EU’s Deep and Comprehensive Free Trade Agreement with 2, 243 see also CCP (common commercial policy) and CFSP Russo-Georgian war, 2008 peace deal 61, 326 see also Russia see also ENP (European Neighbourhood Policy) Germany influence on CFSP 418–19, 424, 441, 467 military deployment in Mali 126–7 see also Mali Nordrhein-Westfalen Administrative Court of Appeal (OVG) decision in 4 A 2948/1 148–51 see also responsibility and liability for CSDP operations, jurisdiction of Member State courts ‘Normandy format’ negotiations with Russia over acts in Donbas 43, 63, 419, 500 see also Russia; Ukraine response to 2015 migrant crisis 423 see also migrant crisis (2015) as a soft power 471 see also Member States’ CFSP role, E3 (France, Germany and UK) Global Strategy on Foreign and Security Policy (2016) 18, 19, 21, 94, 107, 289, 403, 493, 499–500 on ‘bottom up’ approach to civilian missions 108 see also civilian CSDP missions on CFSP multilateralism 417 see also EU as post-national realist power as ‘cached unilateralism’ 420 on CSDP capabilities, new ‘Level of Ambition’ 127–8, 160–61, 169–70, 174–5, 180–81, 506 see also CSDP (common security and defence policy), capabilities on cybersecurity 360 see also cybersecurity policies on development objectives 266 see also development cooperation policy and CFSP on EU’s power in international relations 462, 463–4 see also capabilities-expectations gap theory, EU’s power in international relations

Index 531 EU as both hard and soft power 90, 403, 470–72, 473 on global security threats 409–10 implementation report (2017) 299 ‘integrated approach’ aim see ‘integrated approach’ aim on internal and external dimensions of security policy 299 see also AFSJ (area of freedom, security and justice) and CFSP liberal realism of 405–8, 479–80 see also EU as post-national realist power, liberal realism as EU’s deep structure on trade-foreign policy nexus 236, 246 see also CCP (common commercial policy) and CFSP on WMD non-proliferation strategy see weapons of mass destruction (WMD), EU’s non-proliferation strategy H v Council of the European Union (C-455/14P) 77–8, 81, 447–9, 455, 456 on the EU’s non-contractual liability 139–42, 147 see also responsibility and liability for CSDP operations on the meaning of ‘restrictive measures’ 212–13 see also restrictive measures rule of law and fundamental rights concerns, relevance to CJEU jurisdiction 70, 73, 449 see also Court of Justice (CJEU) jurisdiction on CFSP see also Bosnia and Herzegovina, EU police mission to health security policy see public health and CFSP, health security High Representative of the Union for Foreign Affairs and Security Policy 2, 8, 21, 22, 36, 43, 271, 488, 499 CFSP duties attendance at European Parliament Foreign Affairs and Security and Defence Committees 28 to ‘conduct’ CFSP 25, 92, 277 external representation of EU see EU external representation in CFSP field, by High Representative/EEAS international agreements, negotiation 39–40

see also international agreements under CFSP promoting coherence of EU’s external action 290–91 conflicts with European Commission 40–41, 49, 501 see also inter-institutional conflicts origin of the role 22, 47 right of initiative decisions 30–31, 40 see also CFSP decisions international agreements 11, 25, 40 see also international agreements under CFSP roles Commissioners’ Group on External Action chair 21, 24, 39, 94 EEAS oversight see EEAS (European External Action Service) EU special representatives oversight 29 as a European Commission Vice-President 21, 24, 27, 39–41, 94, 279, 320–21, 501 see also European Commission’s CFSP role Foreign Affairs Council chair 21, 23, 24, 277, 279–80 human rights cybersecurity policies, respect for 369–70 see also cybersecurity policies EU fundamental rights see fundamental rights of the EU European Court of Human Rights, scope to review CFSP actions 75–8 see also Court of Justice (CJEU) jurisdiction on CFSP in health security context 392 see also public health and CFSP in trade context see also CCP (common commercial policy) and CFSP human rights clauses in trade and investment agreements 239–40 trade-restrictive measures promoting human rights 231, 241–3 treatment of migrants in Libya, human rights concerns 305–6 see also Libya see also ‘normative power Europe,’ CFSP contribution to humanitarian aid policy and CFSP 276, 280–82, 294–5, 512

532 Research handbook on the EU’s common foreign and security policy Comprehensive Approach to External Conflicts and Crises (2013) 265–6, 281–2, 283, 329 see also development cooperation policy and CFSP; ‘integrated approach’ aim humanitarian aid policy European Commission’s role 279–80, 291 European Consensus on Humanitarian Aid 279 scope and principles 278–9 policy coherence see also external action, policy coherence alternative complementarity approach advocated 293, 295 ‘comprehensive approaches’ 291–3 High Representative’s role 290–91 see also High Representative of the Union for Foreign Affairs and Security Policy quest for 286–9 risks for the independence/success of the humanitarian aid policy 282–6, 290, 293–4 Treaty framework 289–90 public health emergencies see public health and CFSP see also CSDP (common security and defence policy) hybrid security threats 97, 127, 128, 327 EU and NATO cooperation on 100–101, 170, 171, 180 see also NATO, EU relations with health security threats as 388–9 see also public health and CFSP Joint Framework on Countering Hybrid Threats: a European Union Response (High Representative and European Commission Communication) 388 ‘mission creep’ concerns 116–17, 503 ‘real world’ and cybersecurity threats 128, 368 see also cybersecurity policies terrorism see terrorism Implementation Plan for Security and Defence (2016) 107, 127–8, 160, 174–5, 502, 505 see also CSDP (common security and defence policy) India nuclear weapons policy 193–4, 203

see also weapons of mass destruction (WMD), EU’s non-proliferation strategy trade preferences granted to Pakistan, challenged at WTO 245 see also CCP (common commercial policy) and CFSP infectious diseases see public health and CFSP ‘integrated approach’ aim capacity and resilience-building focus of civilian CSDP misssions 95, 97, 99, 108 see also civilian CSDP missions between civilian and military CSDP missions 104, 106, 109, 111, 123–4, 160, 503 see also CSDP (common security and defence policy) Comprehensive Approach to External Conflicts and Crises (2013) 265–6, 281–2, 283, 329 see also development cooperation policy and CFSP; humanitarian aid policy and CFSP differentiated integration ‘coalitions of the willing’ 419, 436 enhanced cooperation 34, 419, 437 minilateralism of CFSP 417–19, 424 see also EU as post-national realist power PESCO see PESCO (permanent structured cooperation) inter-institutional conflicts, implications for the integrated approach 41, 49, 106, 501–2 see also inter-institutional conflicts policy coherence see external action, policy coherence see also Global Strategy on Foreign and Security Policy (2016) inter-institutional conflicts 105–7 on ENP see ENP (European Neighbourhood Policy), institutional roles and conflicts EU institutions and Member States see Member States’ CFSP role, support for CFSP action European Commission and Council of the European Union 106–7, 121–2 European Commission and High Representative 40–41, 49, 501

Index 533 implications for ‘integrated approach’ aim 41, 49, 106, 501–2 see also ‘integrated approach’ aim over EEAS role 492 see also EEAS (European External Action Service) in adopting restrictive measures 223 see also restrictive measures in development cooperation 271–3 see also development cooperation policy and CFSP over EU external representation 48–9, 272 see also EU external representation in CFSP field see also CFSP (common foreign and security policy), institutional roles international agreements under CFSP choice of legal basis 13, 14 see also Court of Justice (CJEU) jurisdiction on CFSP, CFSP legal basis determinations agreements under ENP 324–5 see also ENP (European Neighbourhood Policy) combined AFSJ and CFSP objectives 16, 308 see also AFSJ (area of freedom, security and justice) and CFSP combined development cooperation and CFSP objectives 257, 270 see also development cooperation policy and CFSP predominant purpose test 12 CJEU jurisdiction to review 16–17, 69, 70 see also Court of Justice (CJEU) jurisdiction on CFSP European Parliament’s restricted role 11–12, 49 see also European Parliament’s CFSP role rights of initiative High Representative 11, 25, 40 see also High Representative of the Union for Foreign Affairs and Security Policy Member States 25, 40 see also Member States’ CFSP role rules on entering 5, 11–12 conclusion by Council of the European Union 11–12, 19, 270 see also Council of the European Union’s CFSP role

negotiation by High Representative/EEAS 39–40 see also EEAS (European External Action Service); High Representative of the Union for Foreign Affairs and Security Policy TFEU Art 218 general rules, application 11 international courts, scope to review CFSP actions 78–80 see also Court of Justice (CJEU) jurisdiction on CFSP international organizations Draft Articles on the Responsibility of International Organizations 134, 152, 505 EU representation in see EU external representation in CFSP field, in multilateral fora G7 and G20 see G7 and G20 International Red Cross and Red Crescent Movement 278 see also humanitarian aid policy and CFSP Médecins Sans Frontières 285–6, 290 see also public health and CFSP multilateralism of CFSP 415–17 NATO see NATO UN see UN (United Nations) WHO see WHO (World Health Organization) WTO see WTO (World Trade Organization) international trade-foreign policy nexus see CCP (common commercial policy) and CFSP Iran, WMD non-proliferation and disarmament EU sanctions 189, 190, 209, 223–4, 226, 481, 482 see also restrictive measures EU’s role in negotiations 187–9, 481–2 E3 role 481, 482 see also Member States’ CFSP role, E3 (France, Germany and UK) Joint Comprehensive Plan of Action 44, 61, 189–90, 419 see also Middle East and North Africa; weapons of mass destruction (WMD), EU’s non-proliferation strategy Israel nuclear weapons policy 195

534 Research handbook on the EU’s common foreign and security policy see also weapons of mass destruction (WMD), EU’s non-proliferation strategy occupation of Palestinian territories EU diplomacy respecting 482 UN Security Council Resolution 2334 (2016) condemning Israel’s settlement activity 468 US policy on 468, 482, 483 see also United States, foreign policy see also Middle East and North Africa Jordan, EU trade concessions to 244 see also CCP (common commercial policy) and CFSP; Middle East and North Africa Kimberley Process diamond certification scheme 231, 511 Kissinger, Henry 412, 480, 488–9 Kosovo conflict mediation 61–2 EU-facilitated dialogue with Serbia 39, 44, 62 EULEX Kosovo mission 38, 62, 98, 464 see also civilian CSDP missions NATO intervention in Kosovo war 416 state recognition 495 see also CSDP (common security and defence policy), missions Laeken Declaration on the Future of the European Union (2001) 476, 477, 482–3, 489 law versus ethics in the CFSP 515 case studies EUPM Bosnia see Bosnia and Herzegovina, EU police mission to; H v Council of the European Union (C-455/14P) EU’s relationship with Ukraine, law versus ethics analysis 449–52, 455, 456 see also Ukraine resolution of law and ethics conflicts inter-legality framework for 452–4 practical wisdom (phronesis) 454–6, 458 rule of law and fundamental rights concerns ‘normative power Europe’ see ‘normative power Europe,’ CFSP contribution to

relevance to CJEU jurisdiction 11, 68, 70, 73, 86, 211–12, 256, 449, 499 see also Court of Justice (CJEU) jurisdiction on CFSP too much, too little or just enough law 445–6, 457–8 see also CFSP (common foreign and security policy), theoretical perspectives legal basis, choice of see CFSP decisions, choice of legal basis liability for CSDP operations see responsibility and liability for CSDP operations liberal-realism of CFSP see EU as post-national realist power Libya EU crisis management in 117–18 EUBAM Libya 100, 118, 167, 281 see also civilian CSDP missions as geopolitical space 411, 413 NATO military intervention (2011), role of France 420–21, 484–5 see also France; NATO Operation Sophia (combating people smuggling via the Mediterranean) 114, 115–19, 130, 302–7, 421–2, 503, 509 see also AFSJ (area of freedom, security and justice) and CFSP; migrant crisis (2015); military CSDP missions treatment of migrants, human rights concerns 305–6 WMD non-proliferation and disarmament programme, EU support for 186–7 see also weapons of mass destruction (WMD), EU’s non-proliferation strategy see also Middle East and North Africa Lisbon Treaty see Treaty of Lisbon 2007 loyalty principle as basis for CJEU jurisdiction on CFSP 72 see also Court of Justice (CJEU) jurisdiction on CFSP directing Member State support for CFSP actions 42, 43, 50–51, 56, 57, 63, 497–8 see also Member States’ CFSP role, support for CFSP actions Mali EUCAP Sahel Mali 97, 100, 103 see also civilian CSDP missions

Index 535 development objectives of 266–7 see also development cooperation policy and CFSP Germany’s military deployment in 126–7 ‘stabilization action’ in 35 ‘train and equip’ mission to 113, 119–20, 122–3, 130 see also military CSDP missions maritime operations see naval operations measures extraterritorial effects 217–18 Médecins Sans Frontières 285–6, 290 see also public health and CFSP Member States’ CFSP role 8, 20, 41–3 bilateral energy agreements, competence to conclude 336, 352 see also energy policy and CFSP Energy-related Intergovernmental Agreements Decision, forthcoming review 342–3 CSDP role civilian missions see civilian CSDP missions, Member State support for PESCO see PESCO (permanent structured cooperation) resources provision see CSDP (common security and defence policy), capabilities responsibility and liability see responsibility and liability for CSDP operations E3 (France, Germany and UK) see also France; Germany; United Kingdom Brexit, impact on Franco-German power 418, 467, 469, 494–5 E3 role in Iranian WMD non-proliferation and disarmament negotiations 481, 482 see also Iran, WMD non-proliferation and disarmament France and UK as permanent members of the UN Security Council 50, 54, 55–6, 57, 63, 405–6, 420–21, 466–9 Germany and France, influence on CFSP 418–19, 424, 441, 467, 506 ‘Normandy format’ negotiations with Russia over acts in Donbas 43, 63, 419, 500 see also Russia; Ukraine foreign and defence policies, CFSP relationship with 6, 42, 49–50, 497–8

EU and Member States’ interests, relationship between 155–6, 463–4, 466–9, 482 Member State concerns for bilateral relations 58, 63, 328 Member State unilateralism 419–24 minilateralism of CFSP 417–19, 424 Member States’ colonial history, contemporary impacts 483–5 national courts responsibility and liability for CSDP operations, jurisdiction see responsibility and liability for CSDP operations, jurisdiction of Member State courts scope to review CFSP actions 81–6, 87, 146–7 see also Court of Justice (CJEU) jurisdiction on CFSP rights of initiative 42 decisions 31, 40 see also CFSP decisions international agreements 25, 40 see also international agreements under CFSP support for CFSP actions see also EU external representation in CFSP field agency problem 51–2 bureaucratic politics 53, 104–5 ‘coalitions of the willing’ 419, 436 concerns for own bilateral relations 58, 63, 328 enhanced cooperation 34, 419 loyalty principle 42, 43, 50–51, 56, 57, 63, 497–8 opposition to direct EU representation in international organizations 54, 55–6, 63 PESCO see PESCO (permanent structured cooperation) restrictive measures, non-compliance with 210–11 see also restrictive measures solidarity principle 20, 42, 98, 124, 157, 371, 429–33 Middle East and North Africa Arab Spring uprisings (2011) 124, 312, 317, 490 as geopolitical space 411–12 see also EU as post-national realist power

536 Research handbook on the EU’s common foreign and security policy interests versus values in EU’s policies towards 490–91 Iran, WMD non-proliferation and disarmament see Iran, WMD non-proliferation and disarmament Israel see Israel Jordan, EU trade concessions to 244 see also CCP (common commercial policy) and CFSP Libya see Libya migrant crisis (2015) see migrant crisis (2015) Suez crisis (1956) 490 Syria, WMD proliferation see Syria, WMD proliferation Tunisia, EU trade relations with 251, 252 see also CCP (common commercial policy) and CFSP Turkey see Turkey migrant crisis (2015) 1, 409, 443, 444 Council Decision 2015/1601/EU on relocation of migrants from Italy and Greece 429–33 EU-Turkey Statement of 18 March 2016 to resolve the crisis 433–5 Germany’s response 423 see also Germany Operation Sophia (combating people smuggling via the Mediterranean) 114, 115–19, 130, 302–7, 421–2, 503, 509 see also AFSJ (area of freedom, security and justice) and CFSP; military CSDP missions post-crisis case law 435 see also Court of Justice (CJEU) jurisdiction on CFSP NF, NG and NM v European Council (T-192/16, T-193/16, T-257/16) 433–5 Slovak Republic and Hungary v Council of the European Union (C-643/15 and C-647/15) 429–33 X and X v État belge (C-638/16 PPU) 424–9 military CSDP missions 111–12, 130–31 capabilities 180–81, 505–6 see also CSDP (common security and defence policy), capabilities Brexit implications 113–14, 125–6, 130–31, 174, 179–80, 311 see also United Kingdom, Brexit (withdrawal from EU) development of 161–4

EU Battlegroups 115–16, 161, 176, 177 European Intervention Initiative proposal 180 future development of 174–6 PESCO see PESCO (permanent structured cooperation) pooling and sharing initiatives 163, 168, 175, 366 command and control (C2) 113–14 chain of command 114 coordination with civilian missions 101 see also civilian CSDP missions ‘integrated approach’ aim 104, 106, 109, 111, 123–4, 160, 503 see also ‘integrated approach’ aim decisions to deploy 112–13 see also CFSP decisions EUFOR Chad/RCA (peacekeeping mission) 111, 148, 267, 281 see also Central African Republic EUMS (EU Military Staff) 31, 112, 114, 125, 277 see also EEAS (European External Action Service) cyber defence policy role 368 see also cybersecurity policies, cyber defence EU Operations Headquarters (EU OHQ) proposal 113, 125, 500 Military Planning and Conduct Capability 32, 37, 113, 125–6, 175, 440 financing 119 Athena mechanism see Athena mechanism Coordinated Annual Review on Defence 129, 175–6 European Defence Fund 36, 129, 155, 169, 176, 505–6 resource limitations 129 security-development nexus, funding challenges 121–4 ‘train and equip’ missions, funding challenges 119–21, 123, 503 hybrid operations see hybrid security threats ‘mission creep’ concerns 116–17, 503 missions in 1991–2017, list of 96, 327 mutual assistance clause, invoked after November 2015 terrorist attacks in France 126–7, 130, 158, 328, 422, 504 see also terrorism naval operations see naval operations

Index 537 objectives 127–8 see also CSDP (common security and defence policy), objectives politico-strategic planning structures 112–14, 115, 124–6 responsibility and liability for see responsibility and liability for CSDP operations SOFAs (status of forces agreements) 77 EU Model SOFA 80, 135–6 ‘respect’ for local law provisions 80 third party claims under 134–7 see also responsibility and liability for CSDP operations ‘train and equip’ missions 113, 119–20, 122–3, 130, 281, 503 see also Mali; Somalia see also CSDP (common security and defence policy) minilateralism of CFSP 417–19, 424 see also EU as post-national realist power; Member States’ CFSP role Mogherini, Federica (High Representative, 2014–) 39, 51–2, 61, 190, 199, 300, 306 on EU as both hard and soft power 90, 403, 470–72 see also capabilities-expectations gap theory, EU’s power in international relations; EU as post-national realist power on shared interests of EU and Member States 463–4 see also High Representative of the Union for Foreign Affairs and Security Policy Moldova, EU trade relations with 249 Deep and Comprehensive Free Trade Agreement 2, 243 EUBAM to Moldova and Ukraine 244 see also CCP (common commercial policy) and CFSP; ENP (European Neighbourhood Policy) multilateralism of CFSP 415–17 EU representation in multilateral fora see EU external representation in CFSP field, in multilateral fora see also EU as post-national realist power mutual assistance clause, invoked by France after November 2015 terrorist attacks 126–7, 130, 158, 328, 422, 504 see also France; military CSDP missions; terrorism

national courts see Member States’ CFSP role, national courts NATO 109, 158 doubts about US observing collective defence guarantees 171–2, 173, 179 EU relations with 1, 118–19, 170–73, 180 Coordinated Annual Review on Defence 175–6 cybersecurity cooperation 367, 368–9 see also cybersecurity policies, cyber defence hybrid security threats 100–101, 170, 171, 180 see also hybrid security threats NATO-EU Capability Group 175 Member State commitments within 7, 50, 54 military intervention in Libya (2011), role of France 420–21, 484–5 see also France; Libya NATO Defence Planning Process 170, 175, 178 naval operations 114, 115–16, 128, 129 Operation Atalanta (counter-piracy off the Horn of Africa) 111, 113, 118, 149–51, 281 European Parliament v Council of the European Union (C-263/14) (Tanzania Agreement case) 16–17, 69, 122, 308–10 European Parliament v Council of the European Union (C-658/11) (Mauritius) 67–8, 308 Operation Sophia (combating people smuggling via the Mediterranean) 114, 115–19, 130, 302–7, 421–2, 503, 509 see also AFSJ (area of freedom, security and justice) and CFSP; migrant crisis (2015) network and information security see cybersecurity policies, network and information security (NIS) New European Consensus on Development 261–3, 511 see also development cooperation policy and CFSP Nietzsche, Friedrich 394, 395–8, 444, 514 Niger development assistance to 263, 265 see also development cooperation policy and CFSP

538 Research handbook on the EU’s common foreign and security policy EUCAP Sahel Niger 97, 99, 103, 281, 301 see also civilian CSDP missions non-proliferation of WMD see weapons of mass destruction (WMD), EU’s non-proliferation strategy ‘normative power Europe,’ CFSP contribution to critiques of ‘normative power Europe’ theory EU/Member States’ credibility gap 482–5 realist critiques 401–3 see also EU as post-national realist power cybersecurity diplomacy 369–70 see also cybersecurity policies EU as a soft power 90, 403, 470–72 see also capabilities-expectations gap theory, EU’s power in international relations via civilian CSDP missions 98–101, 109 see also civilian CSDP missions via development cooperation policy 258–60 see also development cooperation policy and CFSP via policy coherence in external action see external action, policy coherence via trade agreements see CCP (common commercial policy) and CFSP see also CFSP (common foreign and security policy), theoretical perspectives; human rights; law versus ethics in the CFSP North Africa see Middle East and North Africa North Korea, nuclear weapons programme 191–2, 196, 203–4 see also weapons of mass destruction (WMD), EU’s non-proliferation strategy Northern Cyprus, EU’s responses to Turkey’s occupation 100, 171, 491 see also Turkey Norway, as a ‘smart’ power 473 nuclear energy, health security risks 375, 377, 384, 385, 386–7, 389 see also public health and CFSP nuclear weapons Comprehensive Nuclear-Test-Ban Treaty 1996 184, 187, 195–6 EU nuclear deterrent proposal 173

EU’s non-proliferation strategy see weapons of mass destruction (WMD), EU’s non-proliferation strategy Fissile Material Cut-off Treaty proposal 196 Treaty on the Non-Proliferation of Nuclear Weapons 1968 182–3, 198 objectives of CFSP see CFSP (common foreign and security policy), objectives Opinion 2/13 on the Draft Agreement on the Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms 71 on external judicial review of CFSP acts 74–5, 87, 402 on judicial review of CFSP acts by CJEU 212 on judicial review of CFSP acts by national courts of Member States 82, 83, 84, 147 see also Court of Justice (CJEU) jurisdiction on CFSP Pakistan EU humanitarian aid to 281 EU trade relations with 245, 248, 251–2 see also CCP (common commercial policy) and CFSP nuclear weapons policy 194, 196, 203 see also weapons of mass destruction (WMD), EU’s non-proliferation strategy Palestine EUPOL COPPS (EU Coordinating Office for Palestinian Police Support) 99 see also civilian CSDP missions; Middle East and North Africa Israel’s occupation see Israel, occupation of Palestinian territories pandemics see public health and CFSP peacebuilding see civilian CSDP missions PESCO (permanent structured cooperation) 33–4, 37–8, 43, 129–30, 158, 159, 419, 500 decisions establishing 31, 33–4, 438 EU Battlegroups 115–16, 161, 176, 177 future development of 177–9, 328 self-defence under 439–40 minilateral character of 437–42

Index 539 see also EU as post-national realist power see also military CSDP missions, capabilities ‘Petersberg tasks’ 19, 92–3, 127–8, 156, 416, 502 see also CFSP (common foreign and security policy), objectives phronesis (practical wisdom) 454–6, 458 see also law versus ethics in the CFSP policy coherence see external action, policy coherence Political and Security Committee (PSC) 22 chaired by EEAS 23–4 see also Council of the European Union’s CFSP role, Foreign Affairs Council; EEAS (European External Action Service) decisions to deploy military CSDP missions 112–13 see also military CSDP missions pooling and sharing of military capabilities 163, 168, 175, 366 see also military CSDP missions, capabilities poverty reduction/eradication 256–7, 262, 263–4, 274 see also development cooperation policy and CFSP public health and CFSP 374–6, 512–13 development cooperation, public health promotion 382–3, 390–91 see also development cooperation policy and CFSP Ebola crisis (2014) 1, 281, 385, 390, 391 European Medical Corps 375, 390 EU’s work with international organizations see also international organizations G7 Global Health Security Initiative 383, 384–5, 386 Médecins Sans Frontières 285–6, 290 WHO (World Health Organization) see WHO (World Health Organization) health security 383–7 bioterrorism 383–4, 386–7 see also terrorism; weapons of mass destruction (WMD), EU’s non-proliferation strategy blurring of internal and external dimensions 387–90 CBRN (chemical, biological, radiological and nuclear) risks 375, 377, 384, 385, 386–7, 389

EU Health Security Committee 385, 388, 389–90 Health Threats Decision (Decision 1082/2013/EU) 388–90 human rights concerns 392 see also human rights public health as transboundary security issue 376–9 questions for research and policy 391–2 trade and investment agreements, health protections in 381–2, 391 see also CCP (common commercial policy) and CFSP Qatar, as a ‘smart’ power 473 R. (on the application of PJSC Rosneft Oil Co) v HM Treasury (C-72/15) CJEU jurisdiction on CFSP, relevance of fundamental rights and rule of law concerns 211–12 on CJEU’s jurisdiction to review restrictive measures 208, 213 preliminary rulings 68, 71, 211–12 on national courts’ jurisdiction to review CFSP actions 81, 84, 87, 146–7 see also Court of Justice (CJEU) jurisdiction on CFSP; restrictive measures realism of CFSP see EU as post-national realist power Reflection Paper on Harnessing Globalization (European Commission, 2017) 407 refugee crisis (2015) see migrant crisis (2015) resilience and capacity-building focus of civilian CSDP misssions 95, 97, 99, 108 see also civilian CSDP missions; Global Strategy on Foreign and Security Policy (2016); ‘integrated approach’ aim responsibility and liability for CSDP operations 132–3, 151–3, 504–5 civilian missions, legal personality of 143, 152–3, 505 see also civilian CSDP missions EU liability under TFEU Art 340 137–8 CJEU jurisdictional limits see Court of Justice (CJEU) jurisdiction on CFSP whether conduct attributable to EU 138–42, 152 whether EU proper defendant 142–4

540 Research handbook on the EU’s common foreign and security policy international law on attribution of wrongful conduct, applied to EU 133–5, 152, 505 jurisdiction of Member State courts 145–6, 152, 504 Member State liability for breach of domestic or international law 147–8 Member State liability for breach of EU law 147 Nordrhein-Westfalen Administrative Court of Appeal (OVG) decision in 4 A 2948/1 148–52 third party claims against Member States 148–51 whether exercisable when CJEU jurisdiction excluded 81–6, 87, 146–7 see also Court of Justice (CJEU) jurisdiction on CFSP military missions, scope for claims against Athena mechanism 139, 142, 144, 152–3, 505 see also Athena mechanism; military CSDP missions SOFAs and SOMAs, third party claims under 134–7 see also civilian CSDP missions, SOMAs (status of mission agreements); military CSDP missions, SOFAs (status of forces agreements) see also CSDP (common security and defence policy); Member States’ CFSP role restrictive measures 206, 508 autonomous sanctions EEAS role in adopting 222–3 see also EEAS (European External Action Service) rights of initiative 40 CJEU jurisdiction to review 208–9 see also Court of Justice (CJEU) jurisdiction on CFSP ‘restrictive measures’ definition 212–13 Rosneft case see R. (on the application of PJSC Rosneft Oil Co) v HM Treasury (C-72/15) counter-terrorism measures EU counter-terrorism policy, relationship with 216–17 against ISIL (Da’esh)/Al Qaeda 221, 223, 229

Member States’ terrorism or asylum laws, relationship with 214–16 fundamental rights and rule of law implications closed evidence procedure 214 contribution to CFSP constitutionalization 211–13 reform proposals 227–9 tension between legal and political objectives 218–21 trends in litigation 224–7 giving effect to UN sanctions 210 Kadi and Al Barakaat International Foundation v Council of the European Union (C-402/05 P and C-415/05 P) 5, 209, 453 relisting of Kadi after CJEU annulment decision 219 legal basis 207 see also Court of Justice (CJEU) jurisdiction on CFSP, CFSP legal basis determinations European Parliament v Council of the European Union (C-130/10) (Smart sanctions) 12, 14, 16, 309–10 sanctions with energy policy implications 338–9 see also energy policy and CFSP listing criteria 223–4, 225 regime sanctions Iran 189, 190, 209, 223–4, 226, 481, 482 see also Iran, WMD non-proliferation and disarmament Russia 42, 217–18, 221–2, 332, 338–9 see also Ukraine, Russia’s annexation of Crimea Syria 224 see also Syria, WMD proliferation trade-restrictive measures see CCP (common commercial policy) and CFSP unique nature of 206 cross-Treaties legal basis 207 direct application to natural and legal persons 207–8 external control over 209–10 level of national disobedience 210–11 under WMD non-proliferation strategy, effectiveness of 202 see also weapons of mass destruction (WMD), EU’s non-proliferation strategy

Index 541 rule of law promoted by CFSP see law versus ethics in the CFSP, rule of law and fundamental rights concerns; ‘normative power Europe,’ CFSP contribution to Russia EU delegation in 60 see also EU external representation in CFSP field, at bilateral level EU’s energy relations with see energy policy and CFSP, energy relations with Russia hostility to Europe anticipated by Nietzsche 394, 395, 397 opposition to EU trade relations with Eastern Partnership 249–50 see also CCP (common commercial policy) and CFSP restrictive measures imposed on 42, 217–18, 221–2, 332, 338–9 see also restrictive measures Russo-Georgian war, 2008 peace deal 61, 326 see also Georgia security and defence threat posed by 172–3, 410–11 alleged cybersecurity threat 354 see also cybersecurity policies Ukraine, relations with see Ukraine WMD non-proliferation and disarmament EU support for 185–6 see also weapons of mass destruction (WMD), EU’s non-proliferation strategy Russo-US nuclear disarmament programme 198–9 see also ENP (European Neighbourhood Policy) St Malo Declaration (1998) 157, 160 see also CSDP (common security and defence policy) sanctions see restrictive measures Serbian relations with Kosovo see Kosovo sharing and pooling of military capabilities 163, 168, 175, 366 see also military CSDP missions, capabilities sincere cooperation see loyalty principle Singapore, as a ‘smart’ power 473 ‘smart’ power 472–3 see also capabilities-expectations gap theory, EU’s power in international relations

SOFAs see military CSDP missions, SOFAs (status of forces agreements) Solana, Javier (High Representative, 1999–2009) 47, 51, 60–61, 186, 187, 341 see also High Representative of the Union for Foreign Affairs and Security Policy solidarity principle 20, 42, 98, 124, 157, 371, 429–33 see also Member States’ CFSP role, support for CFSP actions Somalia EU support to the federal institutions of 284–5 EUCAP Somalia 97, 100 see also civilian CSDP missions humanitarian aid to 283, 512 see also humanitarian aid policy and CFSP Operation Atalanta see naval operations, Operation Atalanta (counter-piracy off the Horn of Africa) ‘train and equip’ mission to 113, 119–20, 122–3, 130, 281 see also military CSDP missions see also military CSDP missions SOMAs see civilian CSDP missions, SOMAs (status of mission agreements) Suez crisis (1956) 490 sustainable development, EU trade restrictions 241–3 see also CCP (common commercial policy) and CFSP Syria, WMD proliferation 192–3 EU sanctions 224 see also restrictive measures see also Middle East and North Africa; weapons of mass destruction (WMD), EU’s non-proliferation strategy terrorism 1 bioterrorism 383–4, 386–7 see also public health and CFSP; weapons of mass destruction (WMD), EU’s non-proliferation strategy CSDP counter-terrorism missions 33 see also civilian CSDP missions EUCAP Sahel Niger 97, 99, 103, 281, 301 see also Niger EUPOL Afghanistan 97, 98, 99–100, 103, 107, 280

542 Research handbook on the EU’s common foreign and security policy see also Afghanistan Framework Decision 2002/475/JHA on Combating Terrorism 214–15, 216–17 Islamic fundamentalism in Middle East and North Africa 411–12 see also Middle East and North Africa mutual assistance clause, invoked after November 2015 attacks in France 126–7, 130, 158, 328, 422, 504 see also France; military CSDP missions Operation Atalanta see naval operations, Operation Atalanta (counter-piracy off the Horn of Africa) restrictive measures combating see restrictive measures, counter-terrorism measures see also AFSJ (area of freedom, security and justice) and CFSP TEU (Treaty on European Union) 5 Art 3(5): objectives of EU’s ‘relations with the wider world’ 5–6, 234, 258–9, 260, 296, 315, 460, 496 Art 8: legal basis of ENP 313–17 see also ENP (European Neighbourhood Policy) Art 21: objectives of EU external action see CFSP (common foreign and security policy), objectives Art 24(1) CFSP jurisdiction of CJEU see Court of Justice (CJEU) jurisdiction on CFSP ‘specific rules and procedures’ 7–12, 13, 48, 86, 497 Art 26: EU institutions’ CFSP mandates 17 see also Council of the European Union’s CFSP role; European Council’s CFSP role; High Representative of the Union for Foreign Affairs and Security Policy Art 28: legal basis for operational actions 17, 34–5, 51 Art 29: legal basis for ‘positions’ 17, 29, 34, 35 Art 30: rights of initiative see High Representative of the Union for Foreign Affairs and Security Policy, right of initiative; Member States, rights of initiative Art 37: legal basis for CFSP international agreements 12 Art 40: ‘non-affect’ clause 7–8, 12, 14, 21, 48, 289–90, 333, 497

Arts 42-46: CSDP see CSDP (common security and defence policy) liberal realism of 404–5, 406 see also EU as post-national realist power TFEU (Treaty on the Functioning of the European Union) CFSP application of general provisions 6 on data protection 7, 9–10 on development cooperation see development cooperation policy and CFSP on energy policy 332–9 see also energy policy and CFSP on enhanced cooperation 34, 437 on EU liability see responsibility and liability for CSDP operations, EU liability under TFEU Art 340 on transparency principle 8–9 on treaty making 11 CFSP provisions 5 Art 215: restrictive measures see restrictive measures Art 275: CFSP jurisdiction of CJEU see Court of Justice (CJEU) jurisdiction on CFSP trade-foreign policy nexus see CCP (common commercial policy) and CFSP transparency principle, CFSP application 8–9 travel bans see restrictive measures treaties under CFSP see international agreements under CFSP Treaty of Lisbon 2007 5 effect on AFSJ 296 see also AFSJ (area of freedom, security and justice) and CFSP effect on CCP 232–3, 246, 252–3 see also CCP (common commercial policy) and CFSP effect on CFSP 496 CFSP functions 21 CFSP objectives 15 see also CFSP (common foreign and security policy), objectives choice of legal basis 12–13, 14, 34, 267–8 see also CFSP decisions, choice of legal basis EU external representation 46–9, 54–5 see also EU external representation in CFSP field

Index 543 institutional framework see CFSP (common foreign and security policy), institutional roles effect on development cooperation policy 255–60, 265, 274 see also development cooperation policy and CFSP effect on ENP see ENP (European Neighbourhood Policy) effect on humanitarian aid policy 286 see also humanitarian aid policy and CFSP Treaty on the Non-Proliferation of Nuclear Weapons 1968 182–3, 198 see also weapons of mass destruction (WMD), EU’s non-proliferation strategy Tunisia, EU trade relations with 251, 252 see also CCP (common commercial policy) and CFSP; Middle East and North Africa ‘turf wars’ between EU institutions see inter-institutional conflicts Turkey EU development aid to 263, 264 EU-Turkey Statement of 18 March 2016 to resolve the migrant crisis 433–5 as a geopolitical space 410, 412–13 see also EU as post-national realist power, geopolitics of contemporary risks occupation of Northern Cyprus, EU’s responses to 100, 171, 491 see also Middle East and North Africa Ukraine crisis diplomacy, February 2014 44, 62 downing of Malaysian Airlines flight MH17 over 327 EU trade relations with 249–50, 251, 252 see also CCP (common commercial policy) and CFSP Deep and Comprehensive Free Trade Agreement 2, 243, 337 EUBAM to Moldova and Ukraine 244 EUAM Ukraine 95, 97, 99, 101 see also civilian CSDP mission EU’s relationship with, law versus ethics analysis 449–52, 455, 456 see also law versus ethics in the CFSP nuclear safety work, EU funding for 200 Russia’s annexation of Crimea 1, 313, 327, 329, 451, 487

ad hoc diplomacy 62–3 see also EU external representation in CFSP field, ad hoc diplomacy EU’s non-recognition policy 185 restrictive measures imposition 42, 217–18, 221–2, 332, 338–9 see also restrictive measures Russia’s destabilization of Donbas 1, 313, 327 ‘Normandy format’ negotiations 43, 63, 419, 500 see also ENP (European Neighbourhood Policy); Russia UN (United Nations) EU-UN cooperation in crisis management and peacebuilding 38–9, 44 see also EU external representation in CFSP field multilateralism of CFSP 415–17 General Assembly, EU’s enhanced observer status 37, 55–6 Security Council France and UK as permanent members 50, 54, 55–6, 57, 63, 405–6, 420–21, 466–9 see also France; United Kingdom Resolution 1540 (2004) on WMD non-proliferation 184 see also weapons of mass destruction (WMD), EU’s non-proliferation strategy Resolution 1973 (2001) authorizing NATO military intervention in Libya 420–21, 484–5 Resolution 2334 (2016) condemning Israel’s settlement activity in Occupied Palestinian Territories 468 UN Charter, EU’s commitment to compliance with 18, 33, 98, 157–8, 240, 404, 406, 420, 460 WHO (World Health Organization) see WHO (World Health Organization) see also EU external representation in CFSP field, in multilateral fora United Kingdom Brexit (withdrawal from EU) 1, 2, 109, 405, 492 CFSP decision-making and coherence, effect on 493–4, 514–15 CSDP capabilities, effect on 113–14, 125–6, 130–31, 174, 179–80, 311, 504

544 Research handbook on the EU’s common foreign and security policy see also CSDP (common security and defence policy), capabilities; military CSDP missions EU as global power, effect on 494–5, 514–15 see also capabilities-expectations gap theory, EU’s power in international relations Franco-German power in the EU, effect on 418, 467, 469, 494–5 Europe in the World: Towards a More Effective EU Foreign and Security Strategy (House of Lords report, 2015–16) 406–7 foreign policy relations with France 467–9 see also France St Malo Declaration (1998) 157, 160 see also CSDP (common security and defence policy) opposition to direct EU representation in UN General Assembly 55–6, 63 see also EU external representation in CFSP field as a soft power 471 Suez crisis (1956) 490 UN Security Council permanent membership 50, 54, 55–6, 57, 63, 405–6, 420–21, 466–9 WMD disarmament, views on 198–9 see also weapons of mass destruction (WMD), EU’s non-proliferation strategy see also Member States’ CFSP role, E3 (France, Germany and UK) United States EU delegation in 59–60 see also EU external representation in CFSP field, at bilateral level foreign policy implications for EU 171–2, 173, 179, 477 policy on Israeli occupation of Palestinian territories 468, 482, 483 see also Israel US exceptionalism 475–6, 477 as a soft power 471, 480 trade protectionism in 2 WMD non-proliferation and disarmament Iran, policies on 189–90 see also Iran, WMD non-proliferation and disarmament

Russo-US nuclear disarmament programme 198–9 see also Russia value promotion by CFSP see law versus ethics in the CFSP, rule of law and fundamental rights concerns; ‘normative power Europe,’ CFSP contribution to weapons CSDP joint disarmament missions 33 see also CSDP (common security and defence policy), missions nuclear deterrent for EU proposal 173 provision under CSDP ‘train and equip’ missions 119–21 see also military CSDP missions small arms and light weapons control, legal basis 121–2 see also CFSP (common foreign and security policy), competence determinations Arms Trade Treaty 2013 240–41 Commission of the European Communities v Council of the European Union (C-91/05) (ECOWAS/small arms case) 121–2, 260, 309–10 WMD see weapons of mass destruction (WMD), EU’s non-proliferation strategy weapons of mass destruction (WMD), EU’s non-proliferation strategy 18 appraisal of 201–3 compliance enforcement differential positions of Member States 198–9, 203 export controls 200–201 strengthening safeguards 200 cooperation with key partners 201 EU’s contribution to international efforts 184–6 India 193–4, 203 Iran see Iran, WMD non-proliferation and disarmament Israel 195 Libya 186–7 see also Libya North Korea 191–2, 203–4 Pakistan 194, 196, 203 Russia 185–6 see also Russia

Index 545 Syria 192–3 future directions 203–4, 506–7 international law framework 182–4 EU’s efforts to strengthen 195–7, 200 Proliferation Security Initiative 196–7 Strategy against Proliferation of Weapons of Mass Destruction (2003) 18, 186, 195 trade-based approaches see also CCP (common commercial policy) and CFSP trade bans 240 WMD conditionality clauses 197–8 WHO (World Health Organization) 375, 379–80, 383 International Health Regulations 2005 375, 380

notification and warning system, shortcomings 384, 385 Public Health Emergency of International Concern definition 383–4 see also public health and CFSP WTO (World Trade Organization) EU trade-facilitative measures, WTO law compatibility 245, 251–2, 253 EU trade-restrictive measures, WTO law compatibility 231, 242–3, 253 health protections in WTO instruments 382 see also CCP (common commercial policy) and CFSP Yugoslavia conflict 474–5