European External Action Service : Promoting Coherence Through Autonomy and Coordination [1 ed.] 9789004323612, 9789004322769

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European External Action Service

Studies in EU External Relations Edited by Marc Maresceau (Ghent University) Editorial Board Marise Cremona (European University Institute) Günter Burghardt ( former EU ambassador Washington) Alan Dashwood (University of Cambridge) Frank Hoffmeister (European Commission) Pieter Jan Kuijper (University of Amsterdam)

VOLUME 11

The titles published in this series are listed at brill.com/seur



European External Action Service Promoting Coherence through Autonomy and Coordination By

Mauro Gatti

LEIDEN | BOSTON

 Cover illustration: The eeas building in Brussels. Picture by Carla Pambianco. Library of Congress Cataloging-in-Publication Data Names: Gatti, Mauro, 1984- author. Title: European External Action Service : promoting coherence through autonomy and coordination / by Mauro Gatti. Description: Leiden ; Boston : Brill Nijhoff, 2016. | Series: Studies in EU external relations ; volume 11 | Based on author’s thesis (doctoral Università di Bologna and Université de Strasbourg, 2013) issued under title: The European External Action Service and the Implementation of the ‘Union Method’ in European Foreign Policy. | Includes bibliographical references. Identifiers: LCCN 2016025104 (print) | LCCN 2016027988 (ebook) | ISBN 9789004322769 (hardback : alk. paper) | ISBN 9789004323612 (E-book) Subjects: LCSH: European External Action Service. | European Union countries--Foreign relations--Law and legislation. Classification: LCC KJE5105.3 .G38 2016 (print) | LCC KJE5105.3 (ebook) | DDC 341.242/2--dc23 LC record available at https://lccn.loc.gov/2016025104

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Ai miei genitori

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Contents Foreword xiii Acknowledgements xvi Abbreviations xvii Introduction 1

Part 1 The Conundrum of External Action Coherence: Is the eeas a Solution? Introduction to Part 1: Coherence and Consistency, Enigmatic Leitmotifs of the External Action 9 1 The Principle of External Action Coherence 13 i The Systemic Consistency/Coherence of Legal Orders 13 1 The Systemic Consistency of the eu’s Legal Order 13 2 Is There a Principle of Systemic Coherence of Legal Orders? 19 ii Notion of External Action Coherence 20 1 The Problem of External Action Consistency/Coherence 21 2 Primary Law References to External Action ‘Consistency’ 23 3 Negative Definition of External Action Coherence: Not a Specification of Systemic Consistency 26 4 Positive Definition of Coherence: A Requirement of Synergy in eu Foreign Affairs 30 5 The Two Dimensions of Coherence: Vertical and Horizontal Synergy 33 6 Irrelevance of Other Forms of Coherence for the Present Analysis 35 iii Legal Effects of External Action Coherence 38 1 Tension between Coherence and Delimitation of eu Policies 39 2 Balancing Vertical Coherence and Conferral of Competences to the eu 41 3 Balancing Horizontal Coherence and Conferral of Powers to eu Organs 49

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3.1 S ubordination of Horizontal Coherence to Delimitation of Powers? 49 3.2  Influence of Coherence on the Interpretation of Conferred Powers 53 2 Implementation of the Principle of Coherence: On the Need for a Coordinator 59 i Challenges for the Implementation of External Action Coherence 59 1 Impossibility to Centralise Power in eu Foreign Affairs 59 2 Difficulties in the Enforcement of Sincere Cooperation 63 ii Coordination of Decision-Making: A Solution for Coherence in eu Foreign Affairs 66 1 Notion of Coordination 67 2 Typology of Coordinating Authorities: Advantages of an Autonomous Coordinator 70 3 Main Dimensions of the Coordinator’s Autonomy 72 3.1 Administrative Autonomy 73 3.2 Operational Autonomy 74 4 Activities of Autonomous Coordinators 76 4.1 Cooperation with Other Authorities 76 4.2 Integration with Other Authorities 78 iii Political Organs as Inadequate Coordinators of eu Foreign Affairs 80 1 Unsuitability of eu Institutions as Coordinators 80 2 The High Representative: Coordinator or Impossible Job? 82 3 Further Limits of the High Representative as a Coordinator 87 3.1 Unclear Extent of the hr’s Autonomy 87 3.2 Imprecise Scope of the hr’s Activities 88 iv An Administration for Coordination: Enter eeas 91 1 Establishment of the eeas 91 2 Is the eeas Autonomous? 96 3 Does the eeas Perform Coordinating Activities? 99

PART 2 Status of the eeas: A Functionally Autonomous Body Introduction to Part 2: Functional Autonomy, an Elusive Concept 103

Contents

3 Administrative Autonomy of the eeas 105 i eeas’s Ability to Adopt Internal Administrative Decisions 106 1 A Limited Power of Self-Organisation 106 2 Staff Management Capacity 109 3 Ability to Implement Administrative Expenditure 114 4 Capability to Protect Information 117 ii eeas’s Capacity to Act Externally in Administrative Matters 122 1 Legal Personality of the eeas 122 2 Ability to Conclude Binding Administrative Arrangements 127 3 Passive Standing in Judicial Proceedings Concerning Administrative Issues 131 4 Active Standing in Judicial Proceedings Concerning Administrative Issues 135 Conclusion of Chapter 3 139 4 Operational Autonomy of the eeas 141 i On the Different Approaches to Operational Autonomy 142 1 Formalistic Approach to Autonomy 142 1.1 Explicit Conferral of Autonomy 142 1.2 Autonomy as a Corollary of Conferred Powers 145 2 eeas’s Lack of Operational Autonomy from a Formalistic Perspective 147 3 Insufficiency of the Formalistic Approach to Operational Autonomy 149 4 Autonomy of Administrations in Practice 152 5 Introducing the Pragmatic Approach: Operational Autonomy as Freedom from Control 154 5.1 Hierarchical Control 156 5.2 Political Control 156 5.3 Judicial Control 158 ii Extent of the eeas’s Operational Autonomy 158 1 Hierarchical Control over the eeas 159 1.1 (Apparently) Complete Control of the High Representative 159 1.2 Functionally Limited Control of the Commission 163 1.3  Quasi-hierarchical Relationship between the Council and the eeas 169 2 Political Control over the eeas 172 2.1 Limited Influence of the European Council 173

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2.2  National Officials Seconded to the eeas: Trojan Horses of the Member States? 175 2.3 Doubts as to the Accountability of the eeas’s Staff to the Member States 182 2.4 Political Control of the European Parliament: Democratic Accountability? 185 3 Judicial Control of the eeas’s Operational Activities 188 Conclusion of Chapter 4 190

part 3 Activities of the eeas: Coordinating Foreign Affairs 5 Cooperation with Other Authorities 195 i General Considerations on the eeas’s Duty of Cooperation 195 1 Sources of the eeas’s Duty of Cooperation 195 2 Nature of the Duty of Cooperation 196 3 Subjective Scope of the Duty of Cooperation 200 4 Substantive Scope of the Duty of Cooperation 202 5 Content of the Duty of Cooperation 203 ii Consultation between the eeas and Other Authorities 205 1 Duty of Consultation with Commission Services 205 2 Implementation of the Duty of Consultation with Commission Services 209 3 Duty of Consultation with the Member States and eu Bodies, Offices or Agencies 212 iii Exchange of Information 213 1 Exchange of cfsp Information: eeas and Coreu 213 2 Exchange of Information at the Diplomatic Level 216 3 Intelligence Exchange: The eeas’s Intelligence Support Architecture 218 4 Exchange of Information on Disasters and Political Crises: The eu Situation Room 221 iv Support for the Diplomatic and Consular Missions of the Member States 224 1 Support for the Member States in the Conduct of Diplomatic Relations 224 2 Support for the Protection of eu Citizens Abroad 227 Conclusion of Chapter 5 236

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6 Integration with Other Authorities 238 I Integration of the eeas in the Administration of Other Authorities 238 1 Integration in Intergovernmental Organs 238 1.1 Support for the fac Presidency 239 1.2 Chairmanship of Council Preparatory Bodies 244 1.3 Chairmanship of Diplomatic Coordination Meetings 249 2 Integration in the Commission Structure 257 2.1 General Considerations on the eeas’s Integration in the Commission 257 2.2 The Puzzle of International Cooperation 261 2.3 A Puzzle Solved by the Principle of Coherence 267 ii Integration of Other Administrations in the eeas 270 1 Integration of Crisis Response Structures 271 1.1 Fragmentation of the eu’s Crisis Response 271 1.2 Integration of csdp Bodies in the eeas Structure 273 1.3 The Crisis Platform: Integrating ‘Relevant’ Services 275 2 Integration of Diplomatic Structures in eu Delegations 278 2.1 The State-like Diplomatic Relations of the eu 279 2.2 Risk of Incoherence in eu Delegations 288 2.3 The Head of Delegation: A Coherence-maker 291 2.4  Persisting Multiplicity of eu Para-diplomacies: Echo Field Offices and Special Representatives 297 Conclusion of Chapter 6 300 Conclusion 302 Promoting Coherence through Autonomy and Coordination 302 On the eeas’s Effectiveness: All That is Gold Does Not Glitter 305 An Embodiment of Coherence: eeas’s Impact on Constitutional Law 306 The Importance of being a Service 308 Does the eeas Need a Revision? 309 Final Remarks: Integration by Other Means 313 References 317 Index 343

Foreword Institutional innovations have been crucial for the development of the eu’s ‘external action’ as defined in Title v of the Treaty on European Union. The ‘European External Action Service’ (eeas), assisting the newly created ‘High Representative of the Union for Foreign Affairs and Security Policy’, is the most recent of such major novelties. While the external dimension of the Community’s domestic policies had always been considered a natural part of the Commission’s ‘communitarian’ agenda ever since the times of Jean Monnet’s tenure as President of the ecsc’s High Authority some 60 years ago, the first step in codifying ‘intergovernmental’ European Political Cooperation (epc) only happened under the common roof of the Single European Act (sea), signed in Luxembourg 40 years ago. While under the subsequent Maastricht, Amsterdam, and Nice Treaties, epc was further developed into Common Foreign and Security Policy (cfsp), eu Member States were eager to maintain a clear distinction between the Community and the intergovernmental methods, with the Commission, fully associated with cfsp, and the rotating Council Presidencies in charge of ensuring coherence. In spite of its importance as a novel ‘functionally autonomous body of the European Union’, the eeas, constituted from resources of the Commission, the Council, and from the diplomatic services of eu Member States, has not been the object of a comprehensive legal study so far. Mauro Gatti fills this gap in the literature in an exemplary way through a thorough and in-depth study, analysing in detail the legal features of the eeas, and shedding light on its status and activities in the wider framework of eu external relations. He does so on the basis of extensive, original, and solid ­research and documentation. Not only does this book provide for a highly sophisticated theoretical framework, but it also offers insight into the practice, showing how eu external relations function in reality. This book finds its origin in a PhD defended at the University of Bologna and at the University of Strasbourg, and was afterwards updated and further deepened for the preparation of the commercial edition. Three strands of the current debate on eu external relations receive particular attention in Gatti’s work. In the first place, the author examines the eeas’s impact on the institutional balance. Many observers have expressed the fear that the eeas, given its composition, may have a less supranational approach than the Commission. This book partially assuages this concern: although the eeas must certainly take the States’ priorities into account, it is not a proxy of the Member States (or of a particular State).

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Foreword

The concept of coherence is the second focus of the book. External action coherence is an elusive idea, which is more often invoked than understood. It is well known that the eeas should promote coherence, but it is unclear how it should do so, and why it may be capable of attaining its objective. After having provided for a rigorous legal analysis of external action coherence, Gatti shows that the eeas displays the traits of a coordinator, which may be capable of fostering coherence in practice. Interestingly, the relationship between the eeas and coherence is shown to be bidirectional: the application of the legal principle of coherence allows the eeas’s mandate to adapt to circumstances, thereby increasing its coordinating capabilities. The flexibility of the eeas’s mandate is facilitated by its nature as a service. The third focus of the book concerns precisely the administrations of the Union and the activities they conduct. The political and legal debate often takes into account only the institutions as such, and omits to acknowledge the critical role of administrative bodies. The present book, on the contrary, provides for an exhaustive analysis of administrative rules and procedures. It sheds light, in particular, on the pragmatic mechanisms that have been established to enable the eeas to discharge its mandate. It is argued that the eeas, thanks to its status as a service, can more easily build partnerships than political institutions, and may consequently have greater potential for policy coordination. The main message that comes from this work is that the eeas is a tremendously important innovation, which, thanks to its original design, may positively contribute to the affirmation of the Union on the international scene. The author however also shows that the eeas is not a magical device, which may conjure a unified foreign policy on its own. It is worthwhile recalling, moreover, that the affirmation of the Union on the international scene depends also on the human resources available: institutions are crucial for eu external relations, but the quality of people still matters. This goes as much for the staff as it is true for the political leadership. It is probably too early to assess, on the ground, the substantive progress that the eeas has brought about. The eu has attained some successes during the last few years, such as the brokering of a deal with Iran on the nuclear programme, or the normalisation of the relations between Serbia and Kosovo. In any case, this book cautions against drawing hasty conclusions about the eeas’s effectiveness. Future evaluations of the eeas’s performance will find a reliable and sound basis in this monograph, which defines with precision the nature and role of the eeas, thereby making it clear what one may expect of it in the years to come. Some cautious optimism seems warranted: despite its idiosyncrasies (or, rather, because of them), the eeas constitutes a valuable asset. Though it

Foreword

xv

is unlikely to bring about a fully European foreign policy all of a sudden, the eeas constitutes a step in the right direction. Dr Günter Burghardt Former European Commission Political Director, Director General for External Relations and eu Ambassador in the us (Washington)

Acknowledgements This book is based on my PhD thesis, which I defended at the University of Bologna and the University of Strasbourg in May 2013. Several people helped me over the years: Pietro Manzini, who supervised my thesis in Bologna, has commented on this book at length, and has, simply put, taught me how to write legal scholarship; Federico Casolari, who has given me invaluable scientific and practical support, without which this book probably would not exist; Vlad Constantinesco, who supervised my thesis in Strasbourg and has provided me with numerous remarks and precious encouragement; Lucia Serena Rossi, who made penetrating comments on this book and gave me numerous opportunities during my career; Carlo Tovo, who provided observations on my work; and Marise Cremona, who kindly gave suggestions about this project. I am also very grateful to Günter Burghardt for reviewing the manuscript, for providing insightful comments, for taking the time to discuss them and, in particular, for writing the foreword. Moreover, I would like to thank the board of the professors of the eu Law PhD programme at the University of Bologna and the other scholars with whom I have discussed my research, particularly Giacomo di Federico and Lorenzo Gradoni, as well as those with whom I have taught, Marco Borraccetti and Elisa Baroncini. The organisers of the Europe in the World summer school (ecpr), of the Séminaire Doctoral d’été en droit européen (ulb), and of the Incontro tra dottorandi di ricerca in diritto internazionale (sidi) also deserve credit for having given me the opportunity to present and discuss my research. In addition, I am indebted to the people with whom I worked during my traineeship at the European Commission, particularly Marc Tissot-Favre and Antoine Gilbert, and to the practitioners I have interviewed for providing me with insight into the practice. Finally, I would like to thank my family for their unwavering support. Deep thanks go to all my friends, and especially to those with whom I have spent these wonderful years in Bologna. And to Giulia, without whom none of this would matter.

Abbreviations ceos Conditions of Employment of other Servants of the eu cfsp Common Foreign and Security Policy cjeu Court of Justice of the European Union Coreu Correspondance Européenne Cortesy Coreu Terminal System csdp Common Security and Defence Policy dg Directorate-General dg Aidco  European Commission Directorate-General EuropeAid Cooperation Office dg Dev European Commission Directorate-General for Development and Relations with acp States dg Devco European Commission Directorate-General International Cooperation and Development dg Echo European Commission Directorate-General Humanitarian Aid and Civil Protection dg Elarg European Commission Directorate-General for Enlargement dg Near European Commission Directorate-General for Neighbourhood and Enlargement Negotiations dg Relex European Commission Directorate-General for External Relations dg Trade European Commission Directorate-General for Trade ec European Community ecb European Central Bank ecsc European Coal and Steel Community eeas European External Action Service eec European Economic Community eib European Investment Bank ep European Parliament epc European Political Cooperation ercc Emergency Response Coordination Centre eu European Union eums eu Military Staff Euratom European Atomic Energy Community faa Framework Administrative Arrangement fac Foreign Affairs Council fpi Service for Foreign Policy Instruments Frontex  European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union

xviii

Abbreviations

hr High Representative IntCen eu Intelligence and Situation Centre isc Inter-Service Consultation isg Inter-Service Group jha Justice and Home Affairs mic Monitoring and Information Centre Olaf European Anti-Fraud Office (Office Européen de Lutte Antifraude) pnr Passenger Name Record sea Single European Act SitCen Joint Situation Centre sla Service-Level Arrangement tec Treaty Establishing the European Community teu Treaty on European Union tfeu Treaty on the Functioning of the European Union ucpm Union Civil Protection Mechanism vp Vice-President

Introduction The European External Action Service (eeas or Service) has not yet been examined with all the care it deserves. The eeas is one of the most significant innovations introduced by the Lisbon Treaty and constitutes the first case of a non-national ‘foreign ministry’. Yet the role, mandate, and position of the Service within the institutional architecture of the Union remain unclear to practitioners and scholars alike.1 The main cause of these uncertainties may lie with a gap in the legal analysis. The law arguably constitutes an essential basis for the study of international organisations and their organs.2 Existing legal studies focus on specific aspects of the Service, such as the process of its establishment, its founding decision, its qualification as a sui generis body, or its role in certain policy fields.3 There would seem to be no work, at present, that systematically addresses the eeas from a legal perspective. This gap in the literature may perhaps be explained by the eeas’s ­seemingly ‘bureaucratic’ status, evidenced by its name: External Action Service. Jurists have seldom studied the bureaucracies of international organisations,4

1 Cf. Jan Wouters and others, The Organisation and Functioning of the European External Action Service: Achievements, Challenges and Opportunities (European Parliament 2013), at 10; Erwan Lannon, ‘Libres propos sur l’evolution du système et des équilibres institutionnels de l’Union Européenne dans une Europe en crise’ in Frédérique Berrod and others (eds), Europe(s), droit(s) européen(s): Une passion d’universitaire – Liber amicorum en l’honneur du professeur Vlad Constantinesco (Bruylant 2015), at 344. 2 Riccardo Monaco, Les principes régissant la structure et le fonctionnement des organisations internationales (Collected Courses of the Hague Academy of International Law 1977), at 91. 3 See e.g. Leendert Erkelens and Steven Blockmans, ‘Setting up the European External Action Service: An Act of Institutional Balance’ (2012) 8 European Constitutional Law Review 246; Steven Blockmans and others, 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); Bart Van Vooren, ‘A Legal-Institutional Perspective on the European External Action Service’ (2011) 48 Common Market Law Review 475; Luis N González Alonso, ‘Le Service ­Européen pour l’Action Extérieure à l’heure de son épreuve: une contribution renforcée de l’ue au maintien de la paix ?’ (2014) Paix et sécurité internationales 11. 4 See Sabino Cassese, Le basi del diritto amministrativo (Utet 2000), at 405. Among the exceptions one may cite Chris De Cooker (ed), International Administration: Law and Management Practices in International Organisations (Martinus Nijhoff 1990); Ignaz Seidl-Hohenveldern, ‘Les organes administratifs’ in René J Dupuy (ed), Manuel sur les organisations internationales | A Handbook on International Organizations (Collected Courses of the Hague Academy of International Law 1988).

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004323612_002

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Introduction

­including those of the Union,5 probably because they were originally meant to have secondary relevance6 – though they subsequently came to play a central role in virtually everything that eu institutions do.7 Another factor that may contribute to explain the limited attention to the eeas stems from its diplomatic nature. As an ambassador said in 1907, ‘les fonctionnaires diplomatiques valent plutôt par leurs capacités que par la manière dont ils sont groupés’.8 Perhaps that was true at the time, but it is quite clear, by now, that ‘institutions matter’ in eu foreign affairs.9 Therefore, a legal analysis of the eeas is not only possible but also opportune. The present book investigates the legal aspects of the Service, contributing to fill the gap in the literature concerning this unique body (for ease of exposition, I henceforth use the words ‘body’ and ‘organ’ to indicate any authority that composes the eu, including institutions and services). Notwithstanding the opacity that surrounds the eeas, its function is clear – and this is the starting point of the present analysis. The Service should assist the High Representative of the Union for Foreign Affairs and Security Policy (High Representative or hr) in promoting overall ‘coherence’ in the external action. The coherence among the multitude of eu foreign policies, in fact, has been the ‘Holy Grail’ of the Union for at least three decades: allegedly crucial but seemingly irretrievable. The eeas is expected to solve this problem by providing, in the words of the European Council, ‘the coordination necessary to 5 Existing legal analyses focus mostly on specific structures, administrative procedures and on the eu’s relationship with national administrations, see, e.g., JFH Inghelram, Legal and Institutional Aspects of the European Anti-Fraud Office (olaf): An Analysis with a Look Forward to a European Public Prosecutor’s Office (Europa Law 2011); Carol Harlow and Richard Rawlings, Process and Procedure in eu Administration (Hart 2014); Herwig CH Hofmann and Alexander Türk (eds), Legal Challenges in eu Administrative Law: Towards an Integrated Administration (Edward Elgar 2009); Oswald Jansen and Bettina Schondorf-Haubold (eds), The European Composite Administration (Intersentia 2011). 6 Anchrit Wille, The Normalization of the European Commission: Politics and Bureaucracy in the eu Executive (Oxford University Press 2013), at 41. 7 See Chapter 4.i.4. 8 G. Tornielli, Italian ambassador to France (1895–1908), cit. in Emmanuel Decaux, ‘La réforme du ministère français des affaires étrangères’ (1979) 25 Annuaire français de droit international 792, at 792. 9 Poul S Christoffersen, ‘The Creation of the European External Action Service’, A Man for All Treaties: Liber amicorum en l’honneur de Jean-Claude Piris (Bruylant 2011), at 97; Geert De Baere, ‘European Integration and the Rule of Law in Foreign Policy’ in Julie Dickson and Pavlos Eleftheriadis (eds), Philosophical Foundations of European Union Law (Oxford University Press 2012), at 364.

Introduction

3

ensure the coherence of the European Union’s external action as a whole’.10 Given its peculiar mission, the Service is likely to have singular characteristics: if form follows function,11 the eeas’s design should reflect its role. The form of the Service is ‘extremely important if the Union’s external relations are to be rendered more coherent’,12 as noted by the European Parliament (ep). According to High Representative Catherine Ashton, the eeas is indeed ‘uniquely well placed in the eu institutional framework to promote the strategic d­ irection of the eu’s external action’.13 Yet one may wonder whether this is actually the case. Is the eeas’s legal design conducive to external action coherence? The ­present analysis primarily intends to answer this question to verify whether and to what extent the Service may be expected to promote a more effective external action in practice. Since the eeas is expected to succeed where other eu bodies failed in the past (i.e., in promoting coherence), it is likely to have special legal features that the legislature probably devised in light of the Service’s purpose. Hence, the investigation also addresses a second question, which is subsidiary to the first: did the concern for coherence influence the eeas’s form? By answering these questions, this book contributes to the debate on eu institutional law and external relations law. It clarifies the function, status, and activities of the eeas, its position in the eu’s institutional architecture, and its relationship with the archetypal methods of European integration. Moreover, it provides for a systematic analysis of the principle of external action coherence in eu law and of the means that may be used to implement it, notably the coordination of decision-making bodies. Methodologically, the research is grounded on legal doctrine – consisting, as is well known, in a description of the literal sense of statutes and precedents.14 Such an investigation is feasible, as legal considerations played a determining 10

11 12

13 14

euco 21/1/10 rev 1, Annex I para f, (emphasis added). See also Joint progress report by the Secretary-General/High Representative and the Commission on the European External Action Service, annexed to Council doc. 9956/05, 9 June 2005. The expression is borrowed from Louis H Sullivan, ‘The Tall Office Building Artistically Considered’ (1896) 57 Lippincott’s Magazine 403. European Parliament, Resolution on the institutional aspects of setting up the European External Action Service, 22 October 2009 – Strasbourg, P7_TA(2009)0057, preamble, para A. High Representative, eeas Review (2013) , at 9. Aleksander Peczenik, Scientia Juris: Legal Doctrine as Knowledge of Law and as a Source of Law (Springer 2005), at 1; See also Olivier Corten, Méthodologie du droit international public (Editions de l’Université de Bruxelles 2009), at 105.

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Introduction

role in the setup of the eeas, and the Service itself has had an impact on eu constitutional law.15 The analysis admittedly encounters difficulties because the eeas is at the crossroads between two peculiar fields of law: on the one hand, external relations law, which mixes legal orthodoxy and diplomatic realism16 and, on the other hand, institutional law, a body of law in which little is truly and really fixed, immutable,17 but is actually capable of organic growth.18 To address these difficulties, the current study takes into account both the ‘law in the books’ and the ‘law in practice’, acknowledging the developments that have affected the eeas over time. The study reflects the practice until 31 ­December 2015. The investigation is based not only on hard law sources and on the case-law but also on interviews of the staff of Union bodies and of the Member States, and on internal documents of eu organs (the documents that are not published in open sources were obtained from eu bodies’ services for access to documents). In terms of secondary sources, the study takes into account, besides legal writings, the findings of scholars from other disciplines to assess the context in which legal rules apply.19 This investigation, nonetheless, is limited to the legal aspects underpinning the eeas’ mandate and activities. The purpose of this work is therefore not to verify empirically whether the eeas has ensured coherence or to provide detailed insights into the Service’s practices and their impact. While the latter are certainly important questions and form part of an interesting field of research, the purpose of this book is, in contrast, to clarify the legal context in which the eeas operates, as one may hardly judge the performance of the Service without knowing what it is, what it can do, and how it can do it. Some considerations on the effectiveness of the eeas, on its measurement and on its structural limits, are provided in the conclusion. Since this book revolves around the relationship between the eeas and external action coherence, the analysis must begin with a conceptual 15

16

17 18 19

Geert De Baere and Ramses A Wessel, ‘eu Law and the eeas: Of Complex Competences and Constitutional Consequences’ in David Spence and Jozef Bátora (eds), The European External Action Service: European Diplomacy Post-Westphalia (Palgrave Macmillan 2015). Stanislas Adam, ‘The Legal Basis of International Agreements of the European Union in the Post-Lisbon Era’ in Inge Govaere and others (eds), The European Union in the World: Essays in Honour of Marc Maresceau (Martinus Nijhoff 2014), at 65; De Baere (n 9 p 2), at 359–360. Jan Klabbers, ‘The Paradox of International Institutional Law’ (2008) 5 International ­Organizations Law Review 1, at 12. Thomas M Franck, ‘Review: The Law of International Institutions by D.W. Bowett’ (1964) 77 Harvard Law Review 1565, at 1565. Cf. Santi Romano, Principii di diritto costituzionale generale (Giuffrè 1943), at 23.

Introduction

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c­ larification. Numerous scholars have studied external action coherence in the past, but this concept remains nebulous. Therefore, the first part of the book provides a preliminary assessment of external action coherence and of the means to implement it. Chapter 1 discusses the notion of coherence and its legal effects, demonstrating that eu primary law contains a legal requirement of coherence (not mere consistency), i.e., synergy between different external actions. Chapter 2 suggests that, to promote coherence in eu foreign affairs, the Union must attain the ‘coordination’ of decision-makers. It is submitted that such coordination may be effectively implemented by an authority that is autonomous from the main decision-makers and is capable of participating in their activities by cooperating and integrating with them. The political institutions and offices of the Union are not well suited for this role, driving the need for an administrative solution, i.e., the European External Action Service. The remainder of the book seeks to demonstrate that the eeas possesses the characteristics that are required to coordinate eu foreign affairs. The second part discusses the eeas’s autonomy. In Chapter 3, the analysis concentrates on ‘administrative’ issues, showing that the eeas may independently adopt decisions regarding its internal management and may interact with other subjects for this purpose. Chapter 4 addresses the ‘operational’ dimension of autonomy and suggests that the eeas, despite its status as a ‘service’, is not entirely subject to the control of the authorities it ‘serves’. In other words, it enjoys the independence that is necessary to formulate its own policy and to be perceived as a trustworthy coordinator by the main decision-makers of eu foreign affairs. The third part of the book investigates the eeas’s activities, focussing on their potential for coordination. Chapter 5 focuses on the eeas’s cooperation with other bodies and explores the Service’s capability to coordinate the decisionmaking process through consultation and exchange of information with other organs, as well as with support for other authorities. Chapter 6 analyses the eeas’s integration with other authorities. It is contended that the legislature adopted a peculiar interpretation of conferred powers, informed by the principle of coherence, that permits the eeas to function as if it were part of other bodies, thereby acquiring the capability to influence their policies. The legislature also enabled the eeas to integrate other administrations in its own structure, thereby exerting authority over the staff of eu institutions and directing their operations. The conclusion summarises the findings of the study, providing answers to the research questions and exploring their consequences in terms of the development of eu external relations and constitutional law and of the study thereof.

Part 1 The Conundrum of External Action Coherence: Is the eeas a Solution?

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Introduction to Part 1: Coherence and Consistency, Enigmatic Leitmotifs of the External Action It is not difficult to identify instances of incoherence in the practice of eu ­foreign affairs. For example, eu Members have responded incoherently to all recent greater Middle-East crises. The uk, Italy, and Spain supported the United States (us) aggression against Iraq (2003), while Germany and France opposed it. The uk and France bombed Libya (2011) and the self-styled Islamic State in Syria and Iraq (2015), while most eu Members were wary about military intervention. eu countries are not cohesive vis-à-vis Russia either: they have different strategies in respect of energy independence, and they undermine each other. An example in this sense comes from the project ‘Nord Stream’: this gas duct between Baltic Russia and northern Germany, inaugurated in 2011, facilitates the access to Russian gas on the part of some eu countries (notably Germany), but isolates the easternmost Members of the eu. Russia may indeed ‘turn off the tap’ to them without risking exports to other States.1 The response to the Russian actions against Ukraine in 2014 further elucidates the ambiguities of eu Members’ policies. A diversity of voices and reactions has indeed emerged among eu countries. While some States (e.g. Estonia, Lithuania, and Poland) adopted principled positions, promptly condemning the violence against civilians and emphasizing the implications of the Russian aggression against Ukraine, initial responses from other countries were more subdued.2 The policies affected by incoherence are not only those of the Member States, but also those of the Union. The relationship between eu development cooperation and agricultural policy is a case in point. The eu has been giving financial support to developing countries for decades, in order to help them integrate into the world economy. At the same time, the eu has encouraged agricultural production in Europe, thus hurting those developing countries that 1 Robert L Larsson, Nord Stream, Sweden and Baltic Sea Security (foi – Swedish Defence ­Research Agency 2007), at 40. See also Georgi Gotev, ‘Slovak pm Calls Nord Stream Expansion Deal “a Betrayal”’ EurActiv (11 September 2015) accessed 12 October 2015; Rosa Balfour, Alison Bayles and Megan Kenna, The European External Action Service at Work: How to Improve eu Foreign Policy (European Policy Centre 2012), at 34–35. 2 Joerg Forbrig, ‘Introduction: A Region Disunited?’ in Joerg Forbrig (ed), A Region Disunited? Central European Responses to the Russia-Ukraine Crisis (The German Marshall Fund of the United States 2015), at 3.

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are net food exporters.3 The European policy towards Israel and Palestine is another case of incoherence. The Union has a well-established position, whereby it seeks to foster a comprehensive negotiated peace on the basis of a two-state solution.4 The eu sometimes puts this position into practice; for instance, it does not consider the goods originating from occupied territories as Israeli goods (which may benefit from preferential treatment).5 However, European decision-makers sometimes act less coherently.6 Despite the ­colonisation of 3 Ole Boysen, Hans Grinsted Jensen and Alan Matthews, ‘Impact of eu Agricultural Policy on Developing Countries: A Uganda Case Study’ (2015) The Journal of International Trade & ­Economic Development 1, at 2. In addition, one may mention the alleged contradiction ­between the eu’s food security policy and the support for biofuels, see Elisa Ambrosini, ‘­Cooperazione allo sviluppo e lotta alla fame: ruolo dell’UE e responsabilità degli Stati membri’ in Marco Gestri (ed), Cibo e diritto. Dalla Dichiarazione universale alla Carta di Milano (Mucchi 2015). Similar considerations are applicable, mutatis mutandis, to the eu’s trade policy, see Alasdair R Young and John Peterson, ‘“We Care about You, but …”: The Politics of eu Trade Policy and Development’ (2013) 26 Cambridge Review of International Affairs 497. 4 See Declaration by the High Representative on behalf of the European Union on the Middle East Peace Process, Brussels, 29 November 2012; most recently, see Council conclusions on the Middle East Peace Process, 17 November 2014, accessed 18 November 2015. See further Marc Maresceau, ‘The Brita Ruling of the European Court of Justice: A Few Comments’ in Inge Govaere, Reinhard Quick and Marco Bronckers (eds), Trade and Competition Law in the eu and Beyond (Edward Elgar 2011), at 284. 5 Whereas the EC-Israel Association Agreement provides for preferential treatment for Israeli products imported in the eu, the Union takes the view that products obtained in locations which have been placed under Israeli administration, since 1967 do not qualify for the preferential treatment provided for under that agreement, see Firma Brita Gmbh v Hauptzollamt Hamburg-Hafen, C-386/08, eu:c:2010:91, para 64. It is true that, in this judgement, ‘the Court found a way to ensure that international law structured its decision, rather than a more unilateral ‘European’ view’, see Paul James Cardwell, ‘Adjudicating on the Origin of Products from Israel and the West Bank: Brita GmbH v. Hauptzollant Hamburg-Hafen’ (2011) 17 ­European Public Law, at 48. Yet, one may safely hypothesise that such a ‘unilateral’ view influenced the Court’s interpretation of the law. In addition to excluding the goods originating from occupied territories from preferential treatment, the Commission has also requested that the products coming from the colonies be labelled as products from ‘Israeli settlements’, see European Commission, Interpretative Notice on indication of origin of goods from the territories occupied by Israel since June 1967, C(2015) 7834 final, para 10. 6 Interestingly, other international subjects are more coherent than the eu. The us, for ­instance, supports Israel more closely at the political level and, consequently, adopts a more friendly trade position, to the extent that it applies preferential treatment to goods produced under Israel occupation, see Eugene Kontorovich, ‘Economic Dealings with Occupied ­Territories’ (2015) 53 Columbia Journal of Transnational Law 584, at 598.

Coherence and Consistency

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Palestinian territories, which patently contradicts the two-State solution preferred by the Union, the eu has never suspended its Association Agreement with Israel.7 Moreover, while the eu often makes use of economic sanctions (so-called restrictive measures) against States that commit ample-scale violations of international law, it has never done so in respect of Israel.8 The example of the policy towards Israel also shows that incoherence at the eu level is often coupled with, and magnified by, incoherence between the Member States. In 2011, some eu Members voted in favour of Palestine’s accession to unesco, whereas others opposed it, and a third group abstained. The following year, when the un General Assembly granted the status of non-member observer State to Palestine, cohesion was greater, but not complete: one eu Member opposed the demand of Palestine, while a number abstained.9 The Treaties acknowledge the need for increased cohesiveness in eu ­foreign affairs, by repeatedly calling for ‘consistency’, notably at Articles 21(3) teu and 7 of the Treaty on the Functioning of the European Union (tfeu).10 Yet, one may wonder what this ‘consistency’ should be, and whether it is related to a broader concept of ‘coherence’. Consistency and coherence are elusive and subjective words,11 which pretend to bring into existence what they enounce.12 7

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The European Parliament, among others, has called for the suspension of the EU-Israel Association Agreement in reaction to Israel’s activities in the Occupied Territories. See Lorand Bartels, The Application of Human Rights Conditionality in the eu’s Bilateral Trade Agreements and Other Trade Arrangements with Third Countries (European Parliament 2008) accessed 19 December 2015, at 11. For instance, one might have possibly envisaged some reaction to the construction of a wall in the occupied Palestinian territory; cf. the judgement of the International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian T ­ erritory, Advisory Opinion, icj Reports 2004, p. 136. See Max Fisher, ‘Map: How Europe Voted on Palestine at the u.n., in 2011 and Now’ The Washington Post (29 November 2012) accessed 18 November 2015. Further on the coherence-related innovations contained in the Lisbon Treaty, see Lucia S Rossi, ‘Coerenza ed efficacia dell’azione esterna dell’Unione europea: le innovazioni previste dal Trattato di Lisbona’ in Giuliana Laschi and Mario Telò (eds), L’Europa nel sistema internazionale: Sfide, ostacoli e dilemmi nello sviluppo di una potenza civile (Il Mulino 2009). Cf. Bart Van Vooren, eu External Relations Law and the European Neighbourhood Policy: A Paradigm for Coherence (Routledge 2012), at 5. Cf. Denys Simon, ‘Rapport introductif: cohérence et ordre juridique communautaire’ in Valérie Michel (ed), Le droit, les institutions et les politiques de l’Union Européenne face à l’impératif de cohérence (Presses Universitaires de Strasbourg 2009), at 25.

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INTRODUCTION TO PART 1

Although these words are often used as synonyms, they may have different meanings. While consistency is normally understood as the ability to be asserted together without contradiction,13 coherence might be defined as the quality of holding together,14 or the harmonious connection of, the several parts of a system.15 For the sake of simplicity, I hereinafter use the French word ‘cohérence’, which may mean both ‘consistency’ and ‘coherence’, to generically refer to both concepts. The first part of this book seeks to clarify what the eu Treaties request when they ask for ‘consistency’ in external relations, and how this ‘consistency’ may be implemented in practice. The first chapter elucidates the notion and legal effects of the principle of coherence. The second chapter then discusses the methods for implementing external action coherence, focussing on the most promising one, i.e. coordination. As shown in the subsequent chapters, this method is embodied by the eeas, which was created precisely for promoting coherence in eu foreign affairs.

13 14 15

For instance, see ‘Consistency’ in the Merriam-Webster Dictionary, accessed 18 December 2015. See ‘coherent’ in the Merriam-Webster Dictionary accessed 18 December 2015. Simon Duke, ‘Consistency, Coherence and European Union External Action: The Path to Lisbon and Beyond’ in Panos Koutrakos (ed), European Foreign Policy: Legal and Political Perspectives (Edward Elgar 2011), at 18.

chapter 1

The Principle of External Action Coherence In order to define external action cohérence, one may be tempted to link it to a well-known form of consistency: the systemic consistency of legal orders. After having briefly defined the latter concept (Section  i), the investigation elucidates the commonalities and, above all, the differences between systemic consistency and external action cohérence, clarifying the content of the latter (Section ii), and defining its legal effects (Section iii). i

The Systemic Consistency/Coherence of Legal Orders

The cohérence of legal orders is a controversial topic, which has been debated by legal theorists for decades. The negative aspect of this concept (­consistency) is quite well understood, at least in principle, though its application in the eu’s legal order may raise some issues (1). On the other hand, the positive aspect of systemic cohérence (coherence) is not clearly defined, and is unlikely to serve as a useful term of reference for the study of cohérence in the external action (2). 1 The Systemic Consistency of the eu’s Legal Order Whenever a person is bound by two or more rules, the problem of their coexistence comes to the fore, since they may be contradictory. The coexistence of contradictory rules renders the law unpredictable, and ultimately undermines the rule of law.1 The concept of ‘legal order’, theorised in the 19th century, contributed to solve this problem. The legal order consists of a system, comprising all the legal elements that regulate the existence and functioning of a human community, which forms a whole that is logically cohesive.2 A legal order should be consistent, i.e., without antinomies, to be i­ ntelligible and predictable.3 The absence of logical contradictions (‘antinomies’) b­ etween 1 Cf. Eric Maulin, ‘Cohérence et ordre juridique’ in Valérie Michel (ed), Le droit, les institutions et les politiques de l’Union Européenne face à l’impératif de cohérence (Presses Universitaires de Strasbourg 2009), at 11. 2 See Charles Leben, ‘De quelques doctrines de l’ordre juridique’ (2001) 33 Droits 19; Riccardo Guastini, La sintassi del diritto (Giappichelli 2014), at 224. 3 See, inter alia, Stephen Guest, Ronald Dworkin (Stanford University Press 2013), at 80; Aldo Schiavello, ‘On “Coherence” and “Law”: An Analysis of Different Models’ (2001) 14 Ratio Juris

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statements of law in a legal order is generally termed as ‘consistency’. Such non-contradiction cannot be taken for granted, since legislatures often enact conflicting statements of law. The interpreter may try to reconstruct non-­ contradictory rules through interpretation;4 failing that, the contradiction must be solved by applying rules on the conflict of norms.5 The consistency of the Union’s legal order may seem to raise specific issues, since the eu’s law-making power is particularly fragmented. While national parliaments usually have general competence, and may adopt laws on any matter, eu organs must follow different procedures, adopt different acts, and pursue different objectives in each policy area. This plurality generates a ‘series of autonomous normative sub-systems’,6 which may seem to jeopardise the consistency of the eu’s legal order. However, this problem should not be overstated: the contradictions between acts relating to different policy areas may be solved by applying the usual criteria on the conflict of norms (notably, the criterion of competence). It is true that the application of these criteria may raise some difficulties in practice, and that, as a consequence, the allocation of competences and powers is blurred in the eu. However, this issue does not seem to question the systemic consistency of the eu’s legal order as such (i.e. the absence of contradictions between statements of law), though it ­certainly affects policy coherence, as discussed in the next section.7 Systemic consistency becomes particularly problematic when different legal orders interact with each other. The theory of legal orders was originally

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233, at 236; Alessandra Mignolli, L’azione esterna dell’ue e il principio della coerenza (Jovene 2009), at 10. On the need for ‘cohérence’ in legal orders see also Georges Abi-Saab, Cours ­général de droit international public (Collected Courses of the Hague Academy of International Law 1987), at 109 and 114; Pierre-Marie Dupuis, L’unité de l’ordre juridique international : cours général de droit international public (2000) (Collected Courses of the Hague Academy of International Law 2002), at 61. As has been noted by the International Law Commission, ‘it is a generally accepted principle that when several norms bear on a single issue they should, to the extent possible, be interpreted so as to give rise to a single set of compatible obligations’. See Conclusions of the Study Group on the Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Yearbook of the International Law ­Commission, 2006, vol. ii, Part Two. The consistency of international law, for instance, is ensured (also) via the norms on treaty conflict, see inter alia Benedetto Conforti, ‘Consistency among Treaty Obligations’ in Enzo Cannizzaro (ed), The Law of Treaties Beyond the Vienna Convention (Oxford University Press 2011). Enzo Cannizzaro, Il diritto dell’integrazione europea: l’ordinamento dell’Unione (Giappichelli 2014), at 144 (translation by the author). On the relationship between systemic consistency and policy coherence, see Chapter 1.ii.4.

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conceived in the context of 19th century States, which were autonomous in the sense that they had the exclusive power to define their own rules.8 The perfect unification of the legal order was nonetheless an illusion, which was dispelled when the States’ exclusive control over human communities weakened.9 Many issues are no longer regulated by a single State, but through ­international agreements, which may produce legal effects within domestic legal orders, even if they are produced by subjects that are external to, and autonomous from, the legal order itself.10 This problem is particularly evident in the case of the European Union, whose system contemporarily interacts (downwards) with the legal orders of its Members and interfaces (upwards) with the international legal order. Starting with the first problem, one may note that, although the Member States have transferred powers to the Union, there is the risk that they may accord precedence to domestic measures over eu provisions, thereby jeopardising the consistency of the eu’s system. The Court of Justice of the European Union (cjeu) ruled out this possibility in Costa v Enel, by arguing that the eu’s legal order is ‘an integral part of the legal systems of the Member States’, which provides for norms on the conflict of rules – notably, the principle of primacy.11 The legal order of the eu also contains a mechanism for cooperation between the Court of Justice and national courts (the preliminary ruling procedure), which permits the cjeu to ensure the application of primacy, and, thus, the unity of the eu’s order.12 8 9 10

11 12

René Barents, The Autonomy of Community Law (Kluwer Law International 2004), at 173–174. Cf. Santi Romano, L’ordinamento giuridico (Sansoni 1946), at 78. It is true that, from a formal perspective, States enter into international agreements by their own volition. One may argue, however, that international cooperation is often a ­necessity, more than a deliberate (and ‘autonomous’) choice of States. Costa v Enel, Case 6/64, eu:c:1964:66; see also Opinion 1/09, eu:c:2011:123, para 65; ­Opinion 2/13, eu:c:2014:2454, para 157. Id., para 186. See also Jan Komárek, ‘Federal Elements in the Community Judicial System: Building Coherence in the Community Legal Order’ (2005) 42 Common Market Law Review 9; Ilaria Anrò, L’Adesione dell’Unione Europea alla cedu: l’evoluzione dei sistemi di tutela dei diritti fondamentali in Europa (Giuffrè 2015), at ­282–290. In p ­ rinciple, nation­al legal orders may be inconsistent with that of the Union, notwithstanding the principle of primacy and the preliminary ruling procedure, because of the ­application of the doctrine of counter-limits, and, perhaps, because of the effects of the ‘national identity’ clause (article 4(2) teu). See further Theodore Konstadinides, ‘Constitutional Identity as a Shield and as a Sword: The European Legal Order Within the Framework of National Constitutional Settlement’ (2011) 13 Cambridge Yearbook of European Legal Studies 195; Giacomo Di Federico, ‘Identifying National Identities in the Case Law of the Court of

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The relationship between the eu’s legal order and the international system is more complicated. The Union’s action on the international scene is guided by the principles which have inspired its own creation, including the respect of international law (Article 21(1) teu). Hence, the eu must respect international rules,13 including customary law,14 and the international agreements concluded by the Union.15 In general, international rules binding the European Union prevail over internal acts.16 However, according to the cjeu, one cannot ­assume that once the eu is bound by a rule of international law, its Courts must bow to that rule with complete acquiescence and apply it unconditionally in the eu’s legal order.17 The Court has held, in particular, that the institutions which have power to negotiate an international agreement are free to agree with the counterparty what effects the provisions of the agreement are to have in the internal legal order of the contracting parties.18 If that question has not been expressly dealt with in the agreement, it is for the cjeu to decide it.19 According to the caselaw, the provisions of an international agreement can be relied on in support Justice of the European Union’ (2014) Il diritto dell’Unione europea 769. It is not necessary to overemphasise this issue, at any rate, given the relatively exceptional character of this kind of contradictions between national and eu law – which stands in contrast with the frequency of inconsistencies between eu law and the international legal order (see infra). 13 See e.g. Anklagemyndigheden v Poulsen and Diva Navigation, C-286/90, eu:c:1992:453, para 9. 14 Racke v Hauptzollamt Mainz, C-162/96, eu:c:1998:293. 15 Article 216(2) tfeu. 16 See Commission v Germany, C-61/94, eu:c:1996:313, para 52; Algemene Scheeps Agentuur Dordrecht v Inspecteur der Belastingdienst, C-311/04, eu:c:2006:23, para 25; Intertanko and Others, C-308/06, eu:c:2008:312, para 42; Kadi and Al Barakaat International Foundation v Council and Commission, C-402/05 P and C-415/05 P, eu:c:2008:461, para 307. 17 Opinion of AG Poiares Maduro, Kadi and Al Barakaat v Council and Commission, C-415/05 P, eu:c:2008:11, para 24. In fact, despite being created through an international agreement, all international organisations maintain a more or less pronounced degree of autonomy from the international legal order, which allows them to define the legal effects of international rules in their legal order, cf. Federico Casolari, L’incorporazione del diritto internazionale nell’ordinamento dell’Unione Europea (Giuffrè 2008), at 27; Mario Mendez, The Legal Effects of eu Agreements: Maximalist Treaty Enforcement and Juridical Avoidance Techniques (Oxford University Press 2013), at 290. 18 Hauptzollamt Mainz v C.A. Kupferberg, Case 104/81, eu:c:1982:362, para 17; Portugal v Council, C-149/96, eu:c:1999:574, para 34. 19 See fiamm and Others v Council and Commission, C-120/06 P and C-121/06 P, eu:c:2008:476, para 108 and the case-law cited.

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of an action for annulment of an act of secondary eu legislation, only where the nature and the broad logic of that agreement do not preclude it, and if those provisions appear – with regards to their content – to be unconditional and sufficiently precise.20 Hence, certain international instruments (notably, certain association agreements)21 can prevail on internal legislation, while the provisions contained in others – such as the World Trade Organisation agreements22 and the Kyoto Protocol23 – normally cannot.24 Therefore, inconsistencies between the international legal order (where the Union is legally bound) and the internal legal order (where eu institutions can adopt acts that contradict international commitments) are possible. Since eu primary law requires the Union to respect international agreements, a contradiction between a piece of eu law and international law implies a contradiction between that piece of law and eu primary law. The discrepancy between internal and international rules thus generates a contradiction within the legal order of the Union as such: the eu, which is constitutionally bound to respect international law, ‘lawfully’ violates it.

20 See inter alia Intertanko and Others, C-308/06, eu:c:2008:312, para 45; fiamm and Others v Council and Commission, eu:c:2008:476, paras 110 and 120; and Air Transport Association of America and Others v Secretary of State for Energy and Climate Change, C-366/10, eu:c:2011:864, para 54. See further Casolari, L’incorporazione del diritto internazionale (n 17 p 16), at 331–335; Luigi Sbolci, ‘L’invalidità degli atti dell’Unione europea per violazione del diritto internazionale’ (2012) 95 Rivista di diritto internazionale 988, at 1004–1005. 21 Bresciani v Amministrazione Italiana delle Finanze, Case 87/75, eu:c:1976:18, para 25; Pabst v Hauptzollamt Oldenburg, Case 17/81, eu:c:1982:129, para 27. 22 Portugal v Council, C-149/96, eu:c:1999:574. Cf. Fediol v Commission, eu:c:1989:254, ­paras 19–23; Nakajima v Council, eu:c:1991:186, paras 29–32; Council and others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, C-401/12 P to C-403/12 P, eu:c:2015:4. See also Marc Maresceau, Bilateral Agreements Concluded by the European Community (Collected Courses of the Hague Academy of International Law 2004), at 249– 262; Szilárd Gáspár-Szilágyi, ‘The Relationship between eu Law and International Agreements: Restricting the Application of the Fediol and Nakajima Exceptions in Vereniging Milieudefensie’ (2015) 52 Common Market Law Review 1059. 23 Air Transport Association of America and Others v Secretary of State for Energy and Climate Change, C-366/10, eu:c:2011:864, paras 73–78. 24 Even in these cases, at any rate, the agreement may have an ‘indirect effect’, by way of ‘consistent interpretation’, see Federico Casolari, ‘Giving Indirect Effect to International Law within the eu Legal Order: The Doctrine of Consistent Interpretation’ in Enzo Cannizzaro, Paolo Palchetti and Ramses A Wessel (eds), International Law as Law of the European Union, Studies in eu External Relations (Martinus Nijhoff 2012); Casolari, L’incorporazione del diritto internazionale (n 17 p 16), at 336–338.

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In addition, there may be inconsistencies between eu law and the (pre-­ existing) international commitments of eu Members (which are problematic for the Union as such, given the integration between the systems of the eu and of its Members). Article 351 tfeu takes this problem into account, by stipulating that the Union should not impede the performance of the obligations of Member States which stem from an agreement prior to the entry into force of the eec Treaty (or, for accessing States, before the date of their accession).25 In other words, the eu should ensure that its Members may comply with their international obligations.26 The practical consequence is that international norms binding eu Members should have primacy over acts of secondary eu law.27 However, that primacy does not extend to primary law, in particular to the general principles.28 Therefore, once again, there may be inconsistencies between eu and international law and, as a consequence, within the eu’s legal order itself.29 Is the concept of cohérence in eu external relations related to these inconsistencies and, more generally, to the legal contradictions in the eu’s system? This question is addressed in the next section. Before addressing this issue, at any rate, it is worth wondering whether the ‘positive’ dimension of the cohérence of legal orders – systemic coherence – may also be a reference for an analysis of the cohérence of the eu’s external action. 25 Cf. The Queen v Secretary of State for Home Department, ex parte Evans Medical and M ­ acfarlan Smith, C-324/93, eu:c:1995:84, para 27; Commission v Italy, Case 10/61, eu:c:1962:2; Ministère public and Direction du travail v Levy, eu:c:1993:332. See further Pietro Manzini, ‘The Priority of Pre-Existing Treaties of ec Member States within the Framework of International Law’ (2001) 12 European Journal of International Law 781. 26 Cf. Yusuf and Al Barakaat v Council and Commission, T-306/01, eu:t:2005:331, paras 178 and 239; see also AG Jacobs in Bosphorus v Minister for Transport, Energy and Communications, C-84/95, eu:c:1996:179, para 2. 27 Kadi and Al Barakaat International Foundation v Council and Commission, C-402/05 P and C-415/05 P, eu:c:2008:461, para 42 and case-law cited. 28 Ibid., paras 308 and 316. See also Commission and Others v Kadi, C-584/10, eu:c:2013:518, paras 65–68. Of course, the Kadi case-law may be read in different ways. The latest ­judgement, in particular, may be interpreted, not only as an attempt at protecting the autonomy of the eu’s order, but also as a solution to protect democracy and fundamental rights from the deficiencies of the eu’s legal system itself, see Lorenzo Gradoni, ‘Raccontare “Kadi” dopo “Kadi ii”: perché la Corte di giustizia dell’Unione europea non transige sul rispetto dei diritti umani nella lotta al terrorismo’ (2013) 7 Diritti umani e diritto internazionale 587, at 601–602. 29 This problem is partially solved by the second paragraph of Article 351 tfeu, which ­requires eu Members to take steps to solve the inconsistency between their commitments and eu law; the case-law on this topic is discussed below, see Chapter 1.iii.2.

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2 Is There a Principle of Systemic Coherence of Legal Orders? There is no formal definition of systemic coherence that is satisfactory.30 The coherence of legal orders has been termed in different ways, such as the equivalent of ‘making sense as a whole’,31 the ability to ‘speak with one voice’,32 or the capacity to express ‘a single and comprehensive vision of justice’.33 According to some, coherence and consistency are related, to the extent the latter is a condition of the former.34 Others support the opposite view, arguing that a system may ‘make sense’ even if there are some inconsistencies within it.35 Given the imprecise meaning of coherence, this concept may function, at best, as a rhetorical argument,36 or as an analytical tool through which one may explain judicial decisions. One may doubt, however, whether systemic coherence produces legal effects, and it may consequently be considered as a ‘principle’.37 This problem is elucidated by the case-law on the locus standi of the European Parliament, beginning with Les Verts.38 At the time of this dispute, the Parliament was not listed among the organs whose acts were subject to judicial review, but the Court nonetheless accepted its capacity to be sued. Otherwise, measures adopted by the Parliament could have exceeded ‘the limits which have been set to the Parliament’s powers, without its being possible to refer them for review by the court’. Through a similar line of reasoning, the Court accepted in Chernobyl the active standing of the ep (which was not ­acknowledged by primary law): the lack of the ep’s right to bring an action for annulment constituted a procedural gap, which could not prevail over ‘the fundamental interest in the maintenance and observance of the institutional balance laid down in the Treaties’.39 30 31 32 33 34

35 36 37 38 39

Stefano Bertea, ‘Looking for Coherence within the European Community’ (2005) 11 ­ uropean Law Journal 154, at 160. E Neil MacCormick, ‘Coherence in Legal Justification’ in Aleksander Peczenik, Lars Lindahl and Bert Van Roermund (eds), Theory of Legal Science (Springer 1984), at 235. Ronald Dworkin, Law’s Empire (Harvard University Press 1986), at 165. Guest (n 3 p 13), at 39. Patrick Nerhot, Law, Interpretation and Reality: Essays in Epistemology, Hermeneutics and Jurisprudence (Springer 2013), at 297: ‘Consistency is the most fundamental requirement for rationality, and a necessary condition of coherence’. Cf. Schiavello (n 3 p 13), at 237. Cf. Stefano Bertea, ‘The Arguments from Coherence: Analysis and Evaluation’ (2005) 25 Oxford Journal of Legal Studies 369. On the effects of legal principles, see text to n 108 p 38. Parti Ecologiste ‘Les Verts’ v Parliament, C-294/83, eu:c:1986:166. Parliament v Council, C-70/88, eu:c:1991:373, para 26.

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From a philosophical perspective, one may argue that these judgements are inspired by a concern for coherence40 as a general preference for the cohesiveness of the European legal order as a whole.41 In strictly legal terms, however, the legal reasoning of the Court was not based on a ‘comprehensive vision of justice’: the ep was not given locus standi because such a choice ‘made sense’ in logical terms. The Court’s decisions are focussed on the protection of the attribution of powers set in the Treaties: had the Parliament lacked passive standing, it could have freely interfered with the exercise of the powers of other bodies; had it lacked passive standing, other bodies could have usurped its prerogatives. This suggests that the legal effects in these cases descended not from a ‘principle’ of coherence, but from the principle of conferral of powers. Since the coherence of legal orders can hardly be considered as a legal principle, it is not necessary to take it into account in the context of a legal analysis of cohérence in foreign affairs. When the Member States inserted a principle of external action ‘consistency’ into the Treaties, they might perhaps have intended to specify the content of another principle (the consistency of legal orders), but, probably, they did not intend to specify the content of a blurred concept, such as systemic coherence, which is not even a principle in legal terms. The next section of this chapter, therefore, investigates the notion of external action cohérence, elucidating its similarities and differences vis-à-vis the non-contradiction (consistency) of legal orders (and without taking systemic ‘coherence’ into account). ii

Notion of External Action Coherence

Several scholars have addressed the issue of cohérence in eu foreign affairs, reaching rather different conclusions. Three aspects of this concept are ­particularly uncertain. In the first place, its notion: is it a specification of the systemic consistency of legal orders? This section seeks to provide an answer to this question. The second problem regards the effects of cohérence: is it just a political requirement, which has no legal effect, or is it a fully-fledged legal principle, from which legal outcomes derive? This issue is addressed in the 40 41

See Bertea (n 30 p 19). One may indeed argue that the Court has brought ‘coherence’ to the articulation between the principle of institutional balance and the rules on locus standi, see Vlad Constantinesco, ‘The ecj as a Law-Maker’ in David O’Keeffe and Antonio Bavasso (eds), Judicial Review in European Union Law: Essays in Honour of Lord Slynn (Kluwer Law International 2000), at 79.

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next section. The third issue – how may coherence be implemented in practice? – is discussed in the next chapter. The study of the notion of cohérence begins by presenting the problem of consistency/coherence in general terms (1). Then, the investigation introduces the several references to ‘consistency’ in eu law (2), and provides for an interpretation, clarifying that it is not a specification of the principle of systemic consistency (3), but a requirement of synergy (coherence) between European foreign policies (4). Finally, the analysis discusses the possible dimensions that coherence may take, starting with the ones that are explicitly requested by the Treaties (5), and concluding with those that the Treaties do not explicitly request in terms of consistency/coherence (and which are consequently ­excluded from the analysis) (6). 1 The Problem of External Action Consistency/Coherence Consistency and coherence have been ‘a challenge to government since the inception of government’.42 Indeed, the public sector tends to develop through the specialisation of different government bodies and the creation of organisations that perform a limited number of functions. This improves performance of the individual programmes, but raises conflicts, gaps in service, and duplication.43 The issue of cohérence is particularly evident in the area of foreign affairs, since any issue may become the subject of international cooperation; hence, a multitude of authorities may potentially be involved in foreign policymaking. The fragmentation of foreign affairs might be extremely detrimental, since it may damage international strategies and jeopardise national security. This problem transparently affects the eu. The very process of European integration may be described as an attempt at fostering cohérence among the policies of eu Members. The attribution of competences to European institutions, at any rate, does not completely solve this problem. It actually raises a further difficulty, since the policies of the Member States coexist with those of the Union. This is particularly true in the field of external relations: eu ­countries are prone to protect their foreign policy prerogatives, since external sovereignty is one of the most crucial and visible characters of States.44 42 43

44

B Guy Peters, ‘Toward Policy Coordination: Alternatives to Hierarchy’ (2013) 41 Policy & Politics 569, at 569. Peters (n 42 p 21); see also Geert Bouckaert, B Guy Peters and Koen Verhoest, The Coordination of Public Sector Organizations: Shifting Patterns of Public Management (Palgrave ­Macmillan 2010). Hence, no entity (neither the eu nor its Member States) possesses the plenitude of the foreign relations power, see Enzo Cannizzaro, ‘Unity and Pluralism in the eu’s Foreign

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Another issue raised by the attribution of competences to the Union is the plurality of ‘sub-systems’45 in the eu’s structure, characterised by different balances of power between eu organs. The process of European integration has led to the creation of numerous external initiatives at eu level, ranging from external trade and development cooperation, to migration and environment protection. Each policy differs from the others in some respects: for instance, different directorates-general (dg) of the Commission participate in the drafting of the proposals, while different Council working groups and formations (and Parliament Committees) approve them. The summa divisio among eu policies regards the formerly ‘Community’ fields and the Common Foreign and Security Policy (cfsp). In non-cfsp ­areas, such as trade or development cooperation, decision-making procedures largely reflect the archetypal ‘Community method’.46 The Commission has the (almost) exclusive power of initiative, as well as the power of policy ­implementation (which it shares with the Member States). The Parliament and the Council, generally acting by qualified majority, share the legislative power.47 In addition, legal acts are under the jurisdiction of the Court of Justice. The Member States never envisaged extending this kind of method to foreign policy proper (including issues such as defence, recognition of third States, or human rights promotion). The eu’s competences in cfsp area – including the Common Security and Defence Policy (csdp) – are exercised through procedures that are reminiscent of the ‘intergovernmental’ method that prevails in most international organisations.48 The power is indeed concentrated in the organ that represents the Member States – the Council – which generally decides by unanimity. The more ‘supranational’ institutions – the Commission, the P ­ arliament, and the Court of Justice – play a limited role in the cfsp

45 46 47 48

Relations Power’ in Catherine Barnard (ed), The Fundamentals of eu Law Revisited: ­Assessing the Impact of the Constitutional Debate (Oxford University Press 2007), at 194. Cf. Cannizzaro, Il diritto dell’integrazione europea (n 6 p 14), at 144; see also above, text n 40. Cf. Paul Craig, ‘Institutions, Power and Institutional Balance’, The Evolution of eu Law (­Oxford University Press 2011). In addition, the Court of Justice has jurisdiction on all the legal acts adopted by the other institutions. It is true that ‘the so-called “communitarian” and the “intergovernmental” approaches often constituted rather “ideal-types” à la Max Weber than concrete methods or models – and they rarely operated in a “pure”, unadulterated form’, as noted by Antonio Missiroli, A Little Discourse on Method(s) (Egmont 2011) , at 2. Nonetheless, this dichotomy effectively expresses the different decision-making patterns in the ec and eu frameworks (and now in the non-cfsp and cfsp areas). Therefore the definitions ‘Community method’ and ‘intergovernmental method’ are retained here.

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­ rocess. The problem is that, notwithstanding their procedural differences, the p cfsp and non-cfsp areas are interconnected: ‘technical’ (non-cfsp) policies, such as trade or development cooperation, may have ‘political’ repercussions, which impact on the cfsp de facto, if not de jure. The eu’s trade policy towards Israel, discussed above, is a case in point.49 The coexistence of different external actions at the eu level may generate negative outcomes: an inefficient allocation of resources, the duplication of work, and even the mutual undermining of the different European initiatives.50 Union organs and several commentators have repeatedly argued that the challenge is now to bring together the different instruments and capabilities, in order to reinforce the European identity and its independence.51 The Member States acknowledged this necessity and inserted numerous references to ‘consistency’ in eu primary law, as shown in the next paragraph. 2 Primary Law References to External Action ‘Consistency’ The first meaningful reference to external action cohérence in eu law can be traced to the ‘Davignon Report’.52 This document was adopted by the foreign ministers of eec countries in October 1970, and laid the basis for interState consultation on the major issues of international politics. The Report 49 50

51 52

See pp 10–11. Arguably, one should not discard this problem as the inevitable product of the conflict between technical and political choices. It is true that some tensions between political and technical actions affect all international subjects, given the dominance of executives over foreign affairs and the fragmentation of responsibilities among different ministries. Cf. Peter Van Elsuwege, ‘eu External Action after the Collapse of the Pillar Structure: In Search of a New Balance between Delimitation and Consistency’ (2010) 47 Common Market Law Review 987, at 999–1000; Alan Dashwood, ‘The Continuing Bipolarity of eu External Action’ in Inge Govaere and others (eds), The European Union in the World: E­ ssays in Honour of Marc Maresceau (Brill | Nijhoff 2014), at 14. However, this problem seems to be particularly serious for the Union: the main non-cfsp executive (the Commission) has very limited power in the cfsp area. Moreover, the voting procedure of the cfsp area (unanimity in the Council) are radically different from the ones that characterise other fields (qualified majority voting in the Council and co-decision with the Parliament). It would be as if a State’s government were not reponsible for the political aspects of foreign policy, since that power is conferred to a senate composed of regional representatives, who normally vote by majority but, in the field of foreign policy, act by unanimity. Unsurprisingly, such a dysfunctional solution is not adopted by any State. See European Council, A Secure Europe in a Better world: European Security Strategy, 12 December 2003, Council doc. 10881/03, at 13 (hereinafter: European Security Strategy). Davignon Report (Luxembourg, 27 October 1970), Bulletin of the European Communities, November 1970, n° 11.

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r­ ecognised that the ‘low’ foreign policies managed by the Communities – e.g. trade – should have been better synchronised with the ‘high’ politics of the States (such as defence). For this purpose, the Member States should have harmonised their views in the field of international politics. The Davignon Report represented the starting point of the European Political Cooperation (epc), an informal framework for cooperation in foreign policy matters. The Single European Act (sea) formalised the epc in 1987, and introduced further references to cohérence as a European priority. The preamble of the sea recognised the responsibility incumbent upon Europe to aim at ‘speaking ever increasingly with one voice’, and to act with ‘consistency’ in order to more effectively protect its common interests. The Treaty on European Union (teu), adopted at Maastricht, further increased the focus on cohérence. This concept found its way into the ‘common provisions’ of the Treaty. According to Article A, the Union’s task consisted of organising relations between the Member States ‘in a manner demonstrating consistency’. Moreover, Article C affirmed that the Union had ‘in particular’ to ensure ‘the consistency of its external ­activities as a whole in the context of its external relations, security, economic and development policies’.53 Notwithstanding this broad formulation, Article C soon appeared insufficient. The Laeken Declaration of the European Council (2001), like the ­Davignon Report, noted that the eu had to introduce some changes to be a power able ‘to change the course of world affairs’.54 The eu should have, in ­particular, enhanced ‘the coherence of European foreign policy’.55 The ­Convention set up to draft a Treaty establishing a Constitution for Europe (hereinafter: European Constitution) addressed this problem in detail. The ­final report of the Convention’s Working Group vii emphasised that ‘a coherent approach in international affairs’ increases the Union’s credibility vis-àvis its partners. This consideration influenced the structure of the European ­Constitution. In this instrument, the legal bases for the intergovernmental and the ‘supranational’ strands of the external action are placed in the same Title,56 whereas they were previously contained in different Treaties (the teu and the 53

54 55 56

One may note that the first alinea of Article C affirmed that the Union was to be served by a single institutional framework – i.e. the same framework as the one of the European Communities – which should have ensured ‘consistency’ (presumably, between eu and ec initiatives). Presidency Conclusions, European Council meeting in Laeken, 14 and 15 December 2001, annex i: Laeken Declaration on the Future of the European Union, at 20. Ibid., at 23. teu, Title v.

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tec, respectively). The Constitution also introduced several references to ‘consistency’ in foreign affairs, as well as provisions applicable to the whole of the eu’s external action.57 After the failure of the European Constitution, some of these innovations were introduced in the Lisbon Treaty. To be sure, the Common Foreign and ­Security Policy and the formerly Community policies are now regulated in two different Treaties (the teu and tfeu respectively). However, the teu contains rules applicable to the entire external action (Chapter 1 of Title v teu). Moreover, the Lisbon Treaty preserved the numerous references to ‘­consistency’ provided for in the Constitution. The most relevant provisions are Articles 21(3) teu and 7 tfeu. The former affirms that ‘the Union shall ensure consistency between the different areas of its external action and between these and its other policies’. This provision evidently echoes Article C of the Maastricht Treaty, but broadens the scope of cohérence. The eu is no longer called to ensure consistency ‘in the context of its external relations, security, economic and development policies’, but throughout the spectrum of all its external policies, and between external policies and internal ones. Such an evolution appears logical, since the Lisbon reform (like the European Constitution) mainstreams policy cohérence to the whole of the eu’s sphere of intervention, including internal and external actions. According to Article 7 tfeu, in fact, the Union must ensure consistency between all ‘its policies and activities, taking all of its objectives into account and in accordance with the principle of conferral of powers’. Besides Articles 21(3) teu and 7 tfeu, several other provisions mention consistency. Articles 16(6) and 17(7) address the problem of intra-institutional ‘consistency’ within the Council and the Commission, respectively. Article 13(1) affirms that the ‘institutional framework’ of the Union must ensure the ‘­consistency’ of the eu’s policies. Some teu provisions confer the responsibility to promote external action consistency on specific eu organs: the ­Foreign Affairs Council (Article 16(6)), the High Representative (Article 18(4)), the Council and the High Representative (Article 26(2)), and the Council and the Commission, assisted by the hr (Article 21(3) teu). Finally, certain tfeu provisions request ‘consistency’ in the management of specific policies, notably international ­civil protection (196(1)(c)), international cooperation (212(1)), and humanitarian aid (214(7)).58

57 58

teu, Title v, Chapter i. Words similar to consistency are found also in other provisions of the Treaties. Article 210 tfeu, for instance, stipulates that ‘in order to promote the complementarity and

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Notwithstanding the attention the Member States devoted to cohérence, the uncertainties surrounding this issue, introduced above, remain. In the first place, what does external action ‘consistency’ mean? It is unclear why the ­Treaties mention ‘consistency’, while other instruments – like the Laeken Declaration – speak of ‘coherence’. There is also some confusion as to the elements that should be ‘consistent’: one may think of cohérence, for instance, between policies, between objectives and actions, or between policy-making procedures. The rest of this section seeks to clarify the notion of ‘consistency’ from a legal perspective. Secondly, what are the legal effects of external action ‘consistency’? One may doubt whether ‘consistency’ is a mere political aspiration or is a real legal principle. The Treaties do not clarify whether the concept of external action ‘consistency’ contains a rule, producing obligations, or whether it may have legal effects. The second section of this chapter addresses this issue, by verifying the effects coherence has in practice. Finally, which organ should enforce ‘consistency’, and how should it do so? The Treaties entrust the responsibility of bringing ‘consistency’ to at least three organs – the Council, the Commission, and the High Representative – but it is unclear whether any of them has the power to promote coherence in practice. The next chapter addresses this issue and suggests that coherence can be ­ensured mostly by the European External Action Service, which has the capability to coordinate eu foreign affairs. Negative Definition of External Action Coherence: Not a Specification of Systemic Consistency What do the Treaties mean by external action ‘consistency’? Perhaps, the most obvious solution would be interpreting this concept as a specification of the broader principle of systemic non-contradiction. If such an interpretation were correct, Articles 21(3) teu and 7 tfeu would be a simple reminder of the duty to prevent logical contradictions between statements of law in eu external relations. At first sight, a restrictive interpretation of ‘consistency’ may seem to correspond to the intention of the Member States: had they wanted ‘consistency’ to be read extensively – i.e. as a synonym of ‘coherence’ – they could have simply mentioned ‘coherence’ in Articles 21(3) teu and 7 tfeu. However, the linguistic considerations relating to the distinction between ‘consistency’ and ‘coherence’ have only relative importance. The ­semantic

3

e­ fficiency of their action, the Union and the Member States shall coordinate their ­policies on development cooperation’ (italics are mine).

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difference between these nouns in the English language is not evident: ­sometimes consistency is simply understood as coherence in the broader sense of this term.59 What is more, the distinction between consistency and coherence is absent from many European languages. The Italian, French, and Spanish ­versions of Articles 21(3) teu and 7 tfeu, for instance, employ words which may mean both consistency and coherence (‘coerenza’, ‘cohérence’, and ‘­coherencia’, respectively). According to settled case-law, the need for a uniform ­interpretation of European Union acts requires that, in case of doubt, a provision should be interpreted and applied in the light of the versions ­existing in the other official languages.60 Where there is divergence between language versions of a European Union legal text, the provision in question must be ­interpreted by reference to the purpose and general scheme of the rules of which it forms a part.61 If one takes into account the general scheme of ­external action rules, it becomes apparent that an exceedingly restrictive interpretation of the notion of ‘consistency’ is unwarranted. One may doubt, in fact, whether a reference to the systemic non-contradiction of external action rules would be necessary. The Court of Justice routinely ensures systemic consistency in foreign affairs, by relying on established principles of eu law (and without the need to refer to provisions such as Articles 21(3) teu or 7 tfeu). The contradictions between the acts of the Union and those of its Members are solved in this field, like in all others, on the basis of the principle of conferral and its corollaries, notably sincere ­cooperation and primacy.62 The States cannot jeopardise eu initiatives, even indirectly, by concluding international agreements in areas covered by eu ­internal law. ­According to the erta doctrine, if the eu has exercised its internal c­ ompetences in order to pursue the objectives conferred by the Treaties, the Member States no longer

59

Christian NK Franklin, ‘The Burgeoning Principle of Consistency in eu Law’ (2011) 30 Yearbook of European Law 42, at 47. 60 See Ezz and others v Council, T-256/11, eu:t:2014:93, para 62; Homawoo v gmf Assurances, C-412/10, eu:c:2011:747, para 28 and the case-law cited. 61 dr and TV2 Danmark v ncb, C-510/10, eu:c:2012:244, para 45 and the case-law cited. Cf. Article 33(1) of the 1969 Vienna Convention on the Law of the Treaties, 1969, unts vol. 1155, p. 351 (hereinafter: Vienna Convention 1969). 62 The eu can adopt acts only in the ambit of its competences (Article 5(2) teu); any act ultra vires would be invalid, or even inexistent. Conversely, an act of a Member State which infringes on the exercise of eu competences would entail a violation of the duty of sincere cooperation. Hence, any conflict between the Member States’ law and eu law would be solved by giving primacy to the latter over the former.

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have the right ‘to undertake obligations with third countries which affect those rules’.63 Similarly, the legal contradictions between the acts pertaining to the d­ ifferent policies of the Union may generally be prevented by relying on the principle of conferral. eu policies are based on different competences, which each have a different material scope and different objectives. Each measure adopted by the Union is grounded on such a competence and is founded, in particular, on a Treaty provision that empowers the eu to act: the so-called ‘­legal basis’. In order to identify the correct legal basis of a measure, the Court of Justice applies the ‘centre of gravity’ doctrine, pursuant to which the choice of the legal basis for a measure must be based on objective factors which are ­amenable to judicial review.64 Those factors include in particular the aim and content of the measure.65 A measure concerning, substantively and t­eleologically, an ­issue covered by a competence must be adopted in the policy ­framework of that competence. Therefore, the judge can solve the contradictions between acts relating to different policies by applying the principle of conferral, thus making sure that they do not overlap.66 These considerations apply a fortiori to the interaction between the cfsp and the formerly ‘Community’ policies. Given the difference between cfsp and non-cfsp procedures, the Member States protected the Community 63

Commission v Council (erta), Case 22–70, eu:c:1971:32, para 17; see also, inter alia, ­Commission v Council, C-114/12, eu:c:2014:2151, para 68; Opinion 1/13, eu:c:2014:2303, ­paras 71–74; Green Network v Autorità per l’Energia Elettrica e il Gas, C-66/13, eu:c:2014:2399, para 33. Article 3(2) tfeu now seeks to provide a ‘snapshot’ of erta and of the ­following ­case-law in this area (though not unproblematically), see Marise Cremona, ‘­Defining Competence in eu External Relations: Lessons from the Treaty Reform Process’ in Alan Dashwood and Marc Maresceau (eds), Law and Practice of eu External Relations (­Cambridge University Press 2008), at 69. See also Inge Govaere, ‘Setting the International Scene: eu External Competence and Procedures Post-Lisbon Revisited in the Light of Opinion 1/13’ (2015) 52 Common Market Law Review 1277; Maria C Baruffi, ‘Le competenze esterne della Comunità e dell’Unione europea. Uno sguardo ai rapporti con i Paesi del Mediterraneo’, L’evoluzione del sistema comunitario a 50 anni dalla sua istituzione (Cedam 2008). 64 See inter alia Commission v Council, case 45/86, eu:c:1987:163, para 11; Commission v C ­ ouncil, C-300/89, eu:c:1991:244, para 10. 65 See inter alia Commission v Council, C-300/89, eu:c:1991:244, para 10; Parliament v Council, C-130/10, eu:c:2012:472, para 42. 66 Cf. Cannizzaro, Il diritto dell’integrazione europea (n 6 p 14), at 144. In any event, contradictions between norms contained in acts relating to different policies (which may be perhaps be possible if an act addresses primarily a policy and incidentally another one) may be solved by applying other criteria, such as the temporal one (lex posterior derogat priori).

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sphere from intergovernmental influences (which would have implied a step backwards for European integration). The Maastricht Treaty introduced a provision – Article 47 teu – pursuant to which nothing in the teu (including the cfsp provisions) should have affected ‘the Treaties establishing the E ­ uropean Communities’. The Lisbon Treaty replaced this provision with Article 40 teu, making the non-affectation clause ‘symmetrical’.67 On the one hand, the implementation of the cfsp should not affect ‘the application of the procedures and the extent of the powers’ of the institutions laid down by the Treaties for the exercise of non-cfsp competences. On the other hand, the implementation of non-cfsp competences should not affect the cfsp. Article 40 teu thus reinforces the division of powers that is protected through the principle of conferral, contributing to ensure the non-overlapping, and thus the noncontradiction, of cfsp and non-cfsp initiatives.68 It is worth noting that this non-contradiction is judicially enforceable, since Article 275 tfeu ­explicitly grants the Court of Justice jurisdiction in respect of the application of Article 40 teu. In light of these considerations, one may argue that systemic non-contradiction is not a particularly serious problem for the external action: the areas of action of the Union are delimited in principle, and the Court may ‘police the boundaries’ in practice. Hence, there was no need for the Member States to emphasise the delimitation of eu external action competences through provisions such as Articles 21(3) teu and 7 tfeu. What is more, it would have been incongruous to entrust the promotion of such consistency on the Council, the Commission, and the High Representative, as Articles 16, 18, 21 and 26 teu do. Maintaining the ‘consistency of eu law’ is a task of the Court of Justice,69 not that of political organs. This suggests that Articles 21(3) teu and 7 tfeu are not concerned with the protection of the systemic non-contradiction of the eu legal order.70 It would seem more logical that these provisions should request something different from, and more than, systemic non-contradiction. 67 68 69 70

Cf. Dashwood (n 50 p 23), at 12; Stefano Amadeo, Unione europea e treaty-making power (­Giuffrè 2005), at 233. The differences between Article 47 teu (pre-Lisbon) and 40 teu (post-Lisbon) are ­discussed in Chapter 1.iii.3.1. Cf. Article 256(3) tfeu. Some authors seem to treat policy coherence as a subset of the more general issue of systemic coherence. See, for instance, Theodore Konstadinides and Ester Herlin-Karnell, ‘The Rise and Expressions of Consistency in eu Law: Legal and Strategic Implications for European Integration’ (2013) 15 Cambridge Yearbook of European Legal Studies 139, at 141–142.

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Positive Definition of Coherence: A Requirement of Synergy in eu Foreign Affairs The letter of Articles 21(3) teu and 7 tfeu indicates that these provisions ­request ‘consistency’, not between legal statements, but between ‘policies’, ‘­activities’, and ‘areas’.71 The scope of these provisions thus appears wider than that of the principle of systemic non-contradiction: the ‘policies’ of the Union may be at odds even in the absence of legal antinomies. The example regarding development cooperation and agriculture reported above72 is a case in point: giving money to developing countries, while barring them from accessing the common market, is a case of ‘inconsistent’ policies, but does not necessarily depend on contradictions between legal statements. It rather depends on the functional overlapping of two policies that are defined by different actors and in different contexts. One may think of inconsistencies between policies even in the absence of legal acts: while every norm expresses a policy, not all policies are expressed through norms.73 The meaning of external action ‘consistency’ becomes apparent when one adopts a teleological and systemic reading of the Treaty provisions on the ­external action. The teu preamble stipulates that the eu should reinforce ‘the European identity and its independence’ on the global stage. In order to reach this objective, eu bodies should ensure the ‘unity’ of action by the Union (­Article 26(2) teu), and the ‘effectiveness’ of its external action (Articles 13(1) and 26(2) teu). The Member States, at the same time, should achieve an ‘­ever-increasing degree of convergence’ in foreign policy (Article 24(2) teu), and should not impair the eu’s ‘effectiveness’ as a ‘cohesive force’ in international relations (Article 24(3) teu). These references to cohesion, unity, and effectiveness suggest that eu ­bodies, as well as eu Members, should apply all their leverage internationally by enhancing the complementary interaction of various policy actions.74 They should make use of the potential offered by all the instruments at their disposal to create a comprehensive strategy, which ‘reinforce[s] the 4

71

72 73 74

Article 21(3) teu indeed stipulates that ‘the Union shall ensure consistency between the different areas of its external action and between these and its other policies’. ­Article 7 tfeu reads: ‘The Union shall ensure consistency between its policies and activities’ (­emphases added). See text to n 3 p 10. I thank Pietro Manzini for pointing this out. European Commission, Communication ‘Europe in the World – Some Practical Proposals for Greater Coherence, Effectiveness and Visibility’, com(2006) 278 final, at 6.

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European identity’,75 and which facilitates the affirmation of the eu on the international scene.76 In other words, Articles 21(3) teu and 7 tfeu arguably request eu bodies and Member States to create ‘synergies’,77 by forming connections between external policies, to ensure added value in European foreign affairs.78 Therefore, the word ‘coherence’ arguably describes the content of Articles 21(3) teu and 7 tfeu better than the word ‘consistency’.79 Hence, the current work henceforth uses the word ‘coherence’ instead of ‘consistency’ (even if the Treaties do otherwise). The definition of coherence as a requirement of synergy permits to assess its relationship with the other dimension of cohérence, i.e. consistency. It is ­common to affirm that the idea of coherence encompasses both the ­absence of contradictions within the external activity in different areas of foreign ­policy (consistency), and the establishment of a synergy between these ­aspects (coherence).80 This argument is certainly correct if one thinks of the  ­contradictions between policies: the eu agricultural policy may be 75

76

77

78

79

80

teu, preamble. As is well known, the preambles of eu Treaties may serve as a r­ eference for the interpretation of eu law, see Carlo Curti Gialdino, ‘Osservazioni sul contenuto e sul valore giuridico del preambolo del Trattato sull’Unione europea’ (2011) 6 Studi sull’integrazione europea 457, at 473–481. Isabelle Bosse-Platière, L’article 3 du traité ue: recherche sur une exigence de cohérence de l’action extérieure de l’Union européenne (Bruylant 2009), at 524. See also Eleftheria ­Neframi, L’action extérieure de l’Union européenne: Fondements, moyens, principes (Librairie générale de droit et de jurisprudence 2010), at 141; Isabelle Bosse-Platière, ‘L’objectif d’affirmation de l’Union Européenne sur la scène internationale’ in Eleftheria Neframi (ed), Objectifs et compétences dans l’Union Européenne (Bruylant 2013), at 268. Frank Hoffmeister, ‘Inter-Pillar Coherence in the European Union’s Civilian Crisis Management’ in Steven Blockmans (ed), The European Union and crisis management: policy and legal aspects (tmc Asser 2008), at 161; Pascal Gauttier, ‘Horizontal Coherence and the External Competences of the European Union’ (2004) 10 European Law Journal 23. Christophe Hillion, ‘Tous pour un, un pour tous! Coherence in the External Relations of the European Union’ in Marise Cremona (ed), Developments in eu External Relations Law (Oxford University Press 2008), at 17. Cf. C Tietje, ‘The Concept of Coherence in the Treaty on European Union and the Common Foreign and Security Policy’ (1997) 2 European Foreign Affairs Review 211, at 213; Gauttier (n 77 p 31), at 26; Steven Blockmans and Marja-Liisa Laatsit, ‘The European External Action Service: Enhancing Coherence in eu External Action?’ in Paul James Cardwell (ed), eu External Relations Law and Policy in the Post-Lisbon Era (Springer 2012), at 138; Steven Blockmans, ‘Beyond Conferral: The Role of the European External Action Service in Decision-Shaping’ in J Larik and M Moraru (eds), Ever-closer in Brussels – Evercloser in the world? eu External Action after the Lisbon Treaty (European University Institute 2011), at 7. Gauttier (n 77 p 31), at 25–26.

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s­ynergetic with development cooperation only if it does not contradict it. ­Policy consistency thus appears as a pre-requisite for the coherence required by Article 21(3) teu. On the other hand, systemic consistency (the non-contradiction between statements of law) is not related to external action coherence and is not a ­pre-requisite thereof. The protection of systemic consistency may sometimes bring about increased coherence, if it serves to centralise decision-making powers.81 For instance, in Opinion 1/03 (on the Lugano Convention), the Court considered that the preservation of the consistency of eu measures justified the exclusive character of the eu’s competences in the area at issue.82 Similar considerations apply to the erta case-law.83 Ensuring systemic non-contradiction, in these cases, means reducing the number of decision-makers (from 28 Member States to one: the European Union), thus ensuring unity. However, systemic consistency may also hinder the attainment of coherence at the political level. The concern for the non-contradiction of legal rules may bring the Court to adopt a rigid interpretation of the powers of eu bodies, to make sure that the same issue is not covered by (potentially inconsistent) rules stemming from different policies.84 By so doing, the Court promotes systemic consistency, but creates obstacles for policy coherence: the procedural fragmentation that derives from the rigid delimitation of power is hardly conducive to the formulation of a coherent set of policies. Hence, Article 40 teu, which introduces a rigid distinction between the cfsp and the noncfsp ­sector, may be considered contemporarily in a positive way, as a means

81

82 83

84

Cremona and Van Vooren argue, in fact, that coherence is fostered by the rules for conflict avoidance between potentially conflicting norms and for resolving conflicts, see Marise Cremona, ‘Coherence through Law: What Difference Will the Treaty of Lisbon Make?’ (2008) 3 Hamburg Review of Social Sciences 11, at 14; Marise Cremona, ‘Coherence in ­European Union Foreign Relations Law’ in Panos Koutrakos (ed), European Foreign Policy: Legal and Political Perspectives (Edward Elgar 2011), at 60; Van Vooren (n 11 p 11), at 70. Christophe Hillion, Cohérence et action extérieure de l’Union Européenne (European ­University Institute 2012), at 4. Indeed, according to this case-law, if the eu has exercised its internal competences, the Member States cannot undertake obligations with third countries which affect those rules, see the erta judgement and the following case-law (n 63 p 28). The case-law on the centre of gravity, in particular, may be read in this sense, see Cf. Mignolli (n 3 p 13), at 110–115. Cf., in particular, Opinion 2/00, eu:c:2001:664; Commission v Council, C-281/01, eu:c:2002:761; Commission v Council, C-94/03, eu:c:2006:2; Commission v Parliament and Council, C-178/03, eu:c:2006:4. See also the examples provided for in Chapter 1.iii.3.1.

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to ­prevent inconsistencies (in terms of legal antinomies) and negatively, as a separation clause that threatens coherence (in terms of political synergy).85 5 The Two Dimensions of Coherence: Vertical and Horizontal Synergy Having established that the principle of external action coherence concerns a relationship between policies, one should determine which policies should be coherent. From a political perspective, coherence may have several dimensions: the observer may arbitrarily decide which forms of coherence matter.86 However, from a legal viewpoint, the meaning of ‘coherence’ may be pinned down more precisely. Articles 21(3) teu and 7 tfeu speak of coherence between the areas of the eu’s external action, and between the latter and the other policies of the Union. It would seem, therefore, that eu bodies should create connections between the different external initiatives of the Union, in order to ensure a synergetic foreign policy at the eu level. This requirement may be termed as ‘horizontal coherence’. Despite the formulation of Articles 21(3) teu and 7 tfeu, one should not think of the requirement of coherence solely in terms of the interplay between eu-level policies. As noted by the Working Group on external relations of the European Convention, ensuring coherence is not only a responsibility of eu bodies, but is a responsibility shared by the institutions as well as by Member States.87 Several provisions indeed suggest that there is a requirement of synergy (similar to the one contained in Article 21(3) teu) which covers the interplay between the policies of the Union and those of its Members. Such a requirement applies, first of all, to the Common Foreign and Security Policy. According to Article 32 teu, Member States must ensure, through the convergence of their actions, that the Union is able to assert its interests and values on the international scene. They must also show ‘mutual solidarity’. In addition, Article 24(3) teu stipulates that the Member States must support the Union’s foreign and security policy ‘actively and unreservedly’, and must ­refrain from any action which is likely to impair the eu’s effectiveness as a ‘cohesive’ force in international relations. In other words, the Member States must contribute, through their foreign policies, to the eu’s ‘cohesion’ (a  ­concept 85

86 87

Cf. Eleftheria Neframi, ‘Exigence de cohérence et action extérieure de l’Union Européenne’ in Valérie Michel (ed), Le droit, les institutions et les politiques de l’Union Européenne face à l’impératif de cohérence (Presses Universitaires de Strasbourg 2009), at 69. Cf. Van Vooren (n 11 p 11), at 5. Final report of Working Group vii on External Action, 16 December 2002, conv 459/02, para 23.

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that is similar to coherence) on the international scene. Such an obligation seems logical, considering that vertical coherence is indispensable to pursue the ultimate purpose of the cfsp, as acknowledged by the preamble of the teu: ‘reinforcing the European identity and its independence’. Ideas ­similar to vertical coherence are found in non-cfsp areas, too. Article 210 tfeu, for instance, stipulates that the Union and the Member States must coordinate their policies on development cooperation to ensure ‘the complementarity and efficiency’ of their action. Similarly, Articles 212(1) and 214(1) tfeu (on the eu’s cooperation with industrialised countries and humanitarian aid, respectively) affirm that the Union’s operations and those of the Member States must ‘complement and reinforce each other’.88 From these provisions, read in combination, one may abstract a ­general obligation, binding on the eu and its Members, to ensure vertical coherence, which is complementary to the one relating to horizontal coherence, ­provided for in Article 21(3) teu. Horizontal and vertical coherence may thus be ­described as expressions of a more general principle of external action coherence.89 The characterisation of coherence as a principle appears logical, considering that policy coherence is indeed imposed by Article 7 tfeu, which is one of the Treaty ‘provisions having general application’ – that is, a principle of the eu’s legal order.90 88

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The only eu’s external policies in respect of which the Treaties do not mention the need to ensure a connection between eu and States’ policies are external trade and restrictive measures. These omissions are logical, since (i) external trade is an exclusive competence of the eu (and consequently there is no need for vertical coherence), and (ii) restrictive measures are adopted through a partly cfsp procedure, which is already subject to the requirement of coherence set in Article 24 teu. Bosse-Platière argues that ‘une présentation qui conduit à distinguer cohérence horizontale et cohérence verticale, en dépit de sa pertinence et de son utilité didactique, ne nous semble pas suffisante, car partielle’, see Bosse-Platière, L’article 3 du traité ue (n 76 p 31), at 22. It is true that these concepts are linked, both in theory and in practice; for instance, the cfsp was created as a tool to ensure vertical coherence, but raises issues of horizontal coherence. At any rate, it would seem useful to draw an analytical distinction between vertical and horizontal coherence, since these concepts have different political nature and different legal sources. Cf. Hillion, Cohérence et action extérieure (n 82 p 32), at 4: ‘Alors que le tue en fait l’une des dispositions générales au regard desquelles l’Union mène son action extérieure, le tfue consacre l’exigence de cohérence comme l’un des “principes” qui organisent le “­fonctionnement de l’Union”’. Coherence is comparable, in this respect, to other principles of eu law, such as equality (Article 8 tfeu) and non-discrimination (Article 10 tfeu). On the legal effects of the principle of coherence, see Chapter 1.iii.

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6 Irrelevance of Other Forms of Coherence for the Present Analysis Several conceptualisations of external action coherence, aside from the one presented in the previous paragraph, have been put forward in the literature. Although they might be interesting from an analytical perspective, they are not necessary for the purpose of the present investigation. Some forms of coherence seem to be sub-species of horizontal or vertical coherence. For instance, it is commonplace to speak of policy coherence for development.91 The attainment of such coherence is obviously dependent on the harmonisation of policies at the European level, and between the eu and its Members. Hence, one does not need to conceptualise it as an autonomous aspect of coherence. Similarly, internal-external coherence arguably is not a stand-alone requirement. All internal policies have external dimensions: ­promoting synergy between internal and external policies is part of the general effort towards ensuring vertical and horizontal coherence. Some authors have mentioned also intra- and inter-institutional coherence,92 but these concepts, from the perspective of Article 21(3) teu, appear as a subset of horizontal coherence. eu institutions are complex bodies, and they should consequently ensure internal synergy for the purpose of contributing to horizontal coherence as a whole.93 Similarly, the institutional framework of the Union should ensure the ‘consistency’ of the Union’s policies (ex Article 13(1) teu) as a part of horizontal coherence: if the eu is to conduct synergetic foreign affairs, all its organs should cooperate. One may think, in theory, of inter-State coherence. The coherence between foreign policies is not a problem that affects only the actions at eu level 91

Policy coherence for development may be defined as ‘the systematic application of mutually reinforcing policies and integration of development concerns across government departments to achieve development goals along with national policy objectives’, oecd Office of the Secretary-General, Policy Framework for Policy Coherence for Development, at 3, available at accessed 19 December 2015. See also European Commission Staff Working Document, Policy Coherence for Development – 2015 eu Report, swd(2015) 159 final. 92 See e.g. Neframi, ‘Exigence de cohérence’ (n 85 p 33), at 51–54; Cremona, ‘Coherence through Law’ (n 81 p 32), at 25. 93 Intra-institutional coherence is requested by Article 16(6) teu, which affirms that the General Affairs Council ensures ‘consistency’ in the work of the different Council configurations. Similarly, Article 17(6) teu asserts that the President of the Commission ensures that the institution acts ‘consistently’. These requirements appear logical, considering that the Council meets in different configurations, which exercise legislative functions in different areas, and the Commission consists of a number of members (currently 27, plus the President) who are responsible for different policy fields.

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(­horizontal coherence) or the relationship between eu and Member States’ policies (vertical coherence), but it ultimately concerns the foreign policies of eu countries as such.94 At any rate, it is not necessary to conceptualise interState coherence as an autonomous requirement. Ensuring synergy between the actions of eu Members is part of the effort to foster vertical coherence:95 it would be difficult to ensure coherence between a European foreign policy and twenty-eight different national actions. Other forms of coherence, hypothesised in the literature, do not seem related to the principle of external action coherence, as defined above. This is the case, first of all, of temporal coherence, i.e. the synergy between eu policies across a period of time.96 Temporal coherence is certainly a political necessity,97 but nothing in the Treaties suggests that the eu or its Members cannot modify their foreign policy, if they so desire. Another kind of coherence which is not addressed in this analysis is teleological coherence.98 Pursuant to Article 5(2) teu, the Union should act only to attain the objectives set out in the Treaties. Hence, this provision imposes a requirement of consistency between objectives and means.99 This problem is certainly relevant in 94

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In fact, primary law creates obligations of conduct meant to foster inter-State coherence, in the area where this is most necessary, i.e. the cfsp (see Articles 24(2) and 32 teu). Since all eu Members must approve cfsp decisions – which are taken by unanimity within the Council – it is essential to forge consensus among them. This is testified by the purpose of the European Political Cooperation, which was created to provide the Member States ‘with ways and means of harmonizing their views in the field of international politics’ in order to promote cohesion between national foreign policies and eu actions, see Davignon Report (Luxembourg, 27 October 1970), Bulletin of the European Communities, November 1970, n° 11, part one, para 10. Cf. Wouters and others (n 1 p 1), at 38. For instance, rejecting Turkey’s demands for eu membership on the basis of its alleged ‘non-Europeanness’ (as some European leaders do) after the eu has negotiated the ­possible accession of Turkey for years is ‘close to provocation’, Marc Maresceau, ‘Turkey: A Candidate State Destined to Join the Union’ in Niamh Nic Shuibhne and Laurence W Gormley (eds), From Single Market to Economic Union: Essays in Memory of John A Usher (Oxford University Press 2012), at 335. Cf. Bosse-Platière, L’article 3 du traité ue (n 76 p 31), at 425 ff; Neframi, L’action extérieure de l’Union européenne: Fondements, moyens, principes (n 76 p 31), at 146–147. One may see teleological coherence as a form of ‘consistency’, since it concerns the ­non-contradiction between a piece of secondary law and the objectives set by the eu Treaties. From this perspective, it may be described as akin (though not identical) to policy coherence, as required by Articles 21(3) teu and 7 tfeu; see, to that effect, Mauro Gatti, ‘The Log in Your Eye: Is Europe’s External Promotion of Religious Freedom Consistent with Its Internal Practice?’ (2016) 22 European Law Journal 250, at 252–254.

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terms of c­ onferral of competences, and from a political perspective (though it is not always respected).100 At any rate, it is not directly related to the coherence between different policy ‘areas’ envisaged by Article 21(3) teu.101 Similar considerations extend to geographical coherence, i.e. the adoption of similar measures to address comparable international situations. For example, one may argue that the eu is incoherent with respect to the selection of countries against which it imposes sanctions,102 but that does not mean that there are contradictions between the different ‘areas’ of the eu’s external action. In summary, external action coherence may have different dimensions from a logical perspective, but what the Treaties refer to as ‘consistency’ is policy coherence. This concept has two dimensions: a horizontal and a vertical one. These are the only two dimensions of the principle of coherence that are taken into account in the rest of this book – and which have legal effects in practice, as demonstrated in the next section.103 100 For instance, the eu’s asylum and migration policy does not appear entirely consistent with the eu’s (alleged) values. ‘Solidarity’ (within the eu and with third countries) is ­allegedly a principle and an objective of the eu’s external action in this field, see Federica Toso, ‘Le Bureau européen d’appui en matière d’asile: représente-t-il une bonne réponse à la demande de solidarité dans les relations extérieures de l’ue ?’ in Marianne Dony (ed), La dimension externe de l’espace de liberté, de sécurité et de justice au lendemain de Lisbonne et de Stockholm, un bilan à mi-parcours (Editions de l’Université de Bruxelles 2012). However, it would seem that the eu’s policy has not always been consistent with this alleged principle – and with other core principles of the eu’s legal order (such as the protection of human rights). Cf., e.g., the case of the cooperation with Libya, analysed by Valeria Bonavita, ‘The fsj Component of eu-Libya Relations: Building Coherence, Avoiding Contradictions or None of the Above?’ in Catherine Flaesch-Mougin and Lucia Serena Rossi (eds), La dimension extérieure de l’espace de liberté, de sécurité et de justice de l’Union européenne après le Traité de Lisbonne (Bruylant 2013), at 589–596 and 601. 101 One may note that the first indent of Article 21(3) teu recalls that the eu must pursue the objectives of the external action (set in Article 21(2) teu); it would not seem, at any rate, that the first indent of Article 21(3) teu is related to the requirement of coherence, which is imposed by the second indent of this provision. 102 Klaus Brummer, ‘Imposing Sanctions: The Not So Normative Power Europe’ (2009) 14 ­European Foreign Affairs Review 191. See also Peter Van Elsuwege, From Soviet Republics to eu Member States: A Legal and Political Assessment of the Baltic States’ Accession to the eu, Studies in eu External Relations (Martinus Nijhoff 2008), who argues, at 261, that the eu’s pre-accession minority protection initiatives in respect of Estonia, Latvia and Slovakia revealed ‘the absence of a coherent overall policy’. Cf. Bosse-Platière, L’article 3 du traité ue (n 76 p 31), at 425 ff. 103 One may argue that ‘teleological coherence’ may have legal effects, since the Union must pursue the objectives set in the Treaties. However, this requirement is not a stand-alone principle, but is part of the principle of conferral of competences (cf. Art. 5(2) teu).

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Legal Effects of External Action Coherence

The uncertainties surrounding coherence are not limited to the meaning of this concept, but extend to its legal effects. Existing analyses do not provide for any clear conclusion: some authors argue that coherence is a mere political requirement,104 while others affirm that it has legal effects in practice.105 This second argument would seem prima facie more logical, since coherence is requested by a primary law provision ‘having general application’ – that is, a principle106 (i.e. a fundamental proposition of law from which concrete rules or outcomes derive).107 One may wonder, at any rate, which effects coherence may have. As a legal principle, coherence is unlikely to create rights and obligations directly, but it may influence the interpretation of other norms, and particularly the interpretation of other principles.108 The most important one, in this respect, is the principle of conferral of competences and powers. Since coherence presupposes the creation of connections between external policies, one may surmise that it may conflict with the attribution of competences and powers, which seeks to delimit areas of action of the Union and of its organs. This section seeks to ascertain if – and how – the principle of coherence affects the interpretation of conferral in practice. The analysis begins by clarifying in abstracto the relationship between coherence and conferral of competences and powers (1). Then, the analysis turns to the practice, and discusses how eu institutions and Members have balanced the principle of coherence 104 See Bosse-Platière, L’article 3 du Traité ue (n 76 p 31), at 790 and, especially, at 59–60: ‘il semble que l’absence de normativité de l’Article 3 ue – c’est-à-dire de caractère obligatoire dont le contrôle est confié à la sagacité du juge – ait un effet dirimant à son affirmation en tant que principe juridique’. 105 Hillion notes that coherence is a legal principle and is justiciable; its characterisation as a ‘political’ concept does not detract from its legal character: ‘le contrôle de la subsidiarité fut également considéré comme éminemment politique et, partant, inopportun, avant d’entrer finalement dans le prétoire européen’, see Hillion, Cohérence et action extérieure (n 82 p 32), at 6. 106 Cf. n 90 p 34. 107 Cf. Takis Tridimas, The General Principles of eu Law (Oxford University Press 2013). See also Claude Blumann, ‘Objectifs et principes en droit communautaire’, Le droit de l’Union européenne en principes: liber amicorum en l’honneur de Jean Raux (Apogée 2006). 108 Principles may also be defined as general norms, which may be derogated from and which are not susceptible per se of being used to solve a specific case. However, they may influence the interpretation of other rules, especially with respect to the implementation of other principles. Cf. Guastini (n 2 p 13), at 70–71.

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against the vertical distribution of competences (2) and the horizontal allocation of powers (3). 1 Tension between Coherence and Delimitation of eu Policies The principle of conferral may be easily called into question by the promotion of coherence: while the former is meant to draw lines between the different fields of action of each decision-maker, the latter seeks to create ‘bridges’ across those lines. As noted by the Commission, to promote coherence, eu bodies must not delimit their spheres of action, but must ‘bring together’ the different instruments and assets, ‘whether within the Commission, between the Council and Commission, or between the eu institutions and the Member States’.109 European foreign policies should not be separated and pass by each other like ‘ships in the night’.110 They should be closely linked and communicate regularly. Arguably, the promotion of coherence is dependent not on a strong delimitation of competences, but on a weak one.111 The potential tension between the concern for external action coherence and the delimitation of eu competences, and the powers of its bodies, would seem to be acknowledged by Article 7 tfeu. According to this provision, the Union must ensure coherence between its policies (i.e. horizontal coherence) ‘in accordance with the principle of conferral of powers’. Since this provision mentions the ‘principle of conferral of powers’, it may seem reminiscent of ­Article 13(2) teu, whereby each eu institution should act within the limits of the ‘powers conferred’ on it in the Treaties. Hence, one may be tempted to think that eu bodies should strictly respect the delimitation of their powers while pursuing horizontal coherence. One might also infer, by analogy, that the attainment of vertical coherence should be subordinated to the respect for the delimitation of eu competences.

109 European Commission, Communication ‘Europe in the World – Some Practical Proposals for Greater Coherence, Effectiveness and Visibility’, com(2006) 278 final, at 6. 110 The expression, originally from Henry Wadsworth Longfellow, is taken from the O ­ pinion of AG Poiares Maduro, Kadi and Al Barakaat v Council and Commission, C-415/05 P, eu:c:2008:30, para 22. 111 One may argue, that, in principle, a clear delimitation of competences and powers may be conducive to a more effective external action, since it allows public authorities to focus on policy-making, instead of conducting sterile turf battles. The fact remains, however, that enstrusting the management of different, but interlinked, policies to separate actors, which adopt different procedures and have different objectives, is hardly conducive to ­coherence, not matter how well-defined the boundaries of their competences and powers are.

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However, such an interpretation of Article 21(3) teu is not entirely satisfactory. One should note that Article 21(3) does not mention the principle of conferral of powers. Being Article 7 tfeu the lex generalis of policy coherence, while Article 21(3) teu is the lex specialis of external action coherence, one may argue that – even if there were a subordination of coherence to conferral under Article 7 tfeu – such a subordination may not apply in the field of external relations. Even assuming – for the sake of argument – that Article 21(3) teu should be interpreted in keeping with Article 7 tfeu, one may hardly assume that policy coherence should always be subordinated to the delimitation of competences and powers. The formulation of Article 7 tfeu is indeed puzzling. Whereas the English version of Article 7 mentions the principle of conferral of ­‘powers’, other versions (such as the Italian, French, Spanish, and Portuguese ones) speak of attribution of ‘competences’. They would thus seem to point to Article 5(2) teu (providing for the attribution of ‘competences’ to the Union).112 Such a reference to Article 5(2) teu does not seem very logical. Article 7 tfeu requests horizontal coherence, i.e. synergy between the policies of the Union. This dimension of coherence is related to (and threatened by) the ­division of power between eu organs (protected by Article 13(2) teu), not by the division of competences between the States and the Union (addressed by Article 5(2) teu). Hence, it is not clear why Article 7 tfeu should be interpreted in keeping with Article 5(2) teu. One may surmise that the reference to ‘conferred powers’ in Article 7 tfeu is not particularly relevant per se. Probably, it constitutes one of the several superfluous references to the principle of attribution of competences contained in the Treaties.113 Rather than imposing the subordination of coherence to conferred powers, Article 7 tfeu would thus seem another example of the 112 The notions of competence and power are notoriously blurred: Article 291(2) tfeu, for instance, mentions the implementing ‘powers’ of the Commission in the English version and the implementing ‘competences’ in the French, Italian, Spanish and Portuguese ones (compétences, competenze, competencias, competências). Nonetheless, a literal and contextual interpretation of Article 7 tfeu suggests that this provision refers indeed to the conferral of competences (to the Union). This privision explicitly mentions (in the French, Italian, Spanish, and Portuguese versions) ‘the principle of conferral of competences’ (attribution des competences, attribuzione delle competenze, atribución de competencias, atribuição de competências). This formula echoes Article 5(2) teu, which stipulates that, under ‘the principle of conferral’, the Union shall act only within the limits of the ‘competences’ conferred upon it. 113 See e.g. Article 4(1) and 5(2) teu, the Charter of Fundamental Rights, Art. 51(2) and ­Declaration 1 annexed to the Lisbon Treaty.

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‘obsession with conferral’ that affected the States during the drafting of the last reform.114 Having established that Articles 7 tfeu and 21(3) teu do not automatically subordinate the concern for coherence to the respect for the principle of conferral, one may wonder how these principles interact with each other in practice. To be sure, one should not interpret conferral by totally disregarding coherence; otherwise, the effect of several Treaty provisions (including Article 21(3) teu) would be compromised. On the other hand, one should not interpret coherence by ignoring conferral, since this would compromise the effect of ­Articles 5(2) and 13(2) teu. It is necessary, therefore, to interpret the Treaties by balancing coherence against conferral of competences and powers. The next paragraphs discuss the way eu institutions and Members have performed this balancing in practice. Balancing Vertical Coherence and Conferral of Competences to the eu The legal effects of coherence extend firstly to the division of competences ­between the Union and its Members. The principle of conferral of competences would seem to draw rather precise lines between the actions of the Union and those of its Members: (i) in the fields where the Union has been conferred an exclusive competence, or has exercised a concurrent one, it has the capacity to act, to the exclusion of any intervention of its Members; (ii) in the areas where the eu has not been conferred an exclusive competence and has not exercised its shared competence, the Member States are – in principle – free to act as they desire; and (iii) in the sectors where the Member States have not attributed a competence to the Union, only the former may operate. Such an apparently clear distinction between European and national policies, however, is at odds with reality. The actions of the Member States may have political impact on the initiatives of the Union, and vice-versa. eu States and institutions – including the Court – have taken these political interconnections into consideration in the interpretation of attributed competences, blurring the distinction between national and European actions, from a legal perspective, too. The procedure for the adoption of restrictive measures is perhaps the clearest case in point. Economic sanctions – or ‘restrictive measures’ – constitute one of the main foreign policy tools of the European Union. Their effectiveness

2

114 The expression is borrowed from Lucia S Rossi, ‘Does the Lisbon Treaty Provide a Clearer Separation of Competences between eu and Member States?’ in Andrea Biondi, Piet Eeckhout and Stefanie Ripley (eds), eu After Lisbon (Oxford University Press 2011), at 93.

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is not always beyond question, but they have been, and still are, used frequently to respond to different types of crises, ranging from terrorism to the violation of human rights. Despite their importance in practice, restrictive measures were not originally regulated in primary law. Hence, since the seventies, Community institutions and Member States were faced with a conundrum. Economic sanctions could be characterised as part of the Member States’ foreign policies, since they pursued a political objective, that is to say changing the behaviour of a third country. However, they could also be seen as commercial measures (­falling within eec exclusive competences), because they were economic in nature.115 From the perspective of the principle of conferral, two solutions were possible: either eec competences were interpreted restrictively, so that the Member States could act, or they were interpreted extensively, so that the Community could intervene. The first solution was initially favoured, but since the eighties an interme­ diate, and pragmatic, two-stage solution prevailed.116 In the first stage, a decision to adopt sanctions was taken by the Member States in the framework of the European Political Cooperation. In the second stage, the Community implemented the Decision of the Member States, by exercising its competence in the field of the trade policy. This solution was effective, in that it ensured the ownership of the process on the part of the Member States while promoting a single course of action for European actors and, thus, coherence in foreign affairs. This pragmatism was not unproblematic: by subordinating the exercise of a Community competence to a decision of their representatives, the Member States may have possibly impinged on the competences of the eec, in ­violation of their duty of loyalty. Nonetheless, it would seem that the p ­ ragmatic ­approach to the division of competences that characterised the adoption of ­restrictive measures was never questioned in practice.117 This suggests that there was ­ample agreement on the opportunity to give a ‘flexible’ interpretation of the 115 See Tanguy de Wilde d’Estmael, ‘L’élaboration du droit des sanctions économiques communautaires: enjeux et normativité politiques du processus’ (2001) 49 Droit et société 729, at 731–732; Criseide Novi, La politica di sicurezza esterna dell’Unione Europea (Cedam 2005), at 280–284. 116 See further Hugo Flavier, La contribution des relations extérieures à la construction de l’ordre constitutionnel de l’Union européenne (Bruylant 2012), at 474–479. 117 On the contrary, the pragmatic approach to the division of competences was codified in primary law. To this day, restrictive measures are adopted through a two-stage procedure, involving a cfsp decision, implemented by a non-cfsp act (Article 215 tfeu).

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Community’s attributions, which was instrumental to the promotion of coherence between the eec’s and the States’ foreign policies. While the case of restrictive measures suggests that the competences of the Community (now Union) may be ‘compressed’ for the purpose of fostering ­coherence, the case-law on the principle of sincere cooperation suggests that the competences of the Member States may also be restrained. The most relevant strands of the case-law, in this ambit, are those concerning external representation, on the one hand, and the relationship between eu law and prior agreements of eu Members, on the other hand. This issue of external representation is problematic, in terms of coherence, since the eu may adopt a position in the areas covered by its competences, while eu Members are theoretically free to determine their external position with respect to any issue that falls within their competences. Since the eu and its Members coexist on the international stage, they may give incoherent messages to other international subjects. This problem is exemplified by the negotiation of mixed agreements. Mixed agreements are, by definition, concluded by the eu and its Members, as one party, and another international subject, as another party.118 Hence, there is the possibility that both the eu and its Members participate in the negotiation with their own representatives – whose positions may not be entirely coherent. To avoid this problem, as the cjeu noted in Ruling 1/78, there should be a close association between the institutions of the Union and the Member States.119 This duty to maintain a ‘close association’ descends from ‘the requirement of unity in the international representation’ of the Union,120 which, in turn, stems from the principle of sincere cooperation (Article 4(3) teu).121 For a long time, at any rate, a crucial issue remained uncertain: how is the ‘unity in the international representation’ to be ­implemented in practice?122 118 Further on mixed agreements, see Joni Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and Its Member States (Martinus Nijhoff 2001); Eleftheria Neframi, Les accords mixtes de la Communauté européenne: aspects communautaires et internationaux (Bruylant 2007); Giorgio Gaja and ­Adelina Adinolfi, Introduzione al diritto dell’Unione europea (Laterza 2013), at 238–240. 119 Ruling 1/78, eu:c:1978:202, paras 34–36. 120 Opinion 1/94, eu:c:1994:384, para 108; see also Opinion 2/91, eu:c:1993:106, para 36; ­Commission v Council, C-25/94, eu:c:1996:114, para 48. 121 Cf. inter alia Federico Casolari, ‘The Principle of Loyal Cooperation: A “Master Key” for eu External Representation?’ in Steven Blockmans and Ramses A Wessel (eds), Principles and Practices of eu External Representation (cleer 2012), at 13. 122 See Joni Heliskoski, ‘Should There Be a New Article on External Relations? Opinion 1/94 “Duty of Cooperation” in the Light of the Constitutive Treaties’ in Martti Koskenniemi and

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The Court clarified the obligations stemming from the requirement of unity in the two Inland Waterways judgements (2005).123 These cases concern the actions of two eu Members, which ratified and implemented bilateral agreements after the Council had authorised the Commission to negotiate eu-level agreements on the same subjects. Such authorisation, according to the Court, marks the start of a concerted eu action at international level and gives rise to a duty of close cooperation between the Member States and the Union institutions.124 This duty implies, in particular, that the Member States must consult the European representative (i.e. the Commission) before entering, in their own capacity, into international agreements whose conclusion may negatively affect concerted Union actions. Such a procedural obligation is not motivated by the need to protect the ­exercise of the eu’s competences. In fact, the Inland Waterways cases concerned the use, by the Member States, of shared competences not exercised by the EU, which – pursuant to Article 2(2) tfeu – are exercised by the Member States themselves. The purpose of the duty of close cooperation, as explicitly recognised by the Court in these cases, is promoting ‘the coherence and consistency of action and […] international representation’ of the Union.125 In the subsequent pfos judgement the cjeu went a step further.126 The case deals with the implementation of a mixed agreement, the Stockholm Convention on Persistent Organic Pollutants. Sweden unilaterally submitted, in 2005, a proposal to list a new substance (perfluoroctane sulfonate, pfos) in an annex to the Convention. Sweden claimed to be competent to submit this proposal, since environmental protection is a shared competence, and the Union had not exercised it in respect of this specific issue. There was, in fact, no

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Joni Heliskoski (eds), International Law Aspects of the European Union (Martinus Nijhoff 1998); Marise Cremona, ‘Defending the Community Interest: The Duties of Cooperation and Compliance’ in Marise Cremona and Bruno de Witte (eds), eu Foreign Relations Law: Constitutional Fundamentals (Hart 2008), at 168. Commission v Luxembourg, C-266/03, eu:c:2005:341; Commission v Germany, C-433/03 eu:c:2005:462. By analogy, see Commission v Ireland, C-459/03, eu:c:2006:345, para 176, where the Court held that, during the implementation of mixed agreements, the ­Member States must ‘inform and consult’ the competent eu institutions prior to undertaking ­initiatives that may lead ‘a judicial forum other than the Court [to] rule on the scope of obligations imposed on the Member States pursuant to Community law’. Commission v Luxembourg (n 123 p 44), para 60. Ibid.; Commission v Germany (n 123 p 44), para 66. Commission v Sweden (pfos), C-246/07, eu:c:2010:203.

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legal act of the Union in this area – not even an authorisation to negotiate on behalf of the eu (as in Inland Waterways). The Court, nonetheless, ­considered that the eu had already adopted a strategy in this ambit, which could be identified by analysing Council conclusions and the work of its preparatory bodies.127 By dissociating itself from this ‘concerted common strategy within the Council’, Sweden had violated Article 10 tec (now Article 4(3) teu).128 pfos extends the Inland Waterways doctrine in two ways. First, it suggests that eu Members are subject to the duty to maintain unity in international representation from the moment the eu develops a political strategy, independently from the legal form that that strategy may take. Second, it makes clear that eu States are subject, not only to a procedural obligation (i.e. consulting the eu negotiator), but to a substantive one, too: they must abstain from acting in way that is detrimental to the eu’s strategy. It has been argued that the legal picture emerging from this case-law ‘does not consider the possible interplay between the loyalty principle and other eu principles – namely the principle of conferred competences’.129 This criticism is partially justified, since the Member States in Inland Waterways and pfos sought to exercise their competences, that is, shared competences not previously exercised by the Union. These judgements, in other words, can hardly be ‘rationalized by competence’.130 However, one may argue that they actually strike a reasonable balance between conferral of competences and coherence. As noted above, eu Member States must enable the Union to act as a cohesive and effective actor on the international stage.131 To be sure, such an obligation does not imply a limitless ‘duty to remain silent’ (which would ­annihilate the effect of Article 5(2) teu).132 Nonetheless, it would seem reasonable that the principle of sincere cooperation, interpreted in light of the ­principle of 127 128 129 130

Id., para 89. Commission v Sweden (pfos) (n 126 p 44), paras 87–102. Casolari, ‘The Principle of Loyal Cooperation’ (n 121 p 43), at 20. Marcus Klamert, The Principle of Loyalty in eu Law (Oxford University Press 2014), at 114, 199. These judgements seem inspired, in fact, by a ‘global approach’ to the Union and the Member States’ external action competences, which goes further that the specific allocation of competences through the principle of conferral. Cf., mutatis mutandis, Eleftheria Neframi, ‘Vertical Division of Competences and the Objectives of the European Union’s External Action’ in Marise Cremona and Anne Thies (eds), The European Court of Justice and External Relations Law: Constitutional Challenges (Hart 2014), at 92. 131 See Chapter 1.ii.4. 132 Cf. Joris Larik and Andrés Delgado Casteleiro, ‘The Duty to Remain Silent: Limitless Loyalty in eu External Relations’ (2011) 36 European Law Review 524.

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coherence, should oblige the Member States to support the Union’s ­strategy ­whenever the latter comes into being (and whatever its form): such an ­obligation is indeed essential to ensure an effective international action of the Union.133 It has also been argued that the approach of the Court appears to suggest ‘a sort of fidelity clause towards eu institutions binding Member States’, while the concept of loyalty set out in eu primary law allegedly implies ‘a full ­mutual respect’ (Article 4(3) teu) between the Member States and the eu institutions.134 To be sure, the Court did not interpret the principle of sincere ­cooperation in a fully ‘symmetric’ way in pfos,135 but its approach seems nonetheless sound. Article 4(3) teu should arguably be interpreted in light of its object and purpose – that is, ensuring coherence and effectiveness in eu decision-making and, in particular, in eu foreign affairs. The Member States decided to set up a Union to reinforce the European identity and its independence (as noted in the preamble of the teu). It would seem logical that they should support the actions of this Union.136 In other words, the eu’s legal order is characterised, in my view, by an in-built preference for unity and coherence,

133 Cf. Anne Thies, ‘General Principles in the Development of eu External Relations Law’ in Marise Cremona and Anne Thies (eds), The European Court of Justice and External Relations Law: Constitutional Challenges (Hart 2014), at 157–158. Van Vooren criticises the pfos judgement, arguing inter alia that the Court did not demonstrate that the eu had actually defined a position, see Van Vooren (n 11 p 11), at 122. Admittedly, identifying a common strategy in the absence of an act that embodies it is not easy. However, it would seem established that, by the time that Sweden made its proposal, the Council’s ‘international environment group’ had reached agreement (i.e. defined a common position) on a proposal to add pfos to the Annex to the Stockholm Convention at a latter stage, that is, ‘once the Commission had submitted a proposal on control measures at Community level’, see Opinion of AG Poiares Maduro in Commission v Sweden (pfos), C-246/07, eu:c:2009:589, para 17; see also Commission v Sweden (pfos) (n 126 p 44), para 89. By presenting its proposal autonomously before the proposal of control measures at Community level, Sweden would seem to have dissociated itself from a concerted common position. 134 Casolari, ‘The Principle of Loyal Cooperation’ (n 121 p 43), at 20 (the emphasis is mine). 135 Apparently, this is the symptom of a more general tendency of the Court to apply the ‘reverse’ duty of cooperation (eu vs Member States) only in ‘specific’ cases, see Klamert (n 130 p 45), at 20. 136 In fact, the very letter of Article 4(3) teu suggests that the loyalty between the Union and its Members is not truly symmetric: the last subparagraph of this provision stipulates that ‘the Member States’ must facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives. I would argue that that is precisely what Sweden failed to do in pfos.

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which may – and indeed should – influence the way the Treaties (including Article 4(3) teu) are interpreted and applied. The coherence-oriented approach that characterises the case-law on ­external representation is not isolated. The Court of Justice has indeed adopted similar views in another strand of its case-law on sincere cooperation, regarding the relationship between eu law and international agreements concluded by Union Members.137 As noted above, the first paragraph of Article 351 tfeu stipulates that eu law should not affect the rights and obligations arising from agreements that the Member States concluded before 1 January 1958 (or before their accession to the eu).138 The second paragraph of this provision, however, introduces a different rule: the Member States must ‘take all appropriate steps’ to eliminate the ‘incompatibilities’ between eu Treaties and the international agreements they concluded before 1 January 1958.139 The Court of Justice has adopted a rather extensive interpretation of this second paragraph. In Commission v Belgium (1999), it held that a Member State must denounce an international agreement if it contains measures contrary to European law, and the denunciation of such an agreement ‘is possible under international law’.140 Ten years later it went a step further, affirming in Commission v Austria and Commission v Sweden that eu countries must open discussions with third parties to eliminate not only actual antinomies, but even the ‘risk’ of conflicts between international agreements and the measures ‘liable to be adopted’ by the eu legislature, notably restrictive measures.141 Hence, the 137 As noted by Koutrakos, the duty of loyal cooperation laid down in Article 4(3) teu is not distinct from the duty imposed on Member States under Article 351 tfeu: the ratio of the second paragraph of the latter provision provides specific illustrations of the general duty laid down in Article 4(3) tfeu, Panos Koutrakos, ‘Case C-205/06, Commission v. Austria, Judgment of the Court (Grand Chamber) of 3 March 2009, Not yet Reported; Case C-249/06, Commission v. Sweden, Judgment of the Court (Grand Chamber) of 3 March 2009, Not yet Reported’. (2010) 46 Common Market Law Review 2059, at 2066. See also Eleftheria Neframi, ‘The Duty of Loyalty; Rethinking Its Scope through Its Application in the Field of eu External Relations’ (2010) 47 Common Market Law Review 323, at 345; Klamert (n 130 p 45), at 16. 138 See Chapter 1.i.1. 139 This second provision appears as a pactum de agendo, which seeks to ‘eliminate the ­inconsistencies’ of the earlier agreements with eu primary law, see Manzini, ‘The Priority of Pre-Existing Treaties’ (n 25 p 18), at 782. 140 Commission v Belgium, C-170/98, eu:c:1999:411, para 42; see also para 15; Commission v Portugal, C-62/98, eu:c:2000:358, para 32. 141 Commission v Austria, C-205/06, eu:c:2009:118, para 42; Commission v Sweden, C-249/06, eu:c:2009:119, para 42. These judgements are often referred to as bits, since they deal with Bilateral Investment Treaties.

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Members States must take steps to eliminate purely ‘hypothetical’ incompatibilities between their international commitments and eu law. It has been argued that the application of Article 351(2) tfeu in case of actual conflicts is understandable, since it protects the autonomy of the eu legal order, but its extension to hypothetical incompatibilities ‘goes much too far’.142 This criticism echoes the concern, expressed in respect of the case-law on external representation, that the Court allegedly does not consider the interplay between the loyalty principle and the principle of conferred competences. It is possible to argue, nonetheless, that the Court’s approach is not arbitrary, since it takes in due account the concern for coherence. If the Member States did not eliminate hypothetical incompatibilities, they would risk jeopardising the effectiveness of the eu’s action. As noted by the Court, in order to ensure the effectiveness of the Treaty provisions on economic sanctions, the measures adopted by the Council should be applied immediately.143 The eu cannot wait until legal antinomies between its law and the international agreements of its Members arise in practice: by that time, coherence is damaged and can hardly be restored.144 In light of these considerations, one may argue that the interpretation of ­Article 351 tfeu adopted by the Court is logical, insofar as it takes into ­account – albeit implicitly – the concern for coherence that should inspire the entire external action. Again, a coherence-inspired reading of the Treaties permits (and arguably requires) eu institutions to overstep the rigid boundaries set by the attribution of competences. 142 Nikolaos Lavranos, ‘Commission v. Austria. Case C-205/06. Judgment; Commission v. ­Sweden. Case C-249/06. Judgment’ (2009) 103 The American Journal of International Law 716, at 720. 143 Commission v Austria (bit) (n 141 p 47), para 36; Commission v Sweden (bit) (n 141 p 47), para 37. 144 See Commission v Austria (bit) (n 141 p 47), para 39; Commission v Sweden (bit) (n 141 p 47), para 40. Lavranos argues that eu Members would have plenty of time to re-negotiate their international agreements, since restrictive measures ‘are normally prepared months before and must pass many political and legislative hurdles’, Lavranos (n 142 p 48), at 720. I am not convinced by this argument, since restrictive measures may be prepared in a few weeks, or even days; see, for instance, the sanctions against Russia, and particularly the sanc­tions that the Council discussed on 22 July 2015 (‘Foreign Affairs Council, 22/07/2014’, accessed 19 December 2015), and which were agreed upon on 29 July 2015 (‘eu restrictive measures in view of the situation in Eastern Ukraine and the illegal annexation of Crimea’, accessed 19 December 2015).

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Balancing Horizontal Coherence and Conferral of Powers to eu Organs 3.1 Subordination of Horizontal Coherence to Delimitation of Powers? The principle of coherence may have legal effects, not only in regard to the (vertical) delimitation of the competences of the Union, but also with respect to the (horizontal) delimitation of the powers of eu organs. In principle, the institutions and bodies of the Union should exercise only  the  powers they are explicitly conferred, ex Article 13 teu. A rigid delimitation of their sphere of action, however, may lead to the conduct of ­divergent ­policies. Although each policy has specific procedures, and is characterised by a different form of involvement of eu organs, different activities may pursue the same goals.145 The Court may seem to have disregarded, in part of its case-law, the concern for coherence in eu foreign affairs, by giving more relevance to the division of powers among eu organs; this part of the practice is discussed in the present paragraph. The next paragraph, however, shows that there is another part of the practice that goes in the opposite direction. The Court of Justice has favoured delimitation over coherence, in particular, in part of its case-law regarding the boundaries of Community and intergovernmental spheres. In pnr (2006),146 the Court annulled a Commission decision regarding the transfer of Passenger Name Record (pnr) data to the us. According to the Court, the transfer of such data to another country constitutes processing operations concerning public security and the activities of the State in areas of criminal law. Since cooperation in criminal law was not a Community competence (but a competence of the eu), the Commission could not adopt a decision in that area. One may surmise that the considerations regarding cooperation in criminal matters may be extended to the other main competence of the eu (pre-Lisbon), i.e. the cfsp: the Commission arguably could not adopt decisions regarding activities of the States in areas of foreign policy. 3

145 For instance, the combating of terrorism is among the objectives of the area of freedom, security and justice; yet, the objective of combating international terrorism and its ­financing corresponds to the objectives of the cfsp, too, see Parliament v Council, C-130/10, eu:c:2012:472, paras 61–63. 146 Parliament v Council and Commission (pnr), C-317/04, eu:c:2006:346, paras 55–57. See also Vagelis Papakonstantinou and Paul De Hert, ‘The pnr Agreement and Transatlantic Anti-Terrorism Cooperation: No Firm Human Rights Framework on Either Side of the Atlantic’ (2009) 46 Common Market Law Review 883, at 891.

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The Court of Justice reached a similar conclusion in Philippines Border Management (2007).147 The Court annulled a Commission decision adopted on the basis of a Community regulation regarding development cooperation with countries in Asia and Latin America. The Commission Decision ­financed the strengthening of the administrative capacities of the Philippines’ ­authorities responsible for border management, in order to fight terrorism and ­international crime. According to the Court, there was nothing in the contested decision to indicate how its objective could contribute effectively to ­making the environment more conducive to ‘economic development’.148 Since the contested decision meant to foster a cfsp objective – i.e. the fight against terrorism149 – it would seem that it should have been adopted on the basis of a cfsp provision.150 The Court appears to have adopted an even more rigid approach to the delimitation of the cfsp (vis-à-vis the Community competences), on the basis of the already-cited Article 47 teu (now Article 40 teu). The most important judgement in this ambit is Ecowas. In this case, the Court annulled a cfsp decision of the Council, whereby the institution had provided for a contribution to the Economic Community of West African States (Ecowas) in the framework of the Moratorium on Small Arms. The Court accepted that the fight against the proliferation of small arms has a dual character, that is, preservation of peace and international security (a cfsp issue), on the one hand, and safeguarding development priorities (a non-cfsp matter), on the other hand.151 ­According to the established case-law of the Court of Justice, when an act pursues two objectives, neither of which is incidental to the other, it should be founded on the legal bases corresponding to both objectives.152 However, according to the Court, such a solution was not possible in Ecowas, since ‘Article 47 eu precludes the Union from adopting, on the basis of the eu Treaty, a measure which could properly be adopted on the basis of the ec Treaty’.153 This suggests 147 Parliament v Commission, C-403/05, eu:c:2007:624. 148 Id., para 67. 149 Cf. Parliament v Council, C-130/10 (n 145 p 49), para 64. 150 It is true, as noted by Koutrakos, that this dispute was not about ‘the linkages between security and development policies, but the exercise of implementing powers by the Commission’, see Panos Koutrakos, The eu Common Security and Defence Policy (Oxford ­University Press 2013), at 246. The judgement, at any rate, is relevant for the distinction between the pillars, too: it shows that the contested measure pursued a non-ec (i.e. a cfsp) objective (such as the fight against terrorism). 151 Cf. Commission v Council (Ecowas), C-91/05, eu:c:2008:288, paras 85–91. 152 Id., paras 96–99. 153 Id., para 77.

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that a ‘cross-pillar’ measure, affecting both cfsp and non-cfsp areas, should be based solely on non-cfsp competences.154 It is possible that, after the entry into force of the Lisbon Treaty, the new ­formulation of Article 40 teu may render the Ecowas case-law obsolete.155 In any event, a discussion of the consequences of the reformulation of Article 47 into Article 40 teu may be unnecessary, since, pursuant to an established caselaw, profoundly different procedures cannot be merged. It would seem that cfsp and non-cfsp procedures, in particular, cannot be cumulated; therefore, the adoption of ‘hybrid’ cfsp/non-cfsp acts may encounter serious obstacles.156 Be that as it may, what matters from the present perspective is that the 154 Hence, the eu elements of the ec/eu measure had to be assimilated to the Community elements, or adopted as a separate eu act; see Christophe Hillion and Ramses A Wessel, ‘Competence Distribution in eu External Relations after Ecowas: Clarification or ­Continued Fuzziness?’ (2009) 46 Common Market Law Review 551, at 574–575. In fact, the interpretation of Article 47 teu adopted by the Court in Ecowas would seem to be inspired by a relatively strong concern for the protection of Community competences, see Emanuela Pistoia, ‘Fino a dove si può spingere il diritto comunitario nell’ambito dell’Unione. Un commento alla sentenza ecowas alla luce dei precedenti’ (2009) 4 Studi sull’integrazione europea 481, at 494–495. 155 Cf. Cremona, ‘Coherence in eu Foreign Relations Law’ (n 81 p 32), at 88; Van Vooren (n 11 p 11), at 173; Piet Eeckhout, ‘The eu’s Common Foreign and Security Policy after Lisbon: From ­Pillar Talk to Constitutionalism’ in Andrea Biondi, Piet Eeckhout and Stefanie Ripley (eds), eu Law after Lisbon (Oxford University Press 2012), at 272–273; Koutrakos, The eu Common Security and Defence Policy (n 150 p 50), at 236; Annegret Engel, ‘Delimiting Competences in the eu: cfsp Versus afsj Legal Bases’ (2015) 21 European Public Law 47, at 52–53; M Eugenia Bartoloni, ‘Sulla partecipazione del Parlamento europeo alla formazione di accordi in materia di politica estera e sicurezza comune’ (2012) 95 Rivista di diritto internazionale 796, at 798–800; Luca Paladini, ‘I conflitti tra i pilastri dell’Unione europea e le prospettive del Trattato di Lisbona’ (2010) Il diritto dell’Unione europea 87, at 104. Yet, one can hardly reach definitive conclusions, since the cjeu carefully avoided discussing this issue in its recent case-law, cf. Andrea Ott, ‘The Legal Bases for International ­Agreements Post-Lisbon: Of Pirates and The Philippines’ (2014) Maastricht Journal of European and Comparative Law 739, at 751. See also Alessandra Lang, ‘Gli atti della pesc’ in Alessandra Lang and Paola Mariani (eds), La politica estera dell’Unione europea: inquadramento ­giuridico e prassi applicativa (Giappichelli 2014), at 42 ff. 156 See Parliament v Council, C-130/10, (n 145 p 49), para 47; see also Commission v Council, C-300/89, eu:c:1991:244. One may note that international agreements constitute an ­exception to this rule: ‘cross-Treaty’ cfsp/non-cfsp agreements seem to be possible, see Adam (n 16 p 4), at 78–81; Peter Van Elsuwege, ‘The Legal Framework of eu-Russia Relations: Quo Vadis?’ in Inge Govaere and others (eds), The European Union in the World: Essays in Honour of Marc Maresceau (Brill | Nijhoff 2014), at 448; Guillaume Van der Loo, The eu-Ukraine Association Agreement and Deep and Comprehensive Free Trade Area: A New

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Ecowas case-law suggests that the Court favours a formalistic approach to the delimitation of ec competences, which seeks to establish a rigid barrier between ec and cfsp actions – to the detriment of the latter, and of coherence at large. The boundary between the cfsp and the rest of the external action, at any rate, is not necessarily as rigid as a superficial assessment of this case-law may suggest. The judgements discussed above do not appear to lead, in fact, to any definitive conclusion. This can be understood by comparing the conclusions reached in Philippines Border Management and in Ecowas. The cases are similar, because they both concern the delimitation of the eu’s development cooperation vis-à-vis security policy. As noted in the European C ­ onsensus on D ­ evelopment, these policies are linked since ‘there can be no sustainable development and eradication of poverty without peace and security’.157 The Court cited this passage in both judgements,158 but reached two conclusions that seem to be at odds. In Philippines Border Management, it held that a measure that supported the national institutions of developing countries, but which fostered the fight against terrorism (which is a cfsp objective), could not be based on an ec (non-cfsp) competence. In Ecowas, it found that a measure that supports a development country and pursues a cfsp objective, such as the fight against the proliferation of small arms, had to be adopted on a non-cfsp basis. It would not seem possible to formulate a comprehensive theory which makes sense of the Court’s case-law. It is perhaps more appropriate to take note of the existence of divergent practices: whereas in some cases – described above – the Court has favoured a rigid distinction between the powers of eu organs, in others it has been more open to the interaction of the different ­external action areas.159 Incidentally, one may note that the Court’s case-law Legal Instrument for eu Integration Without Membership, Studies in eu External Relations (Brill | Nijhoff 2015), at 166; Chiara Cellerino, Soggettività internazionale e azione esterna dell’Unione europea (Aracne 2015), at 280–282; Mauro Gatti and Pietro Manzini, ‘External Representation of the European Union in the Conclusion of International Agreements’ (2012) 49 Common Market Law Review 1703, at 1720–1723. 157 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, entitled ‘The European Consensus’, oj 2006 C 46/1. 158 Parliament v Commission, C-403/05, eu:c:2007:624, para 57; Commission v Council (­Ecowas) (n 151 p 50), para 66. 159 Cf. Hillion, Cohérence et action extérieure (n 82 p 32), at 4: ‘Dans certains cas, la Cour s’est appuyée sur l’argument de la cohérence pour étayer une position favorable à l’affermissement

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should not be the only reference for a study of the effects of coherence. EU foreign affairs law (as the foreign affairs law of most international subjects) is implemented mostly by political bodies. The extra-judicial practice may thus give relevant indications as to the meaning that coherence has acquired in eu foreign affairs. The wider assessment of the practice provided for in the next paragraph suggests indeed that the concern for coherence has often been balanced against the delimitation of eu organs’ powers. 3.2 Influence of Coherence on the Interpretation of Conferred Powers The practice of political and judicial organs suggests that coherence has had, in several occasions, an effect on the interpretation of conferred powers, to the extent that it has served as a justification for a rather ‘flexible’ separation between the policies of the Union.160 One of the clearest examples in this sense probably is found in the practice relating to the ‘strategies’ of the European Council. Before the Lisbon ­reform, according to Article 13(2) teu, this body was responsible for the adoption of ‘common strategies to be implemented by the Union in areas where the Member States have important interests in common’. Article 13(2) teu was part of the cfsp Title of the teu; consequently, ‘common strategies’ were cfsp acts. If the powers of ec institutions had been perfectly protected, the strategies should have addressed only cfsp issues. On the contrary, common strategies were used as a tool to orient the entire external action. They explicitly set cross-pillar finalities and objectives, and foresaw the use of both ec and eu instruments.161 The flexible interpretation of conferred powers adopted by the European Council was so widely accepted that it led to a modification of primary law. Current Article 22 teu indeed stipulates that the decisions of the European Council on the strategic interests and objectives of the Union relate ‘to the common foreign and security policy and to other areas of the external action of the Union’. des compétences de l’Union. […] Dans d’autres cas en revanche, les règles de délimitation et l’exigence de cohérence semblent se télescoper’. 160 In other words, it would seem that eu institutions have sometimes adopted a functional, dynamic and co-operative approach to the relation between the cfsp and the rest of the external action, cf. Roberto Baratta, ‘Overlaps between European Community Competences and European Union Foreign Policy Activity’ in Enzo Cannizaro (ed), The ­European Union as an Actor in International Relations (Kluwer Law International 2002), at 68. 161 See Christophe Hillion, ‘Common Strategies and the Interface between ec External ­Relations and cfsp’ in Alan Dashwood and Christophe Hillion (eds), The General Law of ec External Relations (Sweet & Maxwell 2000).

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Despite their relevance, from a theoretical perspective, common strategies were seldom used in practice: only three such strategies were adopted in  practice.162 The ‘flexible’ approach to the interpretation of eu bodies’ ­powers, at any rate, is confirmed by other instruments adopted by the ec and by the eu. On the one hand, ec bodies adopted acts that came close to encroaching on the cfsp field.163 This was the case of several acts in the field of trade, such as Regulation 2036/2005/ec,164 which was meant to restrict the commerce of tools which could be used to give the death penalty (arguably, a cfsp objective).165 Other Community actions had an even stronger link to the cfsp. This is the case of the Rapid Reaction Mechanism, and its successors: the ­Instrument for Stability (applied between 2006 and 2014) and the Instrument contributing to Stability and Peace (adopted in 2014).166 These instruments are intended to underpin ec/eu policies and programmes, and enable the Community/Union to take urgent action to help re-establish or safeguard normal conditions for the execution of development cooperation. Therefore they have a close link to the cfsp: they indeed foresee the financing of ‘political’ operations, such as the support for international criminal tribunals and the destruction of landmines.167 It is not surprising, therefore, that the Instrument

162 Common Strategy of the European Union 1999/414/cfsp on Russia, oj 1999 L 157/1; ­European Council Common Strategy 1999/877/cfsp on Ukraine, oj 1999 L 331/1; Common Strategy of the European Council 2000/458/cfsp on the Mediterranean region, oj 2000 L 183/5. 163 For a broader assessment of this issue, see Cannizzaro, ‘Unity and Pluralism in the eu’s Foreign Relations Power’ (n 44 p 21), at 222–226; Gauttier (n 77 p 31); Ramses A Wessel, ‘The Inside Looking Out: Consistency and Delimitation in eu External Relations’ (2000) 37 Common Market Law Review 1135. 164 oj 2005 L 200/1. 165 Similarly, Regulation 2368/2002/ec, relating to the Kimberley process, concerned the ­import of goods (diamonds), but was ultimately meant to improve security in Sierra Leone. In light of Opinion 1/78, and its extensive definition of the Community’s trade policy, one may perhaps argue that these acts were probably rightly founded on the tec, see Opinion 1/78, eu:c:1979:224, paras 47–49. Nonetheless, it would seem that they did interfere, at least to a certain extent, with the cfsp. 166 Council Regulation 381/2001/ec, oj 2001 L 57/5; Parliament and Council Regulation 1717/2006/ec, oj 2006 L 327/1; Parliament and Council Regulation 230/2014/eu, oj 2014 L 77/1. 167 Regulation 1717/2006/ec (n 166 supra), Article 3(2); Regulation 230/2014/eu (n 166 supra), Article 3(2) (i).

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contributing to Stability and Peace, like its predecessors, seeks to ‘increase the efficiency and coherence of the Union’s actions’.168 On the other hand, some cfsp acts came close to encroaching upon ec activities and the powers of Community bodies. The Council sometimes invited the Commission, through a cfsp act, to orient its action towards the realisation of cfsp objectives.169 In other cases, the Council adopted cfsp acts that directly regulated issues that were probably related to the non-cfsp area, in fields such as nuclear safety, humanitarian aid, development cooperation, ­economic cooperation, and international trade.170 This extensive understanding of the scope of application of the cfsp raised some political concerns. In order to ease the tension, the Council and the Commission adopted a soft law instrument, called mode d’emploi, regulating the superposition of Community and intergovernmental policies in external relations.171 The mode d’emploi had only partial effect, since some cfsp acts adopted at a latter stage seemed not to have been entirely respectful of ec competences.172 168 Regulation 230/2014/eu (n 166 p 54), preamble, recital 11. More precisely, the Rapid Reaction Mechanism sought to contribute to ‘the coherence of the external activities conducted by the European Union’ (Regulation 381/2001/ec (n 166 p 54), preamble), while the Instrument for Stability Regulation explicitly required the instrument to be ‘consistent’ with the cfsp (Regulation 1717/2006/ec (n 166 p 54), Article 1(3)). These ec acts are possibly legitimate, in light of Commission v Council (Ecowas) (n 151 p 50). It is significant, at any rate, that at the time of their adoption (2001 and 2006), ec institutions already considered that the scope of Communitarian competences partially covered security-related fields close to the cfsp. One may argue that ec bodies adopted a ‘flexible’ interpretation of the delimitation of the cfsp, which was subsequently approved by the Court – albeit indirectly – in the Ecowas judgement. 169 See, e.g., Council Decision 94/367/cfsp, oj 1994 L 165/2, Article 3. 170 For instance, Joint Action 96/195/cfsp, concerning the participation of the European Union in the Korean Peninsula Energy Development Organization, arguably encroached upon the exercise of Euratom competences. Although this Joint Action was meant to ­address a typical cfsp objective (‘contribute to an overall solution to the issue of ­nuclear proliferation in the Korean peninsula’) it had primarily a Euratom object (cooperation with third countries in the field of civil nuclear energy). See also Common Position 94/779/cfsp, oj 1994 L 313/1. Cf. Gauttier (n 77 p 31), at 28 ff.; Wessel (n 163 p 54), at 1154 ff.; Mignolli (n 3 p 13), at 391 ff. 171 According to the mode d’emploi, ‘[cfsp] Common positions […] shall preserve at all ­stages each institution’s competences, the procedures through which such competences are exercised, and the rules established for adopting decisions under different Treaty provisions’. See Council doc. 5194/95. 172 See inter alia Common Position 95/413/cfsp, oj 2000 L 245/1, point C. Nonetheless, the mode d’emploi may have favoured the transition towards a ‘softer’ cfsp influence on the rest of the external action. If in the early nineties cfsp acts sometimes contained a

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The very Court of Justice has accepted that cfsp and non-cfsp may be linked, when it interpreted the Treaty provisions that concern restrictive measures. The Maastricht Treaty institutionalised the European Political Cooperation (in which the procedure for adoption of restrictive measures was created)173 into the cfsp, transforming a framework for international cooperation into a policy of the eu (albeit a sui generis one). After the creation of the cfsp, the problem raised by restrictive measures was no longer one of ‘vertical’ coherence, but rather one of cfsp/ec synergy, that is, ‘horizontal’ coherence. There was indeed a need to link trade initiatives – the restriction of commerce with a country – with political actions (the action of punishing another international subject). The Member States solved this problem by introducing Article 228A tec, later Article 301 tec (now Article 215 tfeu),174 according to which, when a Union (cfsp) act provided ‘for an action by the Community to interrupt or to reduce, in part or completely, economic relations with one or more third countries’, the Council was required to take the necessary ‘restrictive measures’ by qualified majority.175 This provision made it clear that a connection between cfsp and non-cfsp measures was acceptable. The clarification, however, was incomplete, since Article 301 tec did not explicitly contemplate the possibility to adopt restrictive measures against individuals not connected to a specific government.176 Could such measures be adopted on the basis of the ‘flexibility clause’ (Article

173 174 175

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rather peremptory language, after the adoption of the mode d’emploi cfsp instruments tended to take note of Community actions and to make generic references to the requirement of external action consistency/coherence; see, e.g., Common Action 2000/298/cfsp, oj 2000 L 97/4, Article 2(2). See also Gauttier (n 77 p 31), at 29; Wessel (n 163 p 54), at 1155. For further on restrictive measures see Chapter 1.iii.2. See further M Eugenia Bartoloni, Politica estera e azione esterna dell’Unione europea (­Editoriale scientifica 2012), at 38 ff. This procedure was maintained by the Lisbon Treaty, in Article 215 tfeu. It is understood that, given the elimination of the pillar structure, restrictive measures are no longer ­adopted through an eu/ec procedure, but through a cfsp/non-cfsp one. There are four main differences between Article 215 tfeu and previous Article 301 tec. First, restrictive measures in the non-cfsp area are no longer proposed by the Commission individually, but are put forward by the Commission and the High Representative. Second, the ep must be informed about the adoption of these measures. Third, Article 215 tfeu allows for the adoption of restrictive measures against natural or legal persons (other than States). Fourth, restrictive measures are now required to ‘include necessary provisions on legal safeguards’. The Lisbon reform filled this gap, to the extent that Article 215 tfeu explicitly allows the Council to adopt restrictive measures ‘against natural or legal persons and groups or ­non-State entities’.

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308 tec)?177 Using Article 308 tec for the adoption of sanctions posed a difficulty, since this provision could be employed to attain ‘one of the objectives of the Community’; yet, the objective of the restrictive measures did not pertain to the Community field, but was actually ‘political’, and belonged to the cfsp. The interpretation of Article 308 tec was one of the issues discussed in the Kadi saga. Both the Court of First Instance and, later, the Court, framed the ­issue in terms of external action coherence, by noting that the cfsp/non-cfsp procedure contained in Article 301 tec constituted ‘a bridge’ between the actions of the Community and the objectives of the eu Treaty, ‘including the cfsp’.178 The Court of First Instance understood coherence in a particularly broad way. It acknowledged that adopting sanctions against an individual pursues a cfsp objective. Nonetheless, the flexibility clause could be used to pursue a cfsp objective ‘for the sake of the requirement of consistency laid down in Article 3’.179 The Court of Justice may seem, at first sight, to have adopted a more rigid approach, since it argued that ‘neither the wording of the provisions of the ec Treaty nor the structure of the latter provides any foundation’ for the view that the flexibility clause can be used to pursue cfsp objectives.180 Nonetheless, the Court accepted that Article 308 tec could be a basis for sanctions against individuals, since it considered that ‘making it possible to adopt [restrictive] measures through the efficient use of a Community instrument’181 was in itself ‘an objective of the Community for the purpose of Article 308 ec’.182 In other words, Article 308 could not be used to pursue cfsp objectives, but it could be used to pursue a ‘Community’ objective, which consisted in…adopting an ec act that pursued a cfsp objective. In summary, eu institutions have often adopted a pragmatic understanding of the separation of powers, for the purpose of promoting a coherent ­external 177 As is well known, this provision (now largely reproduced in Article 352 tfue) allowed the Council to adopt, by unanimity, ‘appropriate measures’ on matters not falling within ec competences, as long as such decision proved necessary to attain, in the course of the operation of the common market, one of the objectives of the Community. 178 Kadi and Al Barakaat International Foundation v Council and Commission, C-402/05 P and C-415/05 P, eu:c:2008:461, para 197. See also Yusuf and Al Barakaat v Council and C ­ ommission, T-306/01, eu:t:2005:331, paras 159–160. In this sense, see also Parliament v Council, C-130/10 (n 145 p 49). 179 Yusuf and Al Barakaat v Council and Commission, T-306/01, eu:t:2005:331, paras 161–164. 180 Cf. Hillion, Cohérence et action extérieure (n 82 p 32), at 4. 181 Kadi and Al Barakaat International Foundation v Council and Commission, C-402/05 P and C-415/05 P, eu:c:2008:461, para 226. 182 Id., para 227.

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action. It would seem, therefore, that horizontal coherence produces some ­legal effects: it has been balanced against the concern for delimitation of eu bodies’ attribution, thus allowing for a ‘flexible’ allocation of powers183 and for the creation of ‘exchanges’ between the different normative contexts of eu pillars.184 The fact that a part of the practice – described in the previous ­paragraph – goes in the opposite direction does not contradict this finding, but qualifies it. The process towards the ‘juridification’ of coherence, especially in respect of its horizontal dimension, is incomplete (this does not mean, at any rate, that it is non-existent). The question regarding the legal effects of coherence is interwoven with the one relating to its implementation. Despite its characterisation as a legal principle, coherence cannot be easily enforced. The concern for coherence may – and indeed should – inspire the judicial interpretation of other norms of the eu legal order, notably the principle of conferral. Such an interpretation, however, may contribute to synergy only in an indirect manner, i.e. by enabling political institutions to use flexible procedures. If political institutions did not intend to create a linkage between policy areas, and conducted separate ­actions, the Court of Justice would not be able to enforce coherence on its own: to ensure ‘synergy’, one should take decisions regarding the content of the different policies. The eu’s judiciary is not well placed to do so, since it cannot substitute its own assessment of what is appropriate for that of political institutions, and cannot conduct policy-making activities on its own.185 There are, at any rate, other non-judicial means through which eu institutions may foster coherence, notably the coordination of different decision-makers. They are investigated in the next chapter.

183 This kind of balancing does not seem very dissimilar from the balancing that, according to Cannizzaro, the Court of Justice used in some occasions to solve conflicts between economic and non-economic policies, see Enzo Cannizzaro, ‘Tecniche di soluzione dei conflitti fra politiche dell’Unione: liberismo e solidarismo nel processo di integrazione europea’ (2013) Il diritto dell’Unione europea 689. 184 The expression is borrowed from Novi (n 115 p 42), at 306. 185 See People’s Mojahedin Organization of Iran v Council, T-256/07, eu:t:2008:461, para 138; see also, by analogy, Spain v Commission, C-525/04 P, eu:c:2007:698, para 57; dsg Dradenauer Stahlgesellschaft mbH v Commission, C-323/00 P, eu:c:2002:260, para 43. Cf. Enzo Cannizzaro and M Eugenia Bartoloni, ‘Unitarietà e frammentazione nel sistema dell’azione esterna dell’Unione’ (2013) Il diritto dell’Unione europea 531, at 536.

chapter 2

Implementation of the Principle of Coherence: On the Need for a Coordinator How may the eu ensure external action coherence in practice? And why does it need the eeas to do so? This chapter seeks to answer these questions, by discussing different solutions through which coherence may be attained, and focussing on the one that is likely to be most effective: coordination. The division of competences and powers among different authorities means that coherence can hardly be attained by centralising the management of foreign affairs, or simply by implementing cooperation between ­decision-makers (Section i). To achieve coherence, the eu should arguably set up a c­ oordinator – that is, a body that steers the conduct of other decision-makers to promote convergent policies, but whose action does not impinge on the distribution of powers set in the eu Treaties (Section ii). ‘Political organs’, i.e. eu institutions and the High Representative, do not seem well-positioned to ­coordinate external relations (Section iii). An administration – the European External Action Service – appears prima facie to be more capable of functioning as a coordinator (Section iv). The second and third parts of this book will verify whether this is actually the case. i

Challenges for the Implementation of External Action Coherence

The most obvious solution to implement coherence lies in the centralisation of power within a single body. While States tend to centralise the governance of foreign affairs, this solution is constitutionally impossible for the Union1 (1). In this context, one may hypothesise that coherence may be implemented through cooperation between the main eu decision-makers. However, cooperation is not easy to enforce in practice (2). 1 Impossibility to Centralise Power in eu Foreign Affairs Sovereign States have been developing solutions to foster coherence since time immemorial. It would be impossible to provide for a comprehensive account of the policies adopted by any State in any moment. For the purpose of this 1 Flavier (n 116 p 42), at 316.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004323612_005

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analysis, it suffices to identify the general tendency that characterises the institutional governance of foreign affairs in States, that is, centralisation.2 The first relevant dimension of centralisation is the vertical one. In federal or semi-federal States, the coexistence between different levels of government might potentially lead to the conduct of irreconcilable external actions.3 The States’ legal orders usually address this problem by entrusting exclusive foreign policy competences to the central (i.e. national) government. In the us, for instance, the Supreme Court has made clear that state and local authorities cannot disrupt the national foreign policy strategy.4 Other federal countries are characterised by similar arrangements. The Brazilian Constitution, for example, gives the federation the power to maintain relations with foreign states, and participate in international organisations.5 The vertical centralisation of the foreign policy power is acknowledged by international law. In general terms, only the (central) State is a subject in the international legal order and is responsible for the violation of international rules on the part of either national or regional organs.6 Besides the vertical centralisation there is also the horizontal one. Since ­international relations may potentially concern any issue, different governmental authorities are involved in foreign policy making. For instance, the ministers responsible for internal policies (such as home affairs or healthcare) may represent their States internationally, by conducting bilateral negotiations 2 See further Flavier (n 116 p 42), at 315–348; Cannizzaro, ‘Unity and Pluralism in the eu’s Foreign Relations Power’ (n 44 p 21), at 195–201. 3 For instance, the us state of Massachusetts adopted economic sanctions against Myanmar in 1996, whereby it barred state entities from buying goods or services from companies d­ oing business with that country. The policy of Massachusetts was at odds with the foreign affairs strategy of the us, since its scope was wider and it had no time limit; therefore, it restricted the capability of federal authorities to manage external relations; see the judgement of the us Supreme Court, Crosby v. National Foreign Trade Council, 530 us 363 (2000). See also Robert B Ahdieh, ‘Foreign Affairs, International Law, and the New Federalism: Lessons from ­Coordination’ (2008) 73 Missouri Law Review 1185, at 1193. 4 See us Supreme Court, Crosby v. National Foreign Trade Council (n 3 supra) and Ahdieh (n 3 p 60). 5 Articles 21 and 22. 6 Cf. Article 4(1) of the Draft Articles on Responsibility of States for Internationally Wrongful Acts: ‘The conduct of any State organ shall be considered an act of that State under international law […] whatever its character as an organ of the central Government or of a ­territorial unit of the State’, see annex to General Assembly resolution 56/83 of 12 December 2001. See also the Commentary to the Draft Articles, at 41. Cf. International Court of Justice, LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, icj Reports 1999, p. 9, at p. 16, para 28.

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with other governments, or in the framework of international organisations or summits. Since this plurality may question the cohesiveness of national foreign policies, States have developed institutional solutions to ensure unity.7 Three governmental authorities, in particular, should ensure the conduct of coherent external relations: the government, the head of government and, above all, the minister of foreign affairs. As noted by the International Court of Justice, the foreign minister has a particular responsibility for the conduct of the whole of his/her States’ relations with other States and is ‘in charge of his or her Government’s diplomatic activities’.8 International law recognises the specific position of foreign ministers. The Vienna Convention on the Law of the Treaties (1969)9 stipulates that (differently from most other authorities) the foreign minister is considered as representing his/her State without having to produce full powers for the purpose of performing all acts relating to the conclusion of a treaty.10 The crucial character of the foreign minister’s tasks is testified by the law on immunity as well. In the performance of his/her functions, the foreign minister is frequently required to travel internationally and should be in a position to do so freely whenever the need should arise. Consequently he/she, when abroad, is customarily granted ‘full immunity from criminal jurisdiction and inviolability’.11 The centralisation of the control over foreign affairs is increasingly questioned, because of the process of globalisation, and the consequent growth of international links between authorities in different fields and at different levels. Even States may be forced to ensure the coherence of their foreign relations through mechanisms other than centralisation, notably cooperation and coordination.12 This problem, at any rate, should not be overemphasised. All central (national) governments seem to remain in control of the diplomacies 7

8 9 10 11 12

For instance, in France the first attempt at entrusting the management of the relations with all other States on a single person dates back to the late xvi century, see Amédée Outrey, ‘Histoire et principes de l’administration française des Affaires Etrangères (i)’ (1953) 3 Revue française de science politique 298, at 302–304. International Court of Justice, Arrest Warrant of 11 April 2000 (Democratic Republic of ­Congo v. Belgium) icj Reports 2002, para 53. Vienna Convention 1969 (n 61 p 27). Ibid., Article 7(2). International Court of Justice, Arrest Warrant of 11 April 2000 (n 8 supra), para 54. This is the case, in particular, of eu Members, which are represented by several organs within European institutions. On the problems raised by this plurality, and the solutions implemented to solve them, see Sabrina Ragone, ‘La coordinacion gubernamental de las politicas europeas. Un analisis de derecho comparado sobre los Membros fundadores’ (2014) 62 Estudios de Deusto 213.

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and armies of their States, and tend to be exclusively competent to enter into international agreements and to represent their countries in international organisations. Foreign ministers, moreover, appear to maintain pre-eminence over other organs in the conduct of external relations, to the extent that the position of foreign minister is generally acknowledged as one of great power and prestige. This situation stands in contrast to the reality in the eu, where the fragmentation of foreign affairs runs much deeper. Given the eu’s penchant for mimicking the institutions and regulatory ­solutions of sovereign States, one may perhaps hypothesise that the Union might seek to ensure coherence as States do, that is, by centralising the management of foreign policy. However, this course of action is hindered by the principles that are at the core of the eu legal order. The enforcement of vertical coherence finds an obstacle in the attribution of limited competences to the eu. The Union has been entrusted with some exclusive external action competences, notably trade.13 The progressive exercise of concurrent competences and the case-law on external competences – now codified in Article 3(2) tfeu – further increases the scope for the eu’s exclusive intervention in the field of foreign affairs.14 Notwithstanding the coherence-making potential of the eu’s exclusive competences, they cannot serve to fully ensure synergy in practice. There are several areas covered by non-­exercised concurrent competences, which the Member States can regulate autonomously. What is more, some of the concurrent external action ­competences of the Union cannot bring about any pre-emption effect (that is the case, in particular, of development cooperation and of humanitarian aid).15 Similar considerations are applicable, a fortiori, to the Common Foreign and Security Policy: the Member States must support the eu’s action and must respect cfsp Decisions,16 but are bound only by existing initiatives. If the eu fails to reach a decision, the Member States remain free to conduct their policy.17 As vertical centralisation of foreign policy management is restrained by conferral of competences to the Union, so is horizontal centralisation ­hampered by the attribution of limited powers to eu organs. In the Union, 13

14 15 16 17

In this field, only the Union may legislate and adopt legally binding acts, while the ­ ember States are able to do so only if so empowered by the Union or for the implemenM tation of Union acts (Article 2(1) tfeu). See the erta judgement and the following case-law (n 63 p 28). See Article 4(4) tfeu. See Articles 24(3), 28(1) and 29 teu. Cf. Declarations 13 and 14 annexed to the Lisbon Treaty.

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there is no ­office such as a foreign minister, because the powers relating to the management of external relations are fragmented among different bodies. The European Commission may be described as the main executive organ of the Union,18 but cannot ensure ‘a stronger Europe’ when it comes to foreign policy, security, and defence matters.19 In these areas, the institution plays a limited role, since the powers of initiative, decision-making, and policy implementation are e­ ntrusted to other organs (notably the Council and the High Representative). A stronger centralisation of foreign affairs management in the near future is not very probable. The already cited Article 40 teu explicitly stipulates that the implementation of the cfsp should not affect non-cfsp actions, and vice-versa. Although a rather ‘flexible’ interpretation of this provision may be envisaged, and is sometimes favoured in practice, the institutional divide between the two sides of the external actions cannot be disregarded entirely.20 Unless the Member States were to radically alter the structure of the external action, by ‘Communitarising’ the cfsp (a possibility that appears very remote at present), the dichotomy of the external action would continue indefinitely. 2 Difficulties in the Enforcement of Sincere Cooperation Since centralisation of foreign policy management in the eu is not possible at present – or in the foreseeable future – some alternatives must be explored. The most obvious solution lies in the cooperation between foreign policy makers. If eu bodies and the Member States work together (‘co-operate’), supporting each other’s actions, coherence may become attainable.21 The duty of cooperation is indeed one of the core principles of eu law.22 Vertical cooperation – between the Union and its Members – may be described

18

19

20 21 22

The Commission has indeed the power of policy implementation, external representation and initiative in almost all non-cfsp areas. There are, of course, numerous other organs that are ‘“squatted” with executive functions’, as noted by Deirdre Curtin, Executive Power of the European Union: Law, Practices, and the Living Constitution (Oxford University Press 2009), at 28. Jean-Claude Juncker, A New Start for Europe: My Agenda for Jobs, Growth, Fairness and Democratic Change: Political Guidelines for the next European Commission (2014) accessed 19 December 2015. See Chapter 1.III.1 and 1.III.3. In other words, coherence can be achieved ‘through sincere cooperation between all the actors involved’, at least in principle, see De Baere and Wessel (n 15 p 4). Flavier, for instance, defines it as a ‘total’ principle, see Flavier (n 116 p 42), at 410. According to Klamert, the duty of cooperation is a ‘general principle of Union law’, which transcends ‘the wording and scope of the Treaty provisions’, Klamert (n 130 p 45), at 11.

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as the immediate corollary of conferral, and the necessary complement to it.23 Primary law acknowledges the importance of vertical cooperation. Pursuant to Article 4(3) teu, ‘the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties’. The Member States must, in particular, ‘facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives’. This duty seems to apply not only to non-cfsp areas, but also to the cfsp.24 Article 24(3) teu indeed stipulates that the Member States must support the Union’s external and security policy actively and unreservedly ‘in a spirit of loyalty and mutual solidarity’. Other provisions specify the content of the duty of cooperation with respect to external relations. According to Article 25 teu, the cfsp should strengthen ‘systematic cooperation between Member States’. The States should also support the Union’s external and security policy actively and unreservedly and, for this purpose, their diplomatic missions should cooperate with the Delegations of the Union.25 Aside from a duty of vertical cooperation, there is also one of horizontal cooperation, which descends from the conferral of powers to eu organs. This duty is explicitly recognised in Article 13(2) teu, whereby ‘institutions shall practice mutual sincere cooperation’. The Union was indeed provided with an ‘institutional framework’ that advances its objectives.26 The eu’s goals cannot be attained if eu organs hinder each other’s actions. Consequently, they are subject to the same mutual obligations of sincere cooperation which govern relations between the Member States and the Union.27 The application of the principle of sincere cooperation may strengthen ­external action coherence, in the vertical and horizontal dimensions alike. For instance, the pfos case-law, according to which the States must abstain from dissociating themselves from a common position identified by Union o­ rgans, reinforces the unity of the eu on the international scene.28 23

24

25 26 27 28

Cf. Vlad Constantinesco, ‘L’article 5 cee, de la bonne foi à la loyauté communautaire’ in Francesco Capotorti and others (eds), Du droit international au droit de l’intégration: liber amicorum Pierre Pescatore (Nomos Verlagsgesellschaft 1987). See, to that effect, Federico Casolari, ‘eu Loyalty after Lisbon: An Expectation Gap to Be Filled?’ in Federico Casolari and Lucia Serena Rossi (eds), The eu after Lisbon: Amending or Coping with the Existing Treaties? (Springer 2014), at 100–101. Articles 32 and 35 teu. Id. Luxembourg v Parliament, Case 230/81, eu:c:1983:32, para 37; Greece v Council, C-204/86, eu:c:1988:450, para 16; Parliament v Council, C-65/93, eu:c:1995:91, para 23. See Chapter 1.III.2. In addition, one may argue that the monopoly of the Court of Justice on the interpretation of (certain) mixed agreements (based on the principle of sincere

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However, the potential of the principle of sincere cooperation, in terms of the promotion of coherence, is not without limits.29 A large part of the external action – the cfsp – is generally not subject to the jurisdiction of the Court of Justice.30 Even in non-cfsp areas sincere cooperation is not always easy to enforce. The Court may sanction the conduct of the Member States when the latter clearly contradict an act of the Union, or an established strategy. However, if the position of the Union is not entirely precise, or if the behaviour of the States is not patently at odds with it, the principle of sincere cooperation can hardly be enforced judicially. The external dimension of the ‘Energy Union’ is a case in point. eu institutions have been trying to forge a single external policy on energy for years, to reduce dependence vis-à-vis Russia, and diversify sources of supply. In this context, the Council authorised the Commission to negotiate an agreement with Azerbaijan and Turkmenistan on a legal framework for a Trans-Caspian natural gas Pipeline System,31 which may be an alternative to Russian gas. The policy of some eu Members, however, would seem to undermine the action at the European level. Instead of collaborating to pursue a common interest (energy independence) each country follows its own policy and makes or breaks alliances as suited to its national interests.32 The behaviour of eu Members is, politically speaking, an egregious example of lack of cooperation.33 Nonetheless, this non-cooperative behaviour may not be attacked in Court: legally speaking, the Member States are acting within the scope of their own competences. Unless the Union defines a precise position on which pipelines should be built and which should not,34 each State remains capable of pursuing its own priorities. cooperation) may foster a cohesive approach to external relations, cf. Flavier (n 116 p 42), at 436–448; Francesca Ippolito, ‘Giurisdizione comunitaria e accordi misti: dal criterio della competenza alla leale cooperazione’ (2009) 4 Studi sull’integrazione europea 657. 29 Cf. Flavier (n 116 p 42), at 449: ‘le principe de cooperation loyale […] n’est pas en situation de restituer à lui seul l’ensemble des techniques juridiques propres à assurer une action extérieure cohérente’. 30 See Article 275 tfeu. 31 Council of the European Union, ‘The Council gives go-ahead for negotiations on ­Trans-Caspian Pipeline System’, Council Doc. 14095/11, 12 September 2011. 32 ‘The eu’s Non Energy Union’ Natural Gas Europe (20 July 2015) accessed 24 July 2015. 33 Cf. Sijbren De Jong and Schunz Simon, ‘Coherence in European Union External Policy ­before and after the Lisbon Treaty: The Cases of Energy Security and Climate Change’ (2012) 17 European Foreign Affairs Review 165, at 178. 34 Council conclusions on Energy Diplomacy, Council doc. 10995/15, 20 July 2015.

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Given the difficulties in the judicial implementation of the principle of c­ ooperation, the attainment of cooperation in practice remains dependent on the political will of eu States and institutions – which is sometimes lacking.35 Consequently, one may suppose that coherence should be fostered in practice, not only through the implementation of the principle of sincere cooperation, but through other means. Coordination, discussed in the next section, appears as the most viable solution. ii

Coordination of Decision-Making: A Solution for Coherence in eu Foreign Affairs

The investigation has hopefully made clear that the eu’s ‘basic constitutional charter’36 requires the Union and its Members to act coherently on the world stage. However, as seen in the previous section, the enforcement of coherence encounters an apparently insurmountable obstacle in the delimitation of the competences and powers of the eu and of its bodies. The current constitutional framework of the Union, indeed, makes it impossible to centralise the management of foreign affairs, and complicates the implementation of cooperation among the different decision-makers. Cognizant of this apparent conundrum, the Member States have resorted to a solution that is as pragmatic as it is vague: coordination. The words ‘coordination’ and ‘coordinate’ appear frequently in the Treaties – more so, for instance, than the words ‘power’ or ‘confer’ – and are used often, in particular, in the field of external relations.37 One may intuitively guess that ‘coordination’ is a concept related to both ‘centralisation’ and ‘cooperation’. However, the precise meaning of coordination in eu law remains obscure. The present section seeks to clarify the notion of coordination and the means to promote it in practice. The remainder of the chapter will zoom in on the coordination of eu foreign affairs, and on the role played by the eeas therein. This section begins by exploring coordination in general terms, suggesting that the conduct of coordination presupposes the existence of a ‘coordina­ tor’ (1). It is submitted that the coordinating authority should ideally be

35 36 37

Cf. Casolari, ‘eu Loyalty after Lisbon’ (n 24 p 64), at 129. That is, the Treaties; see Les Verts v Parliament (n 38 p 19), para 23. There are 57 references to coordination and coordinate in the teu and the tfeu, ­compared to 42 references to power, and 40 to confer, conferred and conferral.

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a­ utonomous from coordinated entities (2), in administrative and operational ­matters (3). At the same time, it should be capable of cooperating and integrating with coordinated authorities (4). 1 Notion of Coordination ‘Coordination’ is a typical concept of pluralistic societies, since it implies a harmonious orientation of individuals towards common goals, but does not entail the complete elimination of their freedom.38 In general parlance, the idea of coordination is understood in two ways: as an objective, and as an activity. The objective of coordination may be defined as ‘the harmonious functioning of parts for effective results’.39 As is evident, coordination as an objective is roughly synonymous with coherence. Having already discussed coherence at length, it is not necessary to delve further into this issue. Another possibility is to conceive of coordination as an activity, which may contribute to ensuring coherence. One may generally term it as the activity of organising people or things in order to make them work together effectively.40 Beyond this vague definition, there would seem to be no agreement on the precise meaning of coordination. The ambiguity surrounding coordination is worsened by the tendency of policy-makers to constantly invent new expressions to describe this concept. ‘Joined up approach’, ‘integrated approach’ and ‘comprehensive approach’ are examples of expressions used by eu organs to indicate the ‘systematic use of all the tools we have at our disposal’;41 that is, ­coordination. Another example is the expression ‘Union method’, used by ­Angela Merkel in 2010: ‘coordinated action in a spirit of solidarity – each of  us  in the area for which we are responsible but all working towards the same goal’.42

38 39 40 41

42

Vittorio Bachelet, ‘Coordinamento’, Enciclopedia del diritto, x (Giuffrè 1962) 631, published in Vittorio Bachelet, Scritti giuridici: I – L’amministrazione pubblica (Giuffrè 1982), at 164. See the definition of ‘coordination’ in the Merriam-Webster Dictionary accessed 18 December 2015. See the definition of ‘coordination’ in the Macmillan dictionary accessed 18 December 2015. Commission and High Representative, Joint Communication ‘The eu’s comprehensive approach to external conflict and crises’, join(2013) 30 final; Commission, Towards an eu integrated approach to global maritime security, Press Release, 6 March 2014, accessed 15 November 2015. Merkel, Speech at the opening ceremony of the 61st academic year of the College of ­Europe in Bruges, 2 November 2010.

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Given its vagueness, coordination has been termed a ‘myth’.43 If defined more precisely, at any rate, the concept of coordination might be useful, ­especially if one intends to understand how coherence may be ensured in a system that is not centralised, such as eu external relations. To clarify the notion of coordination, it is firstly opportune to exclude some concepts from the scope of the analysis. The most decentralised activities, i.e.  the simple cooperation between different authorities, arguably do not ­constitute a form of coordination, legally speaking. In political terms, the word ‘coordination’ can be used to describe a de-centralised process: different a­ uthorities that exert decision-making powers may potentially form a network through which they can self-organise their activities.44 However, from a legal perspective, de-centralised ‘coordination’ does not seem to differ from the b­ etter-known concept of ‘cooperation’. If two bodies must co-ordinate (‘arrange together’), they are actually required to work together, that is, to ­co-operate. The very eu Treaties use the words ‘coordination’ or ‘coordinate’ to describe what would seem to amount to a duty of cooperation. Article 168(2) tfeu, for instance, stipulates that the Member States must ‘coordinate among themselves’ their policies in the area of public health.45 Arguably, it would not make any difference, in legal terms, if this provision required the Member States to cooperate, instead of coordinating. The Court of Justice also uses cooperation and coordination as synonymous. This is the case, in particular, of the famous fao judgement, regarding the external representation in an international organisation in which both the eu and the Member States participate by virtue of a mixed agreement. This judgement mentions an arrangement concluded by the Commission and the Council, which sets up a ‘coordination’ procedure to decide on the exercise of responsibilities within an international organisation.46 Nevertheless, the

43

44

45 46

Luis Blanco de Tella, ‘El mito de la funcion coordinadora’ in Luis Blanco de Tella and Francisco Gonzalez Navarro (eds), Organizacion y procedimientos administrativos (Editorial Montecorvo 1975). Cf. Andrew Jordan and Adriaan Schout, The Coordination of the European Union: ­Exploring the Capacities of Networked Governance (Oxford University Press 2006), at 38. See also ­Monaco, Les principes (n 2 p 1), at 159; Claude Goyard, ‘La coordination et la consultation dans l’administration publique en France’ (1974) 26 Revue internationale de droit ­comparé 747, at 750. See also Articles 171(2), 173(2), 175 and 181(1) tfeu. Commission v Council (fao), C-25/94, eu:c:1996:114, para 6. Further on the ‘coordination’ of the Union in this area, see Frank Hoffmeister, ‘Curse or Blessing? Mixed Agremeents in the Recent Practice of the European Union and Its Member States’ in Christophe Hillion

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Court later defines that arrangement as a fulfilment of the duty of ‘­cooperation’ ­between the Union and its Members.47 This linguistic confusion may be easily explained: although mixed agreements may be described – in general terms – as a form of coordination, they remain – from a legal perspective – an instrument to ensure the cooperation between the eu and its Members. Considering that coordination cannot be entirely decentralised, it logically implies some degree of centralisation: a central authority should have the capability to steer the conduct of the peripheral entities. The concept of coordination, in other words, presupposes the existence of a ‘coordinator’. This argument should not be taken to its extreme consequences: coordination does not correspond to the complete centralisation of power, either. The concentration of power in a single authority certainly contributes to ensure the harmonious functioning of different parts.48 However, one does not need to describe complete centralisation of power as a form of coordination: there are other legal concepts that describe this situation more precisely. The centralisation of power in a single organ is better explained by the concept of ‘hierarchy’: in a hierarchical entity, the superior ‘orders’; it does not ‘co-order’.49 Similar considerations are applicable to the centralisation of power in an international organisation. Conferral of (exclusive) competences explains reality better than a generic reference to coordination. Coordination thus appears as an intermediate concept, between complete decentralisation and complete centralisation of decision-making power. Therefore, one may term coordination as the activity of an authority – the coordinator – which steers the conduct of other entities, without substituting them in the exercise of their powers, for the purpose of promoting coherence between their policies. At first sight, such a definition may seem paradoxical: it may be wondered how an authority may steer the conduct of another one without impinging on the exercise of its powers. As shown in the next paragraph, this paradox is solved differently by the diverse coordinating authorities.

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and Panos Koutrakos (eds), Mixed Agreements Revisited: The eu and its Member States in the World (Hart 2010), at 260–262. Commission v Council (fao) (n 46 p 68), para 49. Cf. Guy B. Peters, ‘Managing Horizontal Government: The Politics of Co-Ordination’, Public Administration 76 (1998): 295–311, at 298; Vittorio Bachelet, Profili giuridici dell’organizzazione amministrativa: strutture tradizionali e tendenze nuove (Giuffrè 1965), re-published in Bachelet, Scritti giuridici (n 38 p 67), at 216; Bachelet, ‘Coordinamento’ (n 38 p 67), at 161. Fulvio Cortese, Il coordinamento amministrativo. Dinamiche e interpretazioni (Franco ­Angeli 2012), at 23.

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Typology of Coordinating Authorities: Advantages of an Autonomous Coordinator The study has demonstrated that external action coordination should be ensured by an authority that steers the conduct of other decision-makers. The instruments used to perform this coordinating function depend on the nature of the coordinating authority. It is opportune to distinguish between two kinds of coordinators: (a) collective bodies, and (b) autonomous authorities. Collective bodies, i.e. the organs formed by the representatives of coordinated authorities, constitute perhaps the simplest method for coordination. A collective body may be either a common organ of its members (i.e. an organ whose actions are simultaneously attributed to different subjects),50 or an organ of an international organisation. Admittedly, the organs of international organisations may be more than coordinating authorities, notably if they vote by majority, thereby imposing a certain conduct on all their Members (this is the case of the Council in most non-cfsp areas). In the case of collective organs and intergovernmental institutions that vote by unanimity (such as the Council in the cfsp sphere), at any rate, the coordinating role is prevalent. The primary function of collective bodies consists of providing a forum for decision-makers to discuss their policy, and eventually agree (or not) on a common course of action. This role of collective bodies does not raise problems in terms of respect for the powers of coordinated authorities: those powers remain, de jure or de facto, in the hands of the bodies’ members.51 The limit of collective bodies is not legal, but political: when the interests of their members are too divergent, the ‘coordinators’ are likely to become a mere arena for sterile discussions. This is probably what happens when the Council addresses the thorniest cfsp issues. Autonomous coordinators – i.e. independent authorities entrusted with a coordinating function – are another solution for the attainment of coherence; a solution which is more refined, and potentially more effective, than collective

2

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Cf. Gaetano Morelli, Nozioni di diritto internazionale (cedam 1967), at 243–247; see further Claudio Baldoni, ‘Gli organi e gli istituti nelle unioni internazionali’ (1931) 23 Rivista di diritto internazionale 352; Vittorio Favilli, Sulla teoria degli organi in diritto internazionale (­Università di Trieste 1949); Giorgio Balladore-Pallieri, Diritto internazionale pubblico (­Giuffrè 1962), at 161–163; Dionisio Anzilotti, ‘Gli organi comuni nelle società di Stati’ (1914) 8 Rivista di diritto internazionale. The powers remain with the members de jure in the case of common organs; they remain with the members de facto in the case of international institutions that vote by unanimity: although the powers are formally conferred to international institutions, they cannot be exercised without the approval of all the institutions’ Members.

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bodies.52 Being independent from other authorities, such coordinators may potentially enjoy the discretion that is necessary to define a policy, on which the views of coordinated bodies may subsequently converge. Moreover, an autonomous coordinator is likely to be perceived as ‘neutral’ in its relationship with coordinated authorities. Hence, it may allocate scarce resources among the other authorities, to avoid negotiating standoffs, and act as an ‘honest broker’ amid the parties,53 thereby ensuring mediation and building trust.54 This should permit the autonomous coordinator to foster convergence among decision-makers (such as the Member States in the Council), thus contributing to avoid deadlock situations. The problem with autonomous coordinators is that they risk being ineffective, on the one hand, and impinging on the powers of coordinated authorities, on the other hand. This problem, nevertheless, may be solved, since, according to a widespread view, coordinators merely assist other authorities, which are attributed decision-making powers and exert them in their own capacities.55 For instance, it has been argued that certain international organisations perform a coordinating function when they assist their Members in the performance of a given task, but do not take any action on their own.56 Such considerations are sometimes extended to the very European Union, when it 52

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The coordinating authority may be autonomous from some coordinated bodies, but not from the others (and may even coincide with one of them). This is the case of the ­organs that exert decision-making powers of their own while ‘coordinating’ the exercise of ­powers on the part of other organs. This kind of coordination, at any rate, may raise political issues, since it is likely to favour the pursuit of the coordinator’s priorities over those of other authorities. This may reduce the legitimacy of the process and ultimately the ­willingness of other decision-makers to participate in it. See Goyard (n 44 p 68), at 759. Cf. Kenneth W Abbot and Duncan Snidal, ‘Why States Act through Formal International Organizations’ (1998) 42 The Journal of Conflict Resolution 3, at 20–22. Jordan and Schout (n 44 p 68), at 39. Arguably, the performance of coordination activities does not necessarily imply the exercise of a power in the legal sense, at least in the eu legal order. eu primary law makes this clear, by identifying ‘coordinating’ functions that do not correspond to a power in the ­legal sense. The High Representative, for instance, coordinates external relations within the Commission, ex Article 18(4) teu, but does not exercise a power of his/her own: he/she merely participates in the exercise of the powers of the Commission. Nonetheless, it is possible that, in other legal orders, certain bodies are entrusted with specific prerogatives, defined as coordinating powers, cf. e.g. Sveva Del Gatto, Il metodo aperto di coordinamento: amministrazioni nazionali e amministrazione europea (Jovene 2012), at 255. This is the case of the international organisations that have been defined as ‘simple’, by Baldoni (n 50 p 70), at 369; see also Gaetano Morelli, ‘Stati ed individui nelle organizzazioni internazionali’ (1957) 40 Rivista di diritto internazionale 3.

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exercises its competences of coordination (Article 6 teu): these competences allegedly enable the Union to assist its Members in the conduct of their ­policies.57 By analogy, one may suppose that an autonomous coordinator of eu external relations should assist the main decision-making authorities in this area, without impinging on the exercise of their powers.58 This consideration raises two further issues. First, in what respects may eu coordinating bodies be ‘autonomous’? And, second, how may they ‘assist’ decision-making authorities in practice? These issues are addressed, in turn, in the next paragraphs. 3 Main Dimensions of the Coordinator’s Autonomy In light of the above findings, one may expect that the organs entrusted with the coordination of the external action should be ‘autonomous’. Even so, the notion of the ‘autonomy’ of an eu body is not a straightforward concept, and requires clarification. Following the typology introduced by Sereni, one may distinguish between two main categories of autonomy of international organisations’ bodies: an internal one, consisting in the ability of an organ to manage internal affairs; and an external one, concerning its relationship with other authorities.59 This categorisation may be applied, with some adaptations, to the European Union. One may think of an administrative (internal) autonomy of eu bodies, which consists of their ability to regulate their internal functioning, and of an ­operational (external) autonomy, i.e. their capacity to operate without e­ xternal constraints.60 The next paragraphs provide for a more precise definition of 57

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See Roberto Baratta, ‘Art. 6 tfue’ in Antonio Tizzano (ed), Trattati dell’Unione europea (Giuffrè 2014) 393, at 393. The Open Method of Coordination may be seen, in fact, as an example of coordination that excludes the exercise of powers on the part of the coordinator. Cf. Fabien Terpan, ‘Soft Law in the European Union-The Changing Nature of eu Law’ (2015) 21 European Law Journal 68, at 81; See further Vassilis Hatzopoulos, ‘Why the Open Method of Coordination Is Bad for You: A Letter to the eu’ (2007) 13 European Law Journal 309; Susanna Cafaro, ‘La méthode ouverte de coordination, l’action communautaire et le rôle politique du Conseil européen’, Mélanges en hommage à Jean-Victor Louis – Vol. ii (Editions de l’Université de Bruxelles 2003). The present investigation addresses only the coordination among the organs of the Union – not the coordination between the Union and other international subjects; on the ­distinction between these concepts, see Riccardo Monaco, ‘Il coordinamento tra enti internazionali’, Scritti di diritto delle organizzazioni internazionali (Giuffrè 1981), at 266. Cf. Angelo Piero Sereni, Le organizzazioni internazionali (Giuffrè 1959), at 276–278. The conceptualisation I propose differs, in certain respects, from that of Sereni. Administrative autonomy, in particular, is similar to the ‘internal’ autonomy identified by

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these concepts, which forms the basis of the analysis of the eeas’s autonomy, performed in the second part of the book (Chapters 3 and 4). 3.1 Administrative Autonomy Certain eu bodies – notably, the institutions – have the power to organise, as they wish, how they are to function,61 without interference from other eu ­organs or from the Member States.62 In other words, they are capable of independently managing their internal administration. This autonomy a­ rguably constitutes ‘an essential requirement’ for the proper functioning of eu bodies,63 and a ‘fundamental condition’ for the performance of their tasks.64 Such an autonomy may be labelled as ‘administrative’.65 The adjective ‘administrative’ is indeed used in this sense in three primary law provisions. ­Article 15 tfeu stipulates that the cjeu, the European Central Bank (ecb), and the European Investment Bank (eib) are subject to transparency rules when exercising their ‘administrative tasks’. Moreover, Article 41 teu stipulates that ‘administrative expenditure’ (i.e. expenditure related to the functioning of eu bodies), to which the implementation of the cfsp Chapter gives rise, is charged to the Union budget. What is more, Article 335 teu affirms that the Union, in legal proceedings in the Member States, is represented by each of its

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Sereni, but is not identical, since it implies, not only the ability to adopt purely internal acts, but also the capacity to interact with external organs and subjects. For instance, eu i­nstitutions enjoy the administrative autonomy that is necessary for the purpose of ­buying goods and services (e.g. for renting a building to use as a headquarters). AG Mengozzi in Commission v Council, C-28/12, eu:c:2015:43, para 55. Autonomy, from this perspective, comes close to what has been defined as the ‘autonomization’ of eu agencies, i.e. ‘how far is the organization free to make its own choices about internal ­arrangements’, see Christopher Pollitt and others, Agencies: How Governments Do Things Through ­Semi-Autonomous Organizations (Palgrave Macmillan 2004), at 36; see also ­Madalina Busuioc, ‘Accountability, Control and Independence: The Case of European Agencies’ (2009) 15 European Law Journal 599, at 603. Opinion of AG Geelhoed in Betriebsrat der Vertretung der Europäischen Kommission in Österreich v Europäische Gemeinschaften, C-165/01, eu:c:2003:224, para 98. AG Geelhoed in ab v Finanzamt für den 6., 7. und 15. Bezirk, C-288/04, eu:c:2005:262, para 23. AG Geelhoed in Betriebsrat der Vertretung der Europäischen Kommission in Österreich (n 62 supra), para 98. Alternatively, one may define this form of autonomy as ‘organisational’, since it relates to the internal organisation of eu institutions. The legislature has used the expression ‘organisational autonomy’ in this sense in a few cases, see e.g. Regulation 883/2013/eu/ Euratom concerning investigations conducted by the European Anti-Fraud Office (Olaf) oj 2013 L 248/1, preamble, recital 3.

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institutions ‘by virtue of their administrative autonomy’. Secondary law also uses the word ‘administrative’ in this sense, especially in the field of budget implementation. The eu financial rules make a distinction between the expenses related to the functioning of eu institutions (administrative expenses) and those relating to the implementation of the budget (operational expenses).66 The ‘administrative autonomy’ of eu institutions in financial matters is explicitly recognised.67 It would seem logical that administrative autonomy should be required for the conduct of effective coordination. An entity that is administratively attached to another is subject to its influence. The control of administrative issues may indeed ensure the ability to define issues such as the internal organisation of tasks, the staff policy, and the disbursement of funds. If a coordinator were administratively attached to another authority, it would hardly be able to present itself as an autonomous entity in the eyes of other coordinated authorities. This is not to say that coordinators should have absolutely no administrative links to other entities.68 Autonomy is a relative term that describes the extent or degree of independence of a particular entity, rather than defining a particular minimum level of independence that can be designated as the status of ‘autonomy’.69 In summary the more a coordinator is administratively autonomous, the more likely it is to be perceived as independent and, consequently, the more likely it is to effectively perform its coordination activities in practice. 3.2 Operational Autonomy The autonomy of eu organs is not limited to administrative (internal) issues, but extends to the ‘external’ sphere. One may conceive of the idea of external autonomy of eu organs in a broad way, as ‘independence of action’,70 that is the ability to conduct activities without external constraints.71 In this sense, 66

See, in particular, Regulation 966/2012/eu/Euratom on the financial rules applicable to the general budget of the Union, oj 2012 L 298/1, Article 38(7). 67 On the use of the expression ‘administrative autonomy’, see Regulation 966/2012 (note 66 supra), Article 54(2)(e). For another example of the use of ‘administrative autonomy’ in this area, see Commission Decision of 1 August 2013, oj 2013 C 222/8, preamble, recital 9. 68 All eu bodies have some administrative attachments to other entities. The Commission, for instance, must respect the rules on staff management and budget implementation set by the Council and the Parliament. For further on this, see Chapter 3.I.2 and 3.I.3. 69 Cf. Hurst Hannum and Richard B Lillich, ‘The Concept of Autonomy in International Law’ (1980) 74 The American Journal of International Law 858, at 885. 70 Hannum and Lillich (n 69 supra), at 860. 71 This form of autonomy comes close to the definition of ‘independence’ (of agencies) given by Martin Shapiro, ‘The Problems of Independent Agencies in the United States and the

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autonomy corresponds to the ability to conduct an action in a manner that is insulated from the influence of other actors.72 This second type of autonomy may be termed as ‘operational’, since it relates to the independence of an organ in the conduct of the substantive operations of the eu.73 These operations may include, for example, the proposal, adoption, and implementation of legal acts.74 eu institutions have employed the expression ‘operational autonomy’ in this sense in several occasions. The Commission has used it to define the relationship between two undertakings, when evaluating the compatibility between concentrations and the common market.75 The legislature termed ‘operational autonomy’ as the status of the Institute for Security Studies,76 of the European Judicial Network’s secretariat,77 and of self-financed eu bodies (such as certain decentralised agencies).78 Moreover, the Court of Justice has used the expression ‘operational autonomy’ to define the status of the European Investment Bank, since the latter is able to act in complete independence on the financial market.79 The relevance of this form of autonomy in the ambit of coordination seems to be evident. If a coordinator were incapable of acting independently

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European Union’ (1997) 4 Journal of European Public Policy 276, at 289: ‘eu ­independent agencies are independent in the sense of being relatively free of control by any of the other organs of the Community’. Cf. Curtin (n 18 p 63), at 155–156. Cf. YZ Haftel and Alexander Thompson, ‘The Independence of International Organizations: Concept and Applications’ (2006) 50 Journal of Conflict Resolution 253, at 257. Cf. CF Amerasinghe, Principles of the Institutional Law of International Organizations (Cambridge University Press 2005), at 168. See also Sereni (n 59 p 72), at 277. eu Treaties and secondary law make clear that there is a distinction between the eu’s administrative expenditure and the operational one, see Article 41 teu and Regulation 966/2012 (n 66 p 74), Article 38(7), Art. 7(1) and 38(7). Commission Decision declaring a concentration to be compatible with the common market (Case No iv/m.1367 – inchcape holdings hellas/efg eurobank), oj 2001 C 328/11, para 7; Commission Decision of 19/05/2011 declaring a concentration to be compatible with the common market (Case No comp/m.6113 – dsm / sinochem / jv), para 14. Council Decision 2014/75/cfsp on the European Union Institute for Security Studies, oj 2014 L 41/13, Art. 3. Council Decision 2002/187/jha setting up Eurojust with a view to reinforcing the fight against serious crime, oj 2002 L 63/1, Art. 26(2)(b). Council Regulation 1995/2006/ec/Euratom amending Regulation 1605/2002/ec/Euratom on the Financial Regulation applicable to the general budget of the European Communities, oj 2006 L 390/1, preamble, recital 44. Commission v eib, C-15/00, eu:c:2003:396, para 101.

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in the conduct of substantive operations, it would act de facto as the organ of the entity that controls it. Hence, it would not be perceived as neutral and would be delegitimised in the eyes of coordinated authorities, which may become uncooperative. As a result, the coordinator may be unable to mediate and stimulate cooperation, and would ultimately fail to foster coherence in the decision-making process. To be sure, operational autonomy, like the administrative one, is not an absolute concept.80 The question is, again, one of degree: a coordinator that is fully subject to the control of another authority is unlikely to succeed; it would be more effective if it developed some independence of action. 4 Activities of Autonomous Coordinators The analysis of external action coherence and of its implementation has suggested that, to increase synergy in foreign affairs, the eu needs an autonomous body which may perform coordinating activities. These activities should take the form of an ‘assistance’ to decision-making authorities, but should not interfere with the exercise of their powers. Since the precise content of such an ‘assistance’ is not self-evident, some clarification is in order. One may arguably distinguish between two forms of assistance that coordinators may provide to decision-making authorities, without usurping their prerogatives. First, the coordinator may cooperate with the coordinated entities. Second, the coordinator may integrate with them. The next paragraphs address these two issues, providing for an analytical framework on which the study of the eeas’s activities, performed in the third part of the book (Chapters 5 and 6), is founded. 4.1 Cooperation with Other Authorities Cooperation is perhaps the most obvious solution for fostering coordination in practice. It is also a generic term, which does not elucidate the specificities of the relationship between the coordinator and coordinated authorities. It is opportune, therefore, to identify with greater precision the kind of ‘cooperation’ activities that the coordinator may put into place to foster coherence in decision-making.

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Even the agencies of the eu, which have been set up inter alia to ensure neutrality in the regulation of certain sectors, are not entirely autonomous from an operational viewpoint, since they are subject to different forms of control, see Carlo Tovo, Le agenzie decentrate dell’Unione europea (Editoriale scientifica 2016), at 323 ff.

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One may think of three main activities that may be labelled as ‘cooperation’, and may be conducive to coordination.81 First, the consultation between the coordinator and coordinated authorities during the decision-making process. Such a consultation may facilitate the exchange of views between different entities, thereby fostering synergy between their actions, at least in principle. For instance, Frontex must consult the Member States that may participate in its border surveillance operations, before adopting the plan of the mission.82 Secondly, the coordinator may distribute information. Instead of sending information from one actor to the other, decision-makers may convey their messages to a single centre – the coordinator – which then distributes them to the other authorities. By performing this kind of activity, the coordinator makes sure that information is managed in a rational and efficient manner.83 In addition, the coordinator may also provide information that comes from outside the network of coordinated authorities, by relying on its own sources. By providing new information to other authorities, the coordinator strengthens its reputation and credibility, ultimately increasing the probability that other entities may be willing to follow its lead. Thirdly, coordinators may provide material support to coordinated authorities. This support may take the form of financial contributions, which are necessary to conduct common actions. The promise of a financial contribution may indeed stimulate an authority to perform the act desired by the coordinator and thus ensure a coherent action. In the field of civil protection, for 81

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One may think of a fourth form of cooperation, i.e. the use of the power of initiative. By formulating proposals, a coordinating body may define a common position on which other authorities may converge. Article 294(9) tfeu reinforces the Commission’s role, by stipulating that the Council must act unanimously on the amendments on which the Commission expresses a negative opinion. Cf. Vlad Constantinesco, Compétences et pouvoirs dans les Communautés européennes : Contribution à l’étude de la nature juridique des Communautés (Librairie générale de droit et de jurisprudence 1974), at 315, 405–407. At any rate, it would not seem necessary to investigate this issue from the perspective of cooperation in the present analysis, since the Service participates in the exercise of the power of initiative mainly by integrating within other bodies, notably the Commission and the Council. Therefore, the issue is discussed in terms of ‘integration’, rather than ‘cooperation’ (see Chapter 6.I.1.1 and 6.I.2.1). Council Regulation 2007/2004, oj 2004 L 349/1, as amended by Parliament and Council Regulation 1168/2011, oj 2011 L 304/1, at Article 3a(1). This happens, for example, in the field of eu civil protection, where the Commission acts as a communication hub, by collecting information and requests for aid after disasters and forwarding it to the authorities of the Member States, see Parliament and Council Decision 1313/2013/eu on a Union Civil Protection Mechanism, oj 2013 L 347/924, Article 15.

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instance, the European Commission gives financial support to a Member State that assists a disaster-stricken country, to facilitate access to transport ­resources and ensure a rapid response.84 Material support may also have a logistical nature, in terms of infrastructures, transportation, or equipment. The offer of such facilities may have effects similar to the offer of financial resources, thus enabling the coordinator to influence the decision-making process.85 One may suppose, in any event, that the cooperation between the coordinator and other authorities may be insufficient to foster coherence in practice. Coordinated bodies sometimes are unwilling to cooperate: that is precisely the reason why coordinators are necessary. May the coordinator ‘force the hand’ of coordinated authorities, prompting them to follow a specific political line, without impinging on the exercise of their powers? 4.2 Integration with Other Authorities A solution for more effective coordination, that does not impinge on the exercise of the powers of coordinated bodies, lies in the ‘integration’ between the coordinator and coordinated bodies. This integration may take two (symmetric) forms. In the first place, the coordinator may integrate the organs of coordinated authorities within its own structure, thereby exerting some degree of authority over them. This situation is rather frequent at the State level, especially in the field of diplomacy. As noted above, several administrations of the State are involved in external relations; ministries of environment of different States, for instance, regularly collaborate on issues such as climate change. In order to facilitate international cooperation on ‘technical’ matters, these administrations second their officials to the embassies of their States. These organs generally operate under the authority of an ambassador who, in turn, is hierarchically subordinated to the foreign minister. When an officer of an ‘internal’ ministry is seconded to an embassy, he/she generally remains attached to his/her original administration (e.g. environment ministry), to the extent that he/she conducts activities on its behalf and receives its instructions. At the same time, 84 85

Id., Articles 22 and 23(1)(d). For example, the un Humanitarian Response Depots, managed by the World Food ­Program, hold strategic emergency relief stocks, which may be mobilized by several subjects in case of humanitarian emergencies. Given its control over the physical resources, the Humanitarian Response Depots may ensure that the emergency resources comply with specific standards, and may contribute to decide which resources may be stocked. Cf. the Standard Operating Procedures of the unhrd Network, especially at Section 5.1, ­available at accessed 28 November 2015.

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the seconded officer operates under the authority of the ambassador, who is normally informed about all the instructions sent by other administrations to their officers,86 and may directly oversee the performance of the officers’ duties, and even promote disciplinary actions87 or order any officer to abandon the diplomatic mission.88 Besides the integration of the organs of coordinated authorities within the coordinator, one may also think, at least in theory, of the reverse situation, i.e. the integration of the coordinator within one of the coordinated authorities. At first sight, this situation may not seem entirely logical. The idea of coordination, being somehow intermediate between cooperation and centralisation, might seem to presuppose some kind of superiority of the coordinator vis-àvis other authorities,89 which should give the former the ability to influence the latter’s behaviour. However, one may argue that entities that are formally subordinate to others may exert some kind of ‘power’ in practice – and thus enjoy some form of de facto superiority. In order to understand this, one should acknowledge the sociological notion of power. A broad definition of power has been provided by Dahl, according to whom: ‘A has power over B to the extent that he can get B to do something that B would not otherwise do’.90 This suggests that power is a transactional issue, and depends on acceptance: a person may grant authority to another by accepting a message or directive from that other. In other words, the sphere of authority of any ‘superior’ is the sphere of acceptance of its ‘subordinates’.91 This explains why, in practice, ‘all leaders are also led; in innumerable cases, 86

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For France, see: Décret n° 79–433 du 1 juin 1979 relatif aux pouvoirs des ambassadeurs et à l’organisation des services de l’Etat à l’étranger, Journal Officiel de la Republique ­Française, 3 June 1979, p. 1310, Article 6. For Spain, see: Decreto 632/1987, de 8 de mayo, ­sobre organización de la Administración del Estado en el exterior, Boletín Oficial del ­Estado, number 118, 18 May 1987, p. 14333, Article 10.1. For Spain, see Decreto 632/1987 (n 86 supra), Articles 9(d) and 10(1); see also Real Decreto 33/1986, de 10 de enero, por el que se aprueba el Reglamento de Régimen Disciplinario de los Funcionarios de la Administración del Estado, Boletín Oficial del Estado, number 15, 17 January 1986, p. 2377, Article 29(1). Décret n°79–433 (n 86 supra), Art. 9. Cf. Bachelet, ‘Coordinamento’ (n 38 p 67), at 170. One may also speak of ‘functional ­supremacy’, see Del Gatto (n 55 p 71), at 256. Robert A Dahl, ‘The Concept of Power’ (1957) 2 Behavioral Science 201. Of course, other definitions of ‘power’ are possible, see Steven Lukes, Power, Second Edition: A Radical View (Palgrave Macmillan 2005). Robert Tannenbaum, ‘Managerial Decision-Making’ (1950) 23 The Journal of Business of the University of Chicago 22.

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the master is the slave of his slaves’.92 It is possible, therefore, that the coordinator may seek to steer the conduct of other authorities ‘from below’, i.e. by integrating within their structure. iii

Political Organs as Inadequate Coordinators of eu Foreign Affairs

From the above investigation, one may infer that the eu needs an external ­action coordinator, which may steer the policies of different actors. This coordinator should arguably have two characteristics: being sufficiently autonomous from other decision-makers, to act as a credible mediator between them, and being capable of influencing the exercise of other decision-makers’ ­powers, through cooperation or organisational integration. ‘Political’ organs do not appear to constitute ideal candidates for the coordinator’s position. eu institutions are particularly inadequate for this purpose (1). This explains why the Member States have created a new office, the High Representative for Foreign Affairs and Security Policy (hereinafter: High Representative, hr), who should bridge the gap between the different policy domains. However, even the High Representative may encounter limits in the performance of his/her tasks, since he/she lacks a well-defined autonomy from other organs and does not have clearly determined tasks (2). 1 Unsuitability of eu Institutions as Coordinators Collective organs – the European Council and the Council – may seem to constitute the most obvious coordinators of the external action. The European Council, in particular, has the formal power to adopt acts directing the whole of eu external relations, i.e. the decisions on the strategic interests and objectives of the Union (Article 22 teu). However, the potential of this institution is limited, given its composition. This institution is indeed a collective body of the Member States: it functions as a forum, where the States’ representatives seek to reach agreement by consensus.93 No decision on the strategic interests and objectives of the eu, in fact, has been adopted after Lisbon. 92 93

Georg Simmel, The Sociology of Georg Simmel (Kurt H Wolff tr, Simon and Schuster 1950), at 185. In addition, one may note that the European Council may indicate broad political priorities, but cannot follow the management of day-to-day activities. This seems a significant shortcoming: given the divergence of interests between eu Members, and between eu institutions, one may hypothesise that some degree of coherence may be brought about by fostering pragmatic compromises on relatively secondary issues.

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The Council has perhaps greater potential as a coordinator. The representatives of eu Members frequently meet, at different levels, in the Council, the Coreper, the Political and Security Committee (psc), and in working parties. Through these meetings, they constantly exchange information, consult each other, bargain on their foreign policy and ultimately reach compromises, thereby giving rise to eu policies. However, the Council is limited, in the cfsp sector, by its nature as a collective body. Moreover, the Council suffers from a problem of legitimacy, since it pursues the interests of the Member States – not those of European integration. The European Parliament, the Commission, part of the civil society, and even the more integration-minded Member States would be likely to oppose the entrustment of coordinating functions on the Council vis-à-vis other bodies, notably the Commission. The Commission itself may, at first sight, seem a good coordinator of external relations. It is generally effective in taking the initiative, since the College of the Commissioners and its President may set precise political priorities.94 The power of initiative (Article 17(2) teu) gives the institution a possibility to transform its priorities into policy, via cooperation with the legislature. The power of policy implementation (Article 291(2) tfeu) and of budget implementation (Article 317 tfeu) enables the Commission to put the policy into practice and to adapt it to the circumstances in the field. The potential of the Commission is further reinforced by its autonomy. Not only is the Commission, as an institution, ‘completely independent’ in carrying out its responsibilities, but its members must also be independent ‘beyond doubt’ (Article 17(3) teu).95 The strengths of the Commission, however, are also its weaknesses. The more the Commission is proactive and autonomous, the less the Member States are likely to entrust it with further responsibilities, especially in a sensitive field such as external relations. This is not to say that each and any State, in any 94 95

Cf. e.g. Juncker (n 19 p 63). See also Article 245 tfeu. Although the Commission’s autonomy from eu Members should not be taken for granted (as shown in Chapter 4.I.3), it would seem that the ­Commission is generally capable of defining its own priorities and policies. The institution demonstrated this, for instance, in 2015 by proposing a number of measures on the management of migration, including the relocation of asylum-seekers and the introduction of stricter rules on the identification of persons entering the eu illegally. These measures do not seem inspired by the Member States, since several eu countries were less than enthusiastic about the Commission’s proposals, cf. Georgi Gotev, ‘Commission on Collision Course with Member States on Migration’ EurActiv (27 May 2015) accessed 19 December 2015.

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historical era, is unwilling to entrust foreign policy responsibilities on a highly proactive and autonomous international institution. eu countries would seem to have done that in 1957, when they gave exclusive competences to the eec in the field of external trade. However, in the present political environment, characterised by weak political leadership, resurgent nationalism and widespread populism, a significant reinforcement of the Commission in f­ oreign affairs would seem quite unrealistic. If the Council is too governmental, while the Commission is not governmental enough, the optimal solution for coordination may possibly lie in the creation of an organ somewhere ‘in between’ the two institutions. This is ­precisely the position of the High Representative. 2 The High Representative: Coordinator or Impossible Job? The High Representative for the Common Foreign and Security Policy, created with the Amsterdam Treaty, was not an autonomous office at first. Pursuant to then Articles 26 teu and 207 tec, the High Representative was the SecretaryGeneral of the Council, appointed by the institution itself. Given his/her full subordination to the Council, the hr had little to no power of his/her own. He/she assisted the institution in the cfsp field, in particular by ‘contributing’ to the formulation, preparation, and implementation of policy decisions. The High Representative could also conduct political dialogue with third parties (i.e. represent the eu externally), but only ‘acting on behalf of the Council at the request of the Presidency’, which was the eu’s representative in the cfsp field. In other words, the hr was not conferred any power: it assisted the Council and its Presidency in the exercise of their powers.96 In light of these considerations, one could have expected the hr not to play a significant role in eu external relations. Nonetheless, the first and only High Representative nominated before the Lisbon reform, Javier Solana, managed to leave a mark in eu foreign policy. His relevant experience (he had been ­foreign minister of Spain and secretary-general of nato) probably served to reinforce his credibility, to the extent that he came to influence the conduct of eu foreign affairs in practice.97 He managed to speak on cfsp issues and to

96 97

That is to say, policy initiative and implementation, for the Council, and external representation, for the Presidency. Cf. Eduardo Gianfrancesco, ‘Article 18 [The High Representative]’ in Hermann-Josef ­Blanke and Stelio Mangiameli (eds), The Treaty on European Union (teu) (Springer 2013), at 738–739; Niklas Helwig, ‘Legitimacy of the eeas’ in Doris Dialer, Heinrich Neisser and Anja Opitz (eds), The eu’s External Action Service: Potentials for a One Voice Foreign Policy (Innsbruck University Press 2014), at 69.

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be recognized as the eu representative by third parties.98 Moreover, he drafted the European Security Strategy, a document setting the eu’s broad foreign policy priorities, subsequently endorsed by the European Council.99 Notwithstanding Solana’s record, the pre-Lisbon office of the High Representative was evidently insufficient. Lacking proper powers, the hr could contribute to policy-making only if his/her charismatic and technical legitimacy compensated for his/her limited legal legitimacy. Moreover, the High Representative did not play any significant role in the Community sphere, and was consequently unable to bridge the divide between the ‘low’ and ‘high’ policies of the Union.100 In order to compensate for these shortcomings, the European Convention envisaged the creation of the Minister of Foreign Affairs. After the failure of the Constitutional Treaty, this post was re-named ‘High Representative of the Union for Foreign Affairs and Security Policy’. This choice permitted to avoid the politically sensitive formula ‘minister of foreign affairs’, which is typical of States, in favour of a more neutral nomen that is often used in international ­organisations. The substance of the office, at any rate, remained unchanged. The Minister of Foreign Affairs/High Representative was conceived as a merger between the former posts of external relations Commissioners and (­pre-Lisbon) High Representative; hence, he/she has a ‘supranational’ and an ‘intergovernmental’ legitimacy at once.101 The hr performs four main functions.102 In the first place, the new High Representative’s office builds upon that of the pre-Lisbon hr, notably with 98

Asle Toje, ‘The 2003 European Union Security Strategy: A Critical Appraisal’ (2005) 10 European Foreign Affairs Review 117, at 126; Hylke Dijkstra, ‘eu External Representation in Conflict Resolution: When Does the Presidency or the High Representative Speak for Europe?’ (2011) 15 European Integration online Papers. 99 See European Security Strategy (n 51 p 23); Cf. Gerrard Quille, ‘The European Security Strategy: A Framework for eu Security Interests?’ (2004) 11 International Peacekeeping 422. To be sure, the European Security Strategy had a ‘questionable’ legal status, since it was not contained in a formally binding legal act, but had nonetheless great symbolic value, see Henri de Waele, Layered Global Player: Legal Dynamics of eu External Relations (Springer 2011), at 58. 100 Consequently, this role was performed, more or less effectively, by the European Commission, see Novi (n 115 p 42), at 158–159. 101 Vlad Constantinesco, ‘De la pluralité des présidences dans l’Union européenne’ (2011) L’Europe en formation 71, at 12; See also Novi (n 115 p 42), at 411; Francesco Munari, ‘La Politica estera e di sicurezza comune (pesc) e il sistema delle fonti ad essa relative’ (2011) Il diritto dell’Unione europea 941, at 956. 102 The hr has also additional roles; in particular, he/she is the head of the eu Institute for Security Studies, of the eu Satellite Centre and of the European Defence Agency. These roles are not essential for this analysis and are not addressed here for the sake of brevity.

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­respect to cfsp issues. He/she conducts this policy, in particular by contributing his/her proposals to the development of that policy, and by carrying it out as mandated by the Council (Article 18(2) teu).103 In addition, the hr represents the Union for matters relating to the cfsp, and conducts political dialogue with third parties on the Union’s behalf (Article 27(2) teu). There is a difference, at any rate, between the former and the current High Representative: whereas the old hr merely assisted the Council and the rotating Presidency, the new High Representative is formally conferred powers. The hr shares the power of initiative with each Member State and the power of policy implementation with the Council. The power of external representation in the cfsp field, on the other hand, is exclusive to the High Representative: the rotating Presidency no longer plays any role in this area. Secondly, the hr is ‘responsible within the Commission for responsibilities incumbent on it in external relations’, and participates in the College of the Commissioners as one of its Vice-Presidents (vp), thereby voting on any proposal tabled within the institution (Article 18(4) teu). In addition, he/she is responsible ‘for coordinating other aspects of the Union’s external action’ within the Commission. This presumably means that the High Representative, in his/ her capacity as a Commission vp, coordinates the activities of the Commission with the aspects of external relations that are not incumbent on the latter – in essence, the cfsp. Thirdly, the hr presides over the Foreign Affairs Council (Article 18(3) teu). This new attribution does not enable the hr to adopt legal acts, since the latter are adopted by the institution and not by its President. It is nonetheless relevant, since it permits the hr to participate in a crucial Council formation. The Foreign Affairs Council is indeed responsible for legislative decision-making in most external sectors (cfsp and non-cfsp), and is consequently mandated with ensuring ‘that the Union’s action is consistent’.104 Not only may the hr express his/her views within the institution, but may also direct  its  works, to promote convergence among the representatives of the Member States. Fourthly, the hr leads the eu’s diplomacy. Pursuant to Article 221 tfeu, ­Delegations in third countries and at international organisations are placed under the authority of the High Representative. This is a rather remarkable

103 See also Article 27(1) teu. 104 Council Decision 2009/937/eu, adopting the Council’s Rules of Procedure, oj 2009 L 325/35 (hereinafter: Council Rules of Procedure), Article 2(5).

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provision, in that it places the eu’s permanent representations under the ­authority of the hr, though they operate in cfsp and non-cfsp areas alike.105 The entrustment of so many different roles and powers on the hr has a transparent rationale: enabling him/her to coordinate the ‘supranational’ and ‘intergovernmental’ areas of eu external relations,106 with a view to ensuring greater external action coherence.107 Such a reading of the hr’s mandate is confirmed by several primary law provisions. The already mentioned Article 18(4) teu stipulates that the High Representative should coordinate Commission activities with other actions. The High Representative should also coordinate the actions of the Member States within international organisations, pursuant to Article 34(1) teu.108 More generally, Article 21(3) teu affirms that the Council and the Commission, ‘assisted by the High Representative’, must ensure external action ‘consistency’.109 If, at first sight, the hr may seem capable of effectively promoting coherence, thanks to his/her multiple roles, the multiplicity of his/her tasks complicates his/her activity in practice. The High Representative must indeed perform too many jobs: the one of the former High Representative, the President of the Foreign Affairs Council, the external relations Commissioners, and the chief of the eu diplomacy. The hr may simply lack the resources to effectively discharge his/her mandate. A solution may possibly lie in the delegation of certain activities to another person, such as a ‘deputy High Representative’.110 However, this solution is not explicitly envisaged in either primary or secondary law, and does not seem entirely feasible in practice. Pursuant to the Meroni doctrine, the High Representative cannot delegate the exercise of his/her discretionary powers, ‘­implying 105 The consequences of this provision are discussed in Chapter 6.II.2. 106 Cf. Commission, com(2003) 548 final, A Constitution for the Union, para 18; Barnier and Vitorino in their contribution to the European Convention on the ‘Joint External Action Service’, conv 839/03, at 3. 107 Final Report of the Working Group vii on External Action, conv 459/02, Brussels, 16 ­ December 2002; European Parliament, Resolution on the institutional aspects of setting up the European External Action Service, 22 October 2009 – Strasbourg, P7_TA(2009)0057, preamble, letter J. 108 Moreover, Article 43(2) teu affirms that the hr should ensure coordination between the military and civilian aspects of the security and defence policy. 109 To that effect, see also Article 26(2) teu. 110 On the hr’s ‘deputisation’ see Martin Schmid, ‘The hr/vp and the Organisation of the eeas’ Senior Management’ in Doris Dialer, Heinrich Neisser and Anja Opitz (eds), The eu’s External Action Service: Potentials for a One Voice Foreign Policy (Innsbruck University Press 2014), at 91.

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a wide margin of discretion’ to other organs, since this would jeopardise the distribution of powers set by the Treaties.111 One may argue, therefore, that the High Representative can hardly delegate the exercise of the powers that the Treaties confer on him/her directly, notably making cfsp proposals or adopting decisions implementing cfsp acts. It would seem legally possible, on the contrary, to delegate the performance of some activities that the High Representative performs within other institutions. The Council rules of procedure explicitly provide for a case of (apparent) deputisation. According to Article 5, the hr may ‘ask to be replaced’ in his/ her capacity as President of the fac by the rotating Presidency. This deputisation, at any rate, is imperfect. By relinquishing the exercise of its task in favour of the Presidency, the High Representative renounces to exert one of his/her ­attributions in favour of another authority, which has its own priorities and its own agenda. The rules of procedure of the Commission allow for another imperfect ‘deputisation’. Pursuant to Article 10(2) of such rules, in the absence of a member of the Commission, his/her head of cabinet may attend a meeting of the College of the Commissioners and state his/her views, but cannot vote on his/ her behalf: only Commissioners may vote in the College.112 This problem may be avoided, in theory, if the hr’s deputy were another member of the Commission. President Juncker allowed, in fact, external relations Commissioners to deputise for the High Representative.113 This solution, however, raises ­problems similar to those regarding ‘deputisation’ within the Council: other Commissioners are not subordinated to the High Representative and may pursue different political priorities. This concentration of responsibilities in a single post, and the difficulty in delegating their exercise in practice, generates ‘a huge and relentless workload for one person’.114 Several commentators have indeed criticised the first post-Lisbon High Representative, Catherine Ashton, for not always attending ­Commission College and other important meetings, and for failing to ­develop 111 Meroni v High Authority, Case 9/56, eu:c:1958:7, para 10; See also Tralli v ecb, C-301/02, eu:c:2005:306, para 43; uk v Parliament and Council, C-270/12, eu:c:2014:18, para 41. 112 Article 250 tfeu stipulates, in fact, that the institution acts by a majority of ‘its Members’. Similarly, Article 8(3) of the Commission Rules of procedure affirms that Commission decisions are adopted if a majority ‘of the number of Members specified in the Treaty’ vote in favour, see Rules of Procedure of the Commission, C(2000) 3614, oj 2000 L 308/26 and subsequent amendments (hereinafter: Commission Rules of Procedure). 113 Juncker (n 19 p 63), page 10. 114 eeas Review (n 13 p 3), at 13.

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the eu’s foreign policy.115 Others have been more understanding, noting that the overload of responsibilities makes it difficult for any hr to effectively perform all his/her tasks at once. The hr’s office indeed appears as an ‘impossible job’.116 3 Further Limits of the High Representative as a Coordinator 3.1 Unclear Extent of the hr’s Autonomy The job of the High Representative is also ‘impossible’ because of less evident, but nonetheless cogent, reasons. In the first place, the relationships between the hr and other organs are potentially contradictory, and are not necessarily conducive to the autonomy that the High Representative would need to ­coordinate external relations. This problem is exemplified by the rules governing the hr’s appointment and dismissal. Article 18(1) teu stipulates that the hr is nominated by the European Council, acting by qualified majority, ‘with the agreement of the President of the Commission’. This indicates that the High Representative must enjoy the confidence of both a majority of Member States and of the President of the Commission. Such an arrangement appears logical, considering that the High Representative must collaborate with the Council, where the States are represented, and with the Commission, where he/she works as a Vice-President. The rules of the High Representative’s dismissal are symmetrical to those regarding his/her appointment. Article 18(1) teu explicitly stipulates that the European Council may end the hr’s term of office ‘by the same procedure’ applicable to his/her appointment. This provision should be read along with Article 17(6) teu, whereby the hr must resign, ‘in accordance with the procedure set out in Article 18(1)’, if the President of the Commission so requests. A literal appraisal of these provisions suggests that the hr may be dismissed if both the President of the Commission and the European Council adopt a decision in this sense. This interpretation, however, does not seem entirely satisfactory, since the High Representative would hardly be able to perform his/her coordinating functions if he/she did not enjoy the confidence of the Member States (represented in the European Council), on the one hand, and of the ­Commission, on the other. Therefore, the High Representative should 115 See inter alia Andrew Rettman, ‘From Solana to Mogherini: What Did Ashton Really Do?’ EUObserver (1 December 2014) accessed 19 ­December 2015. 116 See e.g. ‘Solana Leaves Ashton “Impossible Job Description”’ EurActiv (10 December 2009)

­accessed 19 December 2015.

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arguably resign whenever either the President of the Commission or the European Council (or both) request him/her to.117 A potentially more serious interpretative difficulty regards Article 17(8) teu, according to which the High Representative must resign from the duties that he/she carries out ‘in the Commission’ if the Parliament approves a motion of censure. In theory, this means that the High Representative may remain in charge of his/her tasks outside the Commission, i.e. as cfsp executive and President of the fac, even after the adoption of a motion of censure. In practice, such a solution would seem politically unsustainable. After the approval of a motion of censure, the Parliament must be presented with a new College of Commissioners, including a hr/vp. One may doubt whether the European Parliament would approve a new Commission containing a member of the previous Commission which the Parliament itself has censured. The rules of appointment and dismissal suggest that the High Representative is in the midst of an institutional ‘triangle’, comprising the European Council, the Commission, and the Parliament. Hence, one may expect that the High Representative will be subject to pressures in opposing directions. If a hr gave the impression to lean too much on the side of an institution, the others may become hostile and frustrate his/her attempts at eliciting cooperation. Since the Treaties do not regulate the position of the hr in detail, but give him/her an imprecise position within the eu’s institutional architecture, it is for the person who fills in the post of High Representative to establish an independence from sclerotic interests within the institutions.118 A skilful politician may perhaps manage to find equilibrium between the different institutions he/she is linked to. A less than experienced person, on the contrary, may risk being captured in the orbit of either the Council or the Commission, thus ­losing part of his/her potential as a coordinator. 3.2 Imprecise Scope of the hr’s Activities A second limit of the High Representative’s office is that it lacks ‘any legal tools to overcome inter-institutional strife’,119 since its role and activities are not 117 Cf. Gianfrancesco (n 97 p 82), at 748; Andrea Santini, ‘Le nuove figure di vertice dell’Unione europea: potenzialità e limiti’ (2010) Il diritto dell’Unione europea 909, at 918. 118 Alan Dashwood, ‘Article 47 teu and the Relationship between First and Second Pillar Competences’ in Alan Dashwood and Marc Maresceau (eds), Law and Practice of eu E­ xternal Relations (Cambridge University Press 2008), at 103; see also Daniel Thym, ‘The Intergovernmental Constitution of the eu’s Foreign, Security & Defence Executive’ (2011) 7 European Constitutional Law Review 453, at 457–458; Gianfrancesco (n 97 p 82), at 752. 119 Piet Eeckhout, eu External Relations Law (Oxford University Press 2011), at 188.

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clearly defined. This is particularly evident with respect to the hr’s responsibilities within the Commission. Pursuant to Article 18(4) teu, the High Representative is ‘responsible within the Commission for responsibilities incumbent on it in external relations’. A  possible interpretation of this provision is that the High Representative should be responsible for all non-cfsp policies with an external dimension, notably trade, neighbourhood policy, development cooperation, and humanitarian aid. This interpretation, however, seems too extensive, since it would deprive the President of the Commission of the ability to allocate external relations portfolios among the members of the College of the Commissioners, and would ultimately risk undermining the role of the institution in foreign affairs. In practice, a more restrictive interpretation prevailed. President Barroso distributed the portfolios for trade, enlargement, neighbourhood policy, development cooperation, and humanitarian aid to Commissioners other than the High Representative. President Juncker may seem to have adopted a different approach, since he affirmed that the hr should ‘combine national and European tools, and all the tools available in the Commission, in a more effective way than in the past’. Nonetheless, he conferred external relations portfolios to other Commissioners and simply requested that the hr must ‘act in concert’ with them.120 Article 18(4) teu also stipulates that the hr is responsible for ‘coordinating’ other aspects of the Union’s external action. In principle, one may ­suppose that the hr may actually perform a coordinating role, thanks to his/her integration within the Commission. Being a Commissioner, the hr is indeed ­informed about all the activities of the College of the Commissioners, can propose the adoption of acts, and may vote on any proposal.121 President Juncker would seem to have further increased the hr’s coordinating role by asking the Vice-Presidents (including the hr) ‘to steer and coordinate work’ across the Commission in key areas (notably, external relations).122 However, the ‘Mission Letter’ President Juncker sent to Ms Mogherini identifies the coordinating tasks of the hr in a rather vague way (e.g. ‘working closely’ with other Commissioners). The only exceptions regard two specific tasks. First, the hr chairs the Commissioners’ Group on External Action. This group meets at least once a month, and has a variable membership, determined ad hoc by ­either the hr or the Commission President. The hr’s role in this group ­constitutes 120 See Juncker (n 19 p 63), at 10. 121 Commission rules of procedure (n 112 p 86), Articles 8 and 12(2). 122 Jean-Claude Juncker, Mission Letter for Federica Mogherini (2014) .

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an innovation, since the Group of external relations Commissioners in the ­Barroso Commission was chaired by the President himself. This innovation may reinforce the hr’s capacity to enhance coherence: hr Mogherini can, at least in principle, draw the attention of her colleagues to specific issues and foster convergence among them. Secondly, the hr may propose to the President the inclusion of an external relations item on the agenda of the College of the Commissioners. In the absence of such a proposal, ‘as a general rule’, the President does not table an item for discussion. This means that the hr functions as a ‘gatekeeper’ of the external action that may block proposals even before they are discussed in the College; he/she may thus contribute to shape the agenda of the Commission. The innovations introduced by President Juncker appear to reinforce the coordinating mandate of the hr, but are subject to some limits. On the one hand, the President maintains a degree of control over the coordination process, since he may decide on the composition of the Group on External Action, and may include external relations items on the agenda of the College of the Commissioners without the hr’s approval. On the other hand, and most importantly, the innovations introduced by President Juncker may not last beyond his term. The next Presidents of the Commission may revert to the previous practice, taking the coordinating capabilities of the High Representative back to the starting point. It emerges from the analysis that the post of the hr is regulated in a rather  cloudy way: neither its relations with other bodies nor its activities are  ­defined with precision. Given these uncertainties, it would seem that the hr’s ability to bring about coherence in practice is likely to depend more on the physical person that holds the post than on the prerogatives coming with the post itself. This is problematic, since there is no assurance that only  experienced and competent persons may be appointed as High Representative. Even an exceptionally skilled High Representative, at any rate, would stay in charge for a limited period. As famously noted by Jean Monnet: ‘les hommes passent, d’autres viendront qui nous remplaceront. Ce que nous pourrons leur laisser, […] ce sont les institutions’.123 The eu’s external action arguably requires a more ‘institutional’ solution than the hr: an organ whose status and mandate are defined with greater precision, and which has the ability to foster coherence, irrespective of the person that is in charge at any specific moment. 123 Speech, Strasbourg, 11 September 1952.

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An Administration for Coordination: Enter eeas

As shown in the previous sections, the eu is in need of a body that is independent from the main decision-makers, but which is nonetheless capable of coordinating their activities. Such a coordinator would be in a precarious position, since it would have to collaborate and integrate with coordinated authorities, while retaining a space of autonomy. It has been argued, moreover, that political bodies (Council, Commission, and HR) are unlikely to be effective coordinators: striking a balance between collaboration and independence at the political level, in fact, is not easy, given the need to preserve the delimitation of powers set in the Treaties, and the sensitivity of such a delimitation. A more effective balance may perhaps be struck at the administrative level. The practice suggests that administrative governance is managed more pragmatically than the political one. It is well known that, notwithstanding the constitutional division of competences and powers in the eu, there is intensive cooperation among administrative actors in all phases of the policy cycle, from agenda-setting, to decision-making to implementation of policies.124 Hence, one might hypothesise that an administrative organ may be capable of filling the difficult position of foreign affairs coordinator, even if political organs are not. The administration of the High Representative – the European External Action Service – was established precisely to contribute to coordination (1). The eeas appears prima facie as a suitable coordinator, since it seems to be sufficiently autonomous from (2), but capable of influencing the conduct of (3), the main decision-makers of the external action. 1 Establishment of the eeas The eeas is a novel entity in the panorama of eu law, mainly because it has a peculiar mandate. As noted by the European Council shortly before the establishment of the Service, the eeas ‘will, under the authority of the High Representative, provide support to the European Council, the Council and the Commission concerning the strategic overview and coordination necessary to ensure the coherence of the European Union’s external action as a whole’.125 The Service is nonetheless closely linked to pre-existing administrative structures, not least because it was created by merging them. 124 Herwig CH Hofmann and Alexander Türk, ‘The Development of Integrated Administration in the eu and Its Consequences’ (2007) 13 European Law Journal 253, at 254. 125 European Council conclusions, 16 September 2010, euco 21/1/10 rev 1, Annex i para f, (emphases added).

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eu institutions have been setting up external relations administrations for decades. The Commission created bureaucratic departments tasked with the management of foreign affairs since the inception of the integration project, given the need to administer external trade and, later, other policies. Shortly before the Lisbon reform, the Commission had six directorates-general dealing specifically with external relations issues: dg Dev and dg Aidco, managing development cooperation, dg Echo, dealing with humanitarian aid, dg Trade, managing commerce issues, dg Elarg, responsible for enlargement, and dg Relex, whose tasks were connected mainly to the neighbourhood policy and the Delegations in third countries. Besides the services of the Commission, the General Secretariat of the Council set up administrations dealing with external relations issues, notably dg E and the ‘Policy unit’. During the drafting of the European Constitution, the idea was put forward to merge some external relations administrations of the Commission and of the Council into a single body – the European External Action Service – which should have been able to support the new Minister of Foreign Affairs in the performance of his/her tasks. In order to develop a European strategic and ­administrative culture for a European external action, it was also proposed to include in this new body personnel from the diplomatic services of the ­Member States.126 The Constitution provided for the creation of the eeas at Article iii-296(3), which stated that ‘in fulfilling his or her mandate, the Union M ­ inister for ­Foreign Affairs shall be assisted by a European External Action Service’. This provision, which was accompanied by a rather generic Declaration on the procedure for the establishment of the eeas, also affirmed that the Service should have been composed of officials from relevant departments of the General Secretariat of the Council and of the Commission and staff seconded from national diplomatic services.127 The Lisbon Treaty did not innovate significantly with respect to the Con­ stitution. Article 27(3) teu, which replaces Article iii-296(3), stipulates, like its predecessor, that the eeas should assist the High Representative and that its personnel ‘shall comprise officials from relevant departments of the ­General Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic services of the Member States’. Moreover, 126 Iñigo Méndez de Vigo, European Convention, Working Group vii, Working document 55, 3 December 2002, at 4. 127 A discussion on the legal effects of the declaration is not relevant in the context of this analysis, since this instrument addressed procedural issues that never materialised, because the Constitution did not enter into force.

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­Article 27(3) teu provides for the procedure of setting up the Service: ‘the organisation and functioning of the European External Action Service shall be established by a decision of the Council. The Council shall act on a proposal from the High Representative after consulting the European Parliament and after obtaining the consent of the Commission’. It is on the basis of this provision that the High Representative presented the Council with a proposal on the establishment of the eeas in March 2010.128 The hr had prepared this proposal with the aid of an informal group composed of officials from the Commission, the Council, and the Member States – but no representative of the Parliament.129 It is perhaps not surprising, therefore, that the latter institution soon expressed its disagreement with the hr’s proposal, arguing that it did not sufficiently protect the role of the Commission, and did not ensure the accountability of the eeas to the Parliament itself.130 Although the procedure set in Article 27(3) teu did not require the Parliament’s assent, the Parliament sought to obtain a veto power. The Parliament threatened not to approve the amendments to financial and staff management regulations, whose adoption – subject to the ordinary legislative procedure – was indispensable for the eeas to start its operations. Moreover, the Parliament threatened to block the establishment of the eeas through its power of the purse: as noted by a Member of the European Parliament (mep), ‘the Parliament is competent for the budget. That means that the Service can’t have any staff if the Parliament doesn’t approve its budget’.131 Thanks to this strategy, the Parliament managed to be involved in the negotiation of the hr’s proposal, along with the High Representative herself, the Council, and the Commission, thus giving rise to the so-called ‘quadrilogue’.

128 High Representative, Draft Council decision establishing the organisation and functioning of the European External Action Service, Council doc. 8029/10, 25 March 2010. 129 Christoffersen (n 9 p 2), at 102–103; Zuzana Murdoch, ‘Negotiating the European External ­Action Service (eeas): Analyzing the External Effects of Internal (Dis)Agreement’ (2012) 50 Journal of Common Market Studies 1011, at 1017; Doris Dialer, ‘Shaping the Institutional Set-up of the eeas’ in Doris Dialer, Heinrich Neisser and Anja Opitz (eds), The eu’s ­External Action Service: Potentials for a One Voice Foreign Policy (Innsbruck University Press 2014), at 47; Schmid (n 110 p 85), at 84. 130 Christoffersen (n 9 p 2), at 104. 131 Elmar Brok, quoted in ‘Parliament Twists Ashton’s Arm over eeas’ EurActiv (6 November 2010) accessed 19 December 2015. See further Kolja Raube, ‘The European ­External Action Service and the European Parliament’ (2012) 7 The Hague Journal of ­Diplomacy 65, at 70–74.

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The quadrilogue led to a compromise in June 2010, which was followed by the adoption of Council Decision 2010/427/eu, establishing the organisation and functioning of the European External Action Service (hereinafter: Decision 2010/427).132 As a part of the deal with the Parliament, the High Representative adopted a declaration on political accountability, which covers the activity of the hr him/herself, and of the eeas.133 Later, the Council and the Parliament adopted the required amendments to staff and financial management regulations.134 As a consequence of Decision 2010/427, at the beginning of 2011 numerous departments of the Council (dg E, crisis management, policy unit, staff in secondment to Special Representatives – about 400 officials) and of the Commission (dg Relex, external service and part of dg Dev – about 1000 officials) were merged into the new eeas; they were soon joined by an increasing number of national officials seconded to the Service, notably diplomats. The eeas’s main duty, enshrined in Article 27(3) teu, consists of assisting the High Representative. Decision 2010/427 explicitly acknowledges this at Article 2, pursuant to which the eeas must support the High Representative ‘in fulfilling his/her mandates as outlined, notably, in Articles 18 and 27 teu’. Article 2(1) specifies that the Service assists the hr in the conduct of his/her three main activities, i.e. conducting the cfsp, chairing the Foreign Affairs Council, and in his/her capacity as Commission Vice-President. Article 2(1) also recognises that the eeas should support the hr in ensuring ‘the consistency of the Union’s external action’.135 Given this wide mandate, one may hypothesise that the eeas may reduce the problems raised by the multiplicity of the High Representative’s roles. The Service is indeed composed of some 3400 persons at present,136 who may conduct tasks on behalf of their political master. There are, of course, some limits to the eeas’s capabilities. The eeas is an ­administration, therefore it can assist, but not substitute for, the High 132 Council Decision 2010/427/eu establishing the organisation and functioning of the European External Action Service, oj 2010 L 201/30. 133 Declaration by the High Representative on political accountability, oj 2010 C 210/01. 134 Parliament and Council Regulation 1080/2010/eu/Euratom, Amending the Staff Regulations and the Conditions of Employment of other Servants, oj 2010 L 311/1; Parliament and Council Regulation 1081/2010/eu/Euratom, Amending the Financial Regulation as Regards the eeas, oj 2010 L 311/9. 135 This reference to ‘consistency’ is unfortunately placed in the first indent of Article 2(1), which concerns the cfsp. It stands to reason, at any rate, that the eeas’s coordinating mandate should be transversal to the external action. 136 European Court of Auditors, The Establishment of the European External Action Service (2014) , accessed 19 December 2015, para 8.

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­ epresentative in the performance of his/her tasks. This means, in particular, R that the Service cannot vote in the College of the Commissioners on behalf of its master, and cannot adopt the (cfsp) acts that the High Representative should approve in his/her own name. What is more, the eeas may encounter practical obstacles, notably the lack of adequate resources. The Council decided that the establishment of the eeas ‘should be guided by the principle of cost-efficiency aiming towards budget neutrality’, as noted in the preamble of Decision 2010/427.137 This means that, in principle, the expenses connected to the functioning of the eeas should be similar to those which were incurred by eu institutions in the conduct of external relations before the Lisbon Treaty. This parsimonious approach may seem reasonable at a time of economic crisis, but is unrealistic. The eeas is bigger than the sum of pre-Lisbon administrations, since it is also composed of ‘staff seconded from national diplomatic services of the Member States’. The eeas’s increased size is indeed justified by its mandate. The presidency of the foreign affairs Council, for example, is a function that was previously performed by the rotating Presidency: the transfer of functions should logically entail a transfer of budget allocations, from the national to the eu level.138 More generally, the eeas has a novel and most challenging task, i.e. coordinating the numerous actors operating in the field of foreign affairs. It would seem logical that it should be given the requisite manpower (and financial resources) to discharge its mandate. Apparently, the Member States have acknowledged this problem, at least in part, to the extent that they do not seem to have insisted on a strict application of the ‘principle’ of budget neutrality. Between 2011 and 2014, the administrative expenses of the eeas have grown by 10%.139 Such a lax application of the 137 Decision 2010/427 (n 132 p 94), preamble, recital 15. 138 See Patrick Child, eeas Managing-Director for Finance and Administration, cit. in uk House of Lords, Inquiry on European External Action Service (Questions 158–197) (2013) accessed 10 November 2015, at 25. 139 The 2011 eeas budget had been constituted by pro-rata transfers from the Commission and the General Secretariat of the Council for a total amount of 464.1 million Euros. The following year, the eeas’s administrative budget was already 488.8 million Euros; see the hr/vp answer to parliamentary questions E-003191/12, E-003194/12, E-003193/12, oj 2013 C 124 E. In 2014, the budget had increased to 519 million Euros, see European Court of Auditors (n 136 p 94), para 9; see also uk House of Lords, The eu’s External Action Service: 11th Report of Session 2012–2013 (The Stationery Office 2013) accessed 10 November 2015, at 14–15.

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‘principle’ of budget neutrality is also explained by the fact that this rule is political, more than legal: the only reference to this ‘principle’ is contained in the preamble of Decision 2010/427.140 In any event, one may hope that, in the future, the eeas’s resources will be determined, not by reference to an abstract notion of ‘budget neutrality’, but in light of the actual needs of eu foreign policy. The Service is an instrument that should foster the ‘effectiveness of action by the Union’ (Article 23(2) teu). The Member States, which willed the (political) end, should will the (financial) means, too. Besides these practical considerations, one may hypothesise that there may be also legal restraints for the attainment of the eeas’s objectives. Given the eeas’s function of coordination, one may wonder, in particular, whether the Service is sufficiently autonomous from coordinated bodies and whether it may actually coordinate their activities. 2 Is the eeas Autonomous? In order to coordinate eu foreign affairs, the eeas should arguably be autonomous, at least to a certain extent, from the main decision-makers of the external action. The Service’s status and position in the eu’s institutional architecture, however, constitute a puzzle. The eeas is hardly comparable to the other organs of the Union: since its inception, it was clear that the eeas constituted an ‘innovative sui generis solution’.141 Primary law does not explicitly address the eeas’s status, probably because the authorities involved in Treaty-making considered that the way the Service would have been set up was ‘essentially of an administrative nature’, and should therefore not be regulated in primary law.142 During the preparatory work on the establishment of the Service, the question arose as to whether this should have been ‘an autonomous service’, neither in the Commission nor in the Council General Secretariat, or whether it should be ‘partly attached to ­either or both’.143 The only fact on which everyone seemed to agree was that the eeas would not have been a new ‘institution’, but a service under the ­authority of the Foreign Minister, ‘with close links to both the Council and the Commission’. The nature of those links, at any rate, was left unaddressed.144 140 Even if it the preamble of Decision 2010/427 (n 132 p 94) were binding, at any rate, it would still refer only to the ‘establishment’ of the eeas, not to its development. 141 Council doc. 9956/05, para 6. 142 com(2003) 548 final (n 106 p 85), para 19. 143 Commission and High Representative, Issue paper on the European External Action ­Service, Annex ii to Council doc. 9956/05, para 10. 144 Council doc. 9956/05, para 6.

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Decision 2010/427 would seem to have clarified the eeas’s status, by affirming at Article 2(1) that the eeas is ‘a functionally autonomous body of the European Union, separate from the General Secretariat of the Council and from the Commission’. This provision, however, raises further problems: which authorities should the eeas be autonomous from? What is the extent of the Service’s autonomy in administrative and operational matters? The first question is not exceedingly problematic. Evidently, the eeas should be autonomous from both the Council and the Commission, as noted in Article 2(1). If the Service were too closely linked to either institution, in fact, it would be hardly capable of discharging its coordination mandate. If eu Members perceived the eeas as the longa manus of the Commission, they would treat it as they treat the institution itself, that is, with circumspection. If the Commission perceived the eeas as a body under the control of the Council, it would be likely to keep it at arm’s length, to preserve its prerogatives and its ‘supranational’ approach to decision-making. For similar reasons, it may be argued that the eeas should be autonomous from the other main centres of power of the external action, including the European Parliament, the ­European Council and, especially, the Member States. At first sight, the idea that the eeas should be autonomous from the States and intergovernmental organs may appear bizarre. The Service assists the High Representative, who is the main executive organ of the intergovernmental strand of eu external relations, i.e. the cfsp. The eeas may thus appear as a ‘cfsp body’, linked to intergovernmental bodies, and to the Member States. If this were true, the eeas would be likely to promote the priorities of ‘its’ ­policy (the cfsp) in the rest of the external action. Instead of being a coordinator, it would actually function as a tool for the ‘intergovernmentalisation’ of ­supranational policies. However, this perspective appears somewhat simplistic. In the cfsp field, in fact, the eu functions mostly as a forum, where the Member States define, by unanimity, the policies they want to conduct in common. The decision-­making organs of the cfsp (Council and European Council) are indeed collective organs that foster coordination among their Members.145 This suggests that the cfsp, despite its name, is not truly a ‘policy’: it is actually a mechanism for increasing the convergence of the positions taken by the States in their national foreign policies.146 In the cfsp sector, the eeas does not simply formulate 145 On the coordinating role of collective organs, see above, Chapter 2.II.2. 146 Cf. Constantinesco V and Petculescu I, ‘La Personnalité de l’Union’ in Vlad Constantinesco, Yves Gautier and Valérie Michel (eds), Le Traité établissant une Constitution pour l’Europe (Presses Universitaires de Strasbourg 2005), at 69: ‘la pesc s’analyse d’avantage

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and conduct ‘its’ policy, but must first and foremost seek to coordinate the positions of eu Members. Therefore, the eeas’s mandate to coordinate the whole of eu external relations, in their cfsp and non-cfsp aspects, means that the Service must simultaneously coordinate the policies of the Member States (in the cfsp area) with those of the Union proper (in the non-cfsp fields). The Service may succeed only if it elicits trust from all the authorities involved (including the Council and the States), and it can do so only if it proves its autonomy from them. There are, of course, reasons why one may doubt the eeas’s autonomy vis-à-vis the States in practice (and they are discussed in the second part of the book). However, it would not seem appropriate to assume a priori that the eeas is simply an intergovernmental tool. Another seemingly counter-intuitive consideration relates to the relationship between the eeas and its master. Although the Service should assist the High Representative, it should also maintain some margin of autonomy from him/her. If the hr proved too close to the interests of one (or more) Member State(s), he/she would lose the trust of the other States and of the Commission: if the eeas were perceived as a mere ‘extension’ of the hr, it would risk losing legitimacy, too. A Service that enjoys some autonomy from its master, on the contrary, may have the chance to retain some credibility, even when its master does not. This is not a totally unrealistic scenario, and, in fact, is not an entirely new one: the General Secretariat of the Council, for instance, is known to distance itself from the rotating Presidencies that use their role to foster ­national interests, to be more capable of operating as an ‘honest broker’ between the Member States.147 comme une série de mécanismes destinés à favoriser la recherche d’une certaine unité des positions et des actions des diplomaties nationales au sein de l’Union, que comme l’attribution à celle-ci d’une véritable compétence propre et autonome en matière de politique étrangère’. To that effect, see also Geoffrey Edwards, ‘Common Foreign and Security Policy: Incrementalism in Action?’ in Martti Koskenniemi (ed), International Law Aspects of the European Union (Martinus Nijhoff 1998), at 3. These considerations are applicable mostly to the main decision-making phase, i.e. the ‘legislative’ one; in the phase of implementation, the cfsp admittedly becomes more centralised, cf. Novi (n 115 p 42), at 213–214. Novi also argues that, after the entry into force of the Lisbon Treaty, the cfsp would have become a fully-fledged policy of the Union (‘una vera e propria politica dell’Unione’), because of the entrustment of a single legal personality on the Union, see id., at 440; cf. Id., at 241. I respectfully disagree with this argument, since the cfsp maintains its distinct normative features, and consequently remains a mechanism for the coordination of the Member States’ positions. Cf. Panos Koutrakos, eu International Relations Law (Hart 2006), at 494. 147 See Peter Nedergaard, European Union Administration: Legitimacy and Efficiency (Martinus Nijhoff 2007), at 174.

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The second question mentioned above – regarding the extent of eeas’s autonomy – raises more complicated issues, which require greater attention. They are addressed at length in Chapter 3, dealing with the eeas’s administrative autonomy, and in Chapter 4, which discusses the eeas’s operational autonomy. 3 Does the eeas Perform Coordinating Activities? To effectively ensure coordination, the capability to act autonomously is obviously insufficient: it is also necessary to actually steer the decision-making process, by exerting influence on the conduct of other authorities. This explains why, coming to the eeas, it is important to address the question ‘which activities does the Service perform?’ Neither Article 27(3) teu nor Decision 2010/427 provide straightforward responses to this question. Of course, the eeas, being a service, must assist other organs, i.e. the High Representative, as well as the Commission and the Council, in the conduct of their operations. It is uncertain, however, what the eeas actually does to assist these other authorities, and whether it may actually influence their operations. The scope of the Service’s intervention is unclear, too: although Decision 2010/427 explicitly allows the eeas to intervene in certain areas, notably development cooperation (at Article 9), it does not regulate the Service’s involvement in the management of the other strands of the eu’s external action. It would seem established, at any rate, that the Service should cooperate with other entities: Article 3 of Decision 2010/427 indeed stipulates that the eeas must ‘work in cooperation’ with ‘the diplomatic services of the Member States’, ‘the General Secretariat of the Council’, and ‘the services of the Commission’, in order to ‘ensure consistency’ in the external action. The eeas must also ‘extend appropriate support and cooperation’ to the other institutions and bodies of the Union, ‘in particular to the European Parliament’. The duty of cooperation contained in Decision 2010/427, however, raises some interpretative issues, with respect to its legal effects, as well as its content, and subjective and substantive scope. Moreover, the practical modalities for the implementation of cooperation are not explicitly addressed by the Decision; consequently, the actual nature of the eeas’s cooperation remains rather nebulous. The eeas would also seem to integrate with other authorities. There are ­occasions in which the Service adopts the organs of other bodies as its own. The most evident case is the eu Delegation, which is under the authority of the hr – and of the eeas – but which is staffed mainly by Commission officials. These arrangements lead one to wonder whether this form of integration is effective in promoting coordination, and if it is compatible with the distribution of powers set in the Treaties. Conversely, there are situations in which it is the

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eeas that integrates within the administration of other bodies: the most obvious case is the preparation of implementing acts in the field of development cooperation. At first sight, the Service would seem to operate as if it were a department of the Commission, but it is unclear whether the institution may control the Service, or if the latter may steer the conduct of the institution – and in which sectors the eeas actually operates. Of course, the compatibility between the eeas’s integration within other authorities and the distribution of powers set in the Treaties may potentially be problematic in this case too. In order to clarify these issues, the third part of this book investigates the ­activities of the eeas, discussing the arrangements regarding its cooperation with other authorities (in Chapter 5), and its integration with them (in Chapter 6).

PART 2 Status of the eeas: A Functionally Autonomous Body

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Introduction to Part 2: Functional Autonomy, an Elusive Concept The first part of the analysis has shown that the eeas was created to link all the major eu actors and policies, and is expected to achieve what no other entity in the eu’s history has managed to deliver: a coherent external action. To reach its goal, the eeas must coordinate different decision-makers, despite the separation of their competences and powers. It has been argued that the Service is likely to succeed in its activity of coordination only if it enjoys some autonomy from the principal actors of eu foreign policy. This autonomy may indeed give the eeas the ability to mediate between, and foster cooperation among, eu bodies and Members.1 In other words, if the eeas is to promote coherence in eu external relations, it should be, first of all, autonomous from the other actors of eu foreign policy. At first sight, the eeas may seem not to have any possibility to be autonomous, since it is indeed a service, i.e. a ‘department’2 or ‘administration’,3 which assists the High Representative and supports the Council and the Commission. The services of the eu are simply the conglomerates of persons and material resources that support institutions, bodies, offices, or agencies in the performance of their tasks. Consequently, they are functionally dependent on the entities they support, cannot be subject to rights and obligations, and are not attributed powers.4 In other words, ‘administrations’ do not have an autonomous existence in the legal order of the Union. They represent an ‘extension’ of the institutions, body, agencies, or offices that they assist: only these entities, and not their services, adopt legal acts, are subject to rights and obligations, and can stand before the Court. 1 See Chapter 2.ii.2. 2 See European Court of Auditors Secretariat General – Translation Directorate, Misused English Words and Expressions in eu Publications, at 59, ­accessed 18 November 2015. 3 Cf. Article 298 tfeu. 4 Cf. Camós Grau v Commission, T-309/03, eu:t:2006:110, para 66; Order GL2006 Europe v Commission and Olaf, T-435/09 R, eu:t:2010:88, paras 14–16; Order Technoprocess v Commission and Delegation of the European Union in Morocco, T-264/09, eu:t:2011:319, para 70; Order Elti doo v Delegation of the European Union to Montenegro, T-395/11, eu:t:2012:274, para 36. See further Chapters 3.ii.1 and 4.i.2. The organs that assist the Council, notably Coreper, are similar to administrations, from a legal perspective, since they do not have powers or personality of their own – with the exception of Coreper’s ability to adopt procedural decisions in cases provided for in the Council’s Rules of Procedure, see Article 240(1) tfeu. © koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004323612_006

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This explains why neither the legislature nor the literature has paid particular attention to the position of services so far, including those dealing with external relations, such as Commission dg Relex. As legal scholars generally refrained from analysing the position and role of these services, so one may perhaps be tempted to avoid studying the body that was formed by merging them, i.e. the eeas. However, such an approach would not be appropriate, since the eeas is not a service like the others. The status of the eeas had been debated for years before its establishment. Some Member States wanted the eeas to be an essentially intergovernmental body close to or part of the Council. The European Parliament, on the contrary, wanted the eeas to be close to or part of the Commission.5 The Parliament indeed feared that the eeas could become ‘a new bureaucracy located in the middle between the Council and the Commission which, in the long term […] would lead a life of its own and would become an independent kingdom outside our control’.6 In order to reach a compromise between these views, the legislature gave the eeas an ‘indeterminate’7 or ‘sui generis’ status.8 In other words, decision-makers have agreed to disagree and, as it often happens, they concealed their disagreement under a layer of ambiguous provisions. Chief among them is Article 1 of Decision 2010/427. This provision defines the eeas as a ‘functionally autonomous body of the European Union, separate from the General Secretariat of the Council and from the Commission with the legal capacity necessary to perform its tasks and attain its objectives’. This definition is quite problematic: ‘functional autonomy’ does not have a generally accepted definition in eu law. Does the eeas’s ‘functional autonomy’ imply its ability to act independently in the eu’s legal order? Or is the eeas akin to other eu administrations? This part of the analysis seeks to elucidate the status of the eeas and the margins of its autonomy, thereby shedding light on the nature of its relations with other eu organs and its position in the institutional structure of the external action. It does so by using the framework elaborated in Chapter 2, which distinguished between administrative autonomy (the capacity to manage internal issues) and operational autonomy (the ability to conduct substantive operations free from external control). Consequently, the investigation begins in Chapter 3 by discussing the administrative autonomy of the eeas, and continues in Chapter 4, addressing its operational autonomy. 5 See De Baere and Wessel (n 15 p 4); Peter-Christian Müller-Graff, ‘The European External Action Service: Challenges in a Complex Institutional Framework’ in Inge Govaere and others (eds), The European Union in the World: Essays in Honour of Marc Maresceau (Brill | Nijhoff 2014), at 124. 6 European Parliament debate, 21 October 2009, cre 21/10/2009 – 8. 7 De Baere and Wessel (n 15 p 4). 8 Van Vooren (n 3 p 1), at 477–478.

chapter 3

Administrative Autonomy of the eeas As noted in Chapter 2, administrative autonomy has pivotal importance for a coordinator: an organ that does not control its own staff and budget can hardly operate in an independent fashion. If it does not operate independently, it is not perceived as neutral and is unlikely to be trusted by other authorities – something that impairs its ability to coordinate. The setup of the eeas confirms that administrative autonomy matters, to the extent that this topic became the subject of ‘major controversy’ between the Parliament and the Council during the setup of the Service.1 The Parliament wanted the Service to be ‘in administrative, organisational and budgetary terms linked to the Commission’,2 presumably because that would have increased the ep’s control over the eeas. At the same time, some Member States insisted that the eeas should have been administratively autonomous from the Commission, probably because they did not want the institution to exert administrative control over a service – the eeas – that has responsibilities in the cfsp area, including the Common Security and Defence Policy.3 It is not clear, at first sight, which point of view prevailed in practice. ­Decision 2010/427 does not explicitly define the eeas as administratively autonomous. One may perhaps read the conferral of ‘functional’ autonomy to the Service as an acknowledgement of its administrative independence. The legislature has indeed used the expression ‘functional autonomy’ to describe a body’s ability to self-organise, especially in the case of decentralised agencies.4 The cjeu has also used the expression ‘functional autonomy’ in a similar way, when it discussed the relationship between eu institutions and their servants.5 1 Christoffersen (n 9 p 2), at 106, 125. 2 See the Working Document by the Members of the European Parliament Elmar Brok and Guy Verhofstadt on a Proposal for the Estabslishment of the eeas, 6 April 2010 accessed 27 December 2015, at 2. 3 Cf. Christoffersen (n 9 p 2), at 99. 4 Parliament and Council Regulation 294/2008/ec establishing the European Institute of ­Innovation and Technology, oj 2008 L 97/1, preamble, recital 15; Council Regulation 768/2005/ec establishing a Community Fisheries Control Agency, oj 2005 L 128/1, preamble, recital 37. 5 See AB v Finanzamt für den 6., 7. und 15. Bezirkparagraphs, C-288/04, eu:c:2005:526, para 26; AG Mengozzi in Commission v Council, C-28/12 (n 61 p 73), paras 40 and 57.

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The European Court of Auditors affirmed in 2014 that the ‘The eeas is independent for administrative matters’.6 One may wonder whether this statement is accurate, and what this ‘independence’ means in practice. The present chapter seeks to verify the extent of the eeas’s autonomy in administrative matters, discussing firstly its ability to adopt internal acts relating to its administration (Section i), and then its capacity to interact with external organs and subjects with respect to administrative issues (Section ii). i

eeas’s Ability to Adopt Internal Administrative Decisions

The capacity to adopt purely internal acts is essential for any organ. It is indeed through internal acts that a body defines its organisation, its procedures, its relationship with its own staff, and the use of its financial resources. Differently from eu agencies or institutions, the eeas has limited power of selforganisation, since it cannot adopt its rules of procedure (1). The Service has nonetheless an ample degree of autonomy in other crucial administrative areas, notably staff management (2), budget implementation (3), and information security (4). 1 A Limited Power of Self-Organisation The word ‘autonomy’ (from auto-nomos, i.e. self-law) suggests a connection between this concept and the capacity to define one’s own rules. Such a capacity, in the case of an organ of an international organisation, is expressed mainly by the power of self-organisation.7 eu institutions are autonomous in this sense, since they can adopt their own rules of procedure, to ensure that both they and their departments operate properly.8 By adopting their rules of procedure, they can indeed define some of the most important norms that govern their internal functioning. For instance, they determine their voting ­arrangements, the procedures for agenda-setting, and the organisation of their 6 European Court of Auditors (n 136 p 94), para 8. 7 Cf. Sereni (n 59 p 72), at 278. 8 More precisely, this is the case of the Parliament (Article 232 tfeu), of the European Council (235(3) tfeu), of the Council (240(3) tfeu) and of the Commission (Article 249(1) tfeu). Cf. AG Mengozzi in Commission v Council, C-28/12 (n 61 p 73), para 55. The power of self-­ organisation of eu institutions, at any rate, finds a limit in the protection of institutional balance, see Jean-Paul Jacqué, ‘Introduction’ in aavv (ed), Le Parlement européen. Le C ­ onseil. La Commission. La Cour des comptes. Le Comité économique et social. Le Comité des régions. La Banque européenne d’investissement. Le Fonds européen d’investissement (Editions de l’Université de Bruxelles 2000), at 14–15.

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departments.9 Is it possible that, by qualifying the eeas as a ‘functionally autonomous’ body, the legislature intended to recognise the Service as capable of defining its own rules? This would not seem to be the case, since the eeas is a service, and under eu law services have no power to organise how they are to function.10 Furthermore, Article 27(3) teu makes clear that the organisation and functioning of the eeas is defined by a decision of the Council. In fact, Decision 2010/427 determines the main aspects of the Service’s internal organisation. This instrument determines, firstly, the internal hierarchy of the eeas, by placing at its top an Executive Secretary-General, who may take ‘all measures’ necessary to ensure the functioning of the eeas and who ensures ‘coordination’ between its departments;11 the secretary-general is assisted by two Deputies.12 The ­Decision also envisages the creation of the post of Director-General for budget and administration, who is responsible, under the authority of the hr, for the administrative and internal budgetary management of the eeas.13 Then the Decision defines the organisation of the eeas’s departments, by dividing the Service in two strands: the 139 Delegations, on the one hand, and the central administration on the other.14 Furthermore, the Decision defines some details of the eeas’s central administration, by stipulating that it comprises a number of directorates-general, including ‘geographic desks’ and ‘multilateral desks’, as well as a directorate-general for administrative matters.15 The norms adopted by the Council are complemented by acts of the High Representative, who has defined the organisational aspects that are not dealt with by Decision 2010/427. For instance, Catherine Ashton created the positions of ‘Managing-Directors’, who are eeas officials hierarchically placed between the deputy Secretaries-General and the Directors (who are, in turn, above the 9

See, e.g., Council rules of procedure (n 104 p 84), Articles 3, 9; Commission rules of procedure (n 112 p 86), Articles 6, 8, 21–23. 10 The eeas is similar to an eu administration not only because of its nomen, but also ­because of its mission. As the administration of an eu institution ‘supports’ its principal (ex Article 298 tfeu), so the eeas ‘assists’ an organ of the Union (i.e. the High ­Representative) in the performance of its tasks (Article 27(3) teu). 11 Decision 2010/427 (n 132 p 94), Article 4(1). 12 Id., Article 4(2). 13 Id., Article 4(3). 14 Id., Article 1(4). 15 Id., Article 4(3)(a). The Decision also stipulates that the eeas comprises the pre-­existing cfsp structures, i.e. crisis management organs, and affirms that ‘the specificities of these structures, as well as the particularities of their functions, recruitment and the ­status of the staff shall be respected’. See further Chapter 6.II.1.2.

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Heads of Division). She also set up a ‘Corporate Board’, i.e. a structure comprising the Secretary-General, its deputies, and the Director-General for budget and administration (who was named as ‘Chief Operating Officer’). The Board should have served to represent the constituencies that make up the eeas, and allow them to smoothly divide work between them. However, this body has allegedly created confusion, blurring lines of reporting and the division of tasks among its Members.16 Federica Mogherini opted for a more traditional hierarchy, with the sole Executive Secretary-General at the top (who performs the functions previously entrusted to the Executive Secretary-General and to the Chief Operating Officer).17 Curiously, hr Mogherini would seem to have interpreted her power of organisation in a rather extensive manner, to the ­extent that she decided that the eeas should have, not two deputies SecretaryGeneral, as required by Decision 2010/427, but three.18 Only the organisational aspects that are defined neither by Decision 2010/427 nor by the High Representative may be determined by the Service itself. For example, Decision 2010/427 does not indicate how the geographic divisions should be structured, how many dgs should exist, or which topics should be covered by the eeas.19 This allowed the acting Chief Operating ­Officer to adopt a Decision, in early 2015, on the change of the organisational chart of the Service, through which he created a new division, responsible for relations with Turkey.20 Although the eeas has limited autonomy in organisational terms, one should not assume that it lacks administrative autonomy in toto. Autonomy has indeed several dimensions other than the ability to adopt the rules of procedure: different authorities have different kinds of autonomy. The European Central Bank and eu decentralised agencies constitute the main cases in point: primary and secondary law severely restrain the self-organising capacity of these authorities.21 Nevertheless, they are usually described as ‘functionally 16 Wouters and others (n 1 p 1), at 22. 17 See the eeas’s organisation chart, at accessed 18 December 2015. 18 ‘High Representative Federica Mogherini announces adoption of a modified organisational chart of the eeas’, press release, accessed 17 December 2015. 19 Wouters and others (n 1 p 1), at 21. 20 This instrument, numbered as admin(2015) 7, is available in the eeas register, accessed 19 December 2015. 21 The founding instruments of decentralised agencies, in particular, define their internal hierarchy and structure (e.g. ‘management board’, ‘executive board’, ‘executive director’) as well as some of the procedures they have to apply (for instance, in respect of budget

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autonomous’,22 since they can independently adopt other kinds of administrative acts – acts that even eu institutions may be ‘powerless’ to take.23 The next paragraphs elucidate different dimensions of administrative autonomy, and discuss the eeas’s capabilities in these areas. 2 Staff Management Capacity Being artificial entities, public authorities can act only through the physical persons that operate on their behalf. Therefore, it is of paramount importance that they be capable of selecting, instructing, and eventually demoting or ­dismissing the persons that compose their staff. It is also important that public bodies be capable of exerting exclusive influence on their own staff: if that were not the case, the actions of a body would be de facto directed by another subject. In order to define the autonomy of an eu body in staff management issues one should verify, firstly, whether that body is capable of adopting the rules that apply to its personnel. Some eu organs can indeed adopt the provisions that regulate the relationship between them and their staff. This is the case, in particular, of decentralised agencies and of the European Central Bank.24 Other bodies enjoy lesser autonomy in this respect, since the relationship with their staff is defined by the legislature.25 The main instruments in this area are: (i) the Staff Regulations of Officials of the European Union (hereinafter: Staff Regulations) which concern permanent personnel, and (ii) the Conditions of Employment of other Servants of the eu (ceos), which regard temporary personnel. Both instruments are annexed to Regulation 259/68/ Euratom/ecsc/eec.26 and access to document issues). For example, see Regulation 526/2013/eu concerning the European Union Agency for Network and Information Security (enisa) oj 2013 L 165/41. 22 Cf. Plufgradt v European Central Bank, T-178/00 and T-341/00, eu:t:2002:253, para 48. 23 See Hussein Kassim, ‘“Mission Impossible”, but Mission Accomplished: The Kinnock ­Reforms and the European Commission’, Reforming the European Commission (Taylor and Francis 2013). 24 Plufgradt v European Central Bank, T-178/00 and T-341/00, eu:t:2002:253, para 48. 25 Because of this reason, Kassim defines the Commission as a ‘dependent institution’, see Kassim, ‘“Mission Impossible”, but Mission Accomplished: The Kinnock Reforms and the European Commission’, at 27. 26 Council Regulation 259/68/Euratom/ecsc/eec oj 1968 L 56/1, as amended, in particular, by Regulation 1080/2010 (n 134 p 94). A consolidated version of the Regulation is presently available at the address accessed 15 November 2015.

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The Staff Regulations and the ceos are applicable to all eu institutions (save for the European Central Bank), as well as to other bodies that are treated as ‘institutions’ for staff purposes, such as the European Economic and Social Committee and the Committee of the Regions.27 Pursuant to Article 6(2) of Decision 2010/427, the Staff Regulations and the ceos apply to the eeas too. The legislature implemented this provision by adopting Regulation 1080/2010/eu,28 which stipulates that the Service is ‘treated as an institution’ for matters relating to its staff.29 This may seem to indicate that the eeas is on the same footing as most institutions for staff management purposes. However, a closer inspection of Decision 2010/427 suggests that the eeas’s discretion is restrained by the activity of the High Representative. eu institutions can adopt measures that implement the Staff Regulations and the ceos, whereas Decision 2010/427 enables the High Representative (and not the eeas) to adopt acts that complement or implement the Staff Regulations and the ceos.30 On the basis of this empowerment, the High Representative has adopted, in particular, decisions in the procedure for the appointment of eeas staff31 and on the rules applicable to national experts seconded to the eeas.32 The second, and most important, aspect of a body’s autonomy in staff management regards its ability to adopt acts addressed to its staff. The Staff Regulations and the ceos allow ‘institutions’ to adopt crucial decisions addressed to individuals working for them, including the decision to hire a person,33 to send him/her instructions, and to assign him/her to perform public service responsibilities.34 Each institution must delegate the exercise of the power of staff 27

The list also includes: the European Ombudsman, the European Data Protection Supervisor, as well as the eeas itself (see infra), see Articles 1b of the Staff Regulations (n 26 p 109). 28 See n 134 p 94. 29 Decision 2010/427 (n 132 p 94), preamble, recital 8. See also Regulation 1080/2010/eu (n 134 p 94), Article 1(6)(a) and Article 2(5)(b). See also Staff Regulations (n 26 p 109), Article 1b(a); ceos (n 26 p 109), Article 2(e). 30 See Decision 2010/427 (n 132 p 94), Article 6(3), (8), (10) and (12). 31 hr Decision establishing the rules applicable to National Experts Seconded to the eeas, oj 2012 C 12/8. 32 Decision hr(2011) 005 Establishing and Laying Down the Rules of Procedure for the Consultative Committee on Appointments to the European External Action Service, 9 March 2011, not published in the oj. 33 AB v Finanzamt für den 6., 7. und 15. Bezirkparagraphs (n 5 p 105), para 26. 34 See, inter alia, Lux v Court of Auditors, Case 69/83, eu:c:1984:225, para 17; Ojha v Commission, C-294/95 P, eu:c:1996:434, para 40; See also Von Bonkewitz-Lindner v Parliament, T-33/90, eu:T:1991:59, para 88. Autonomy was also recognised in the context of

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management to one of its officials, who has exclusive power to appoint, instruct, and dismiss the staff of his/her institution (unless he/she sub-delegates the exercise of this power to other officials within his/her institution). The Staff Regulations define this official as ‘appointing authority’, while the ceos label him/her as ‘Authority Empowered to Conclude Contracts of Employment’. For the sake of simplicity, any reference to the ‘appointing authority’ in the text is intended to cover the Authority Empowered to Conclude Contracts of Employment too. Despite its qualification as an ‘institution’ for the purpose of the Staff Regulation and the ceos, the eeas cannot decide on which of its officers it may entrust the role of appointing authority. Article 6(5) of Decision 2010/427 indeed affirms that ‘the powers conferred on the appointing authority’ in respect of the eeas are ‘vested in the High Representative’.35 Hence, eeas staff may take instructions from both the Service’s officials and the High Representative (Article 6(4)). Nonetheless, one may argue that the eeas remains formally ­autonomous in this area. The appointing authority cannot adopt legal acts of his/her own, but he/she always acts on behalf of the institution he/she represents. This suggests that the hr operates as a representative of the Service, and not in his/her own name. The practice confirms this interpretation. In 2010 the High Representative adopted Decision hr(2010) 002 on the exercise of powers conferred by the Staff Regulations and by the ceos.36 The preamble of this Decision explicitly affirms that this act was adopted by the hr in her capacity as appointing authority ‘of the European External Action Service’.37 eeas’s formal autonomy was recognised by the Civil Service Tribunal in the  De Loecker v eeas case.38 The applicant, a national diplomat seconded

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­compensation for damage caused by its institutions and by its servants in the performance of their duties, see Sayag v Leduc et al., Case 9/69, eu:c:1969:37. Article 95 of the Staff regulations (n 26 p 109) confirms this, by affirming that the powers ­conferred on the Appointing Authority shall be ‘exercised’ by the High Representative in respect of staff of the eeas. Decision of the High Representative hr(2010) 002 on the exercise, delegation and subdelegation of powers conferred by the Staff Regulations on the appointing authority and by conditions of employment of other servants on the authority empowered to conclude contracts of employment, 17 December 2010, not published in the oj. The legal bases of this Decision are Article 2 of the Staff Regulations (n 26 p 109) and Article 6 of the ceos (n 26 p 109), which define the role of the appointing authority and of the authority authorised to conclude contracts of employment. Article 6(5) of the eeas is also listed as a legal basis, in so far as it provides for the entrustment of the function of appointing authority on the hr. De Loecker v eeas, F-78/13, eu:f:2014:246.

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to the eeas, demanded the annulment of a decision, through which he was transferred from the post of Head of Delegation in Burundi to a (less prestigious) post in Brussels. The applicant acknowledged that the decision had been adopted by the High Representative, acting in her capacity as appointing authority of the eeas.39 Significantly, he brought action against the eeas, and not against the High Representative. The eeas did not oppose this aspect of the applicant’s argument. The Tribunal also supported this view, noting that the Decision to transfer the applicant had been adopted by the High Representative acting in her capacity as eeas appointing authority.40 Once it established that the eeas is formally autonomous regarding staff issues, one may wonder whether it is equally autonomous in practice. In most cases, the eeas appears truly independent. According to Decision hr(2010) 002, the High Representative delegates all appointing authority powers to the Chief Operating Officer of the Service (now replaced by the Executive ­Secretary-General).41 A member of the eeas staff thus functions as authorising officer de facto, and may delegate the exercise of this function to l­ ower-ranking staff. It is safe to argue, therefore, that the eeas is generally capable of managing staff issues independently.42 Nonetheless, the eeas’s autonomy is subject to some limitations in practice. In certain occasions, the hr may actually exercise his/her staff management powers. Article 2(1) of Decision hr(2010) 002 stipulates that the hr delegates all his/her powers with the exception of those regarding the appointment, transfer, promotion, management of disciplinary procedures, and termination of service for ‘Heads of Delegation and positions above the level of Advisor and Head of Unit’. Probably, this means that the High Representative personally takes the decisions relating to the top staff of the Service. The hr might also be involved in the decisions relating to lower ranking officials, i.e. Advisors and Heads of Unit. According to Article 2 of Decision hr(2010) 002, the hr is ‘informed’ of the decisions concerning these members of the staff.43 This ­suggests that the hr may at least monitor the decisions of his/her subordinates 39 40 41 42

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Id., para 11. Id., para 15. The decision is published neither in the oj, nor in the eeas register. This seems largely confirmed by the empirical analysis conducted by Zuzana Murdoch and Jarle Trondal, ‘The Advance of a European Executive Order in Foreign Policy? Recruitment Practices in the European External Action Service’ in David Spence and Jozef Bátora (eds), The European External Action Service: European Diplomacy Post-Westphalia (Palgrave Macmillan 2015). Article 2(2) of Decision hr(2010) 002.

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in this respect and that, in extreme situations, he/she may withdraw the delegation of the appointing authority’s powers. More importantly, the eeas’s autonomy in staff management is limited by the intervention of other bodies. During the setup of the Service, eu institutions expressed interest in playing a part in the appointment of its staff.44 The High Representative opposed the introduction of excessive interference with her power and proposed a generic compromise, at Article 6(10) of her proposal: ‘in the course of setting up the eeas, representatives of the Member States, the General Secretariat of the Council and the Commission shall be involved in the recruitment procedure for vacant posts in the eeas’.45 The legislator maintained this provision (which is now contained in Article 6(8)), but dropped the formula ‘in the course of setting up the eeas’. This suggests that the external influence on the appointment of eeas staff is not limited to the setup of the Service, but is bound to last indefinitely. This interpretation is confirmed by the hr’s Decision hr(2011) 005, which created a Consultative Committee on Appointments for the eeas. The Committee is composed by two senior eeas officials, two representatives of the Member States (on a rotation basis, so that each Member State is represented at some point), and one representative each from the Commission and the General Secretariat of the Council.46 This Committee conducts interviews of the candidates for eeas posts at the level of Heads of Division and above, and adopts, by simple majority, an opinion with a shortlist of those candidates it considers most suitably qualified for appointment.47 This opinion is then transmitted to the High Representative. Although the opinion is per se ‘­advisory’ and ‘not binding’, one may suppose that it actually influences the choices of the hr and thus the internal governance of the eeas.48

44 Christoffersen (n 9 p 2), at 113–114. 45 Emphasis added. 46 Decision hr(2011) 005, Article 3. 47 As noted by Murdoch et al., this procedure corresponds very closely to the selection procedure for senior management appointments in the European Commission (with the notable difference that the Commission procedures do not involve the representatives of other eu organs or of the Member States), see Zuzana Murdoch, Jarle Trondal and Stefan Gänzle, The Origins of Common Action Capacities in eu Foreign Policy: Observations on the Recruitment of Member States’ Diplomats and Officials to the European External Action Service (eeas) (arena Working Paper 2013) accessed 19 December 2015, at 12. 48 The members of the Committee indeed represent the very eeas, as well as the Member States and the Commission. Cf. Jost‐Henrik Morgenstern, ‘The Many Faces of Control:

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3 Ability to Implement Administrative Expenditure The budget was one of the most controversial issues discussed during the setup of the Service. The Parliament wanted the eeas to be integrated – from a financial perspective – into the Commission structure. The Council could not accept this arrangement, since it would have enabled the Commission to control csdp structures, as well as eu Delegations. According to the Council, the eeas should have had an autonomous budget, covering both administrative expenses (e.g. maintenance of buildings) and operational ones (e.g. financing development cooperation programmes). The Commission retorted that the eeas could not be entrusted with the implementation of operational expenditure, since the Treaties (Article 317 tfeu) give this power to the Commission itself, and not to the eeas.49 After some negotiation, the institutions reached a compromise, whereby (i) the Commission maintained its power to implement operative expenditure; at the same time (ii) the eeas obtained autonomy in the ambit of administrative expenditure. The nature and limits of this autonomy, at any rate, are not entirely evident. The core of budgetary autonomy lies, as it is obvious, in the existence of a budget. Some eu organs have a budget of their own.50 Consequently, they are not subject to the control of the budget authorities of the Union (i.e. the Council and the Parliament). The eu bodies that do not have a budget of their own may nonetheless enjoy some financial autonomy. eu institutions and some organs treated as ‘institutions’ for financial purposes (such as the Economic and Social Committee and the Committee of the Regions)51 are given a section in the budget of the Union.52 This section contains the resources that each ‘institution’ can use for its administrative expenditure. The preamble of Decision 2010/427 makes clear that the eeas should be considered as an institution for budget purposes.53 Accordingly, the legislature has adopted R ­ egulation 1081/2010/eu/Euratom, which gives the eeas its own section in the eu ­Budget

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Principals, Specialisation and the European External Action Service’ (uaces Annual ­Conference, Leeds, 2 September 2013), at 14. Christoffersen (n 9 p 2), at 106. It is worth pointing out that the eeas per se cannot be ­entrusted with the implementation of the operational lines of the budget, but the members of the eeas staff (notably, the Head of Delegation) can perform this function on behalf of the Commission, see Chapter 6.II.2.3; see also Chapters 4.II.1.2 and 6.I.2.3. This is the case, in particular, of decentralised agencies and of the European Central Bank. The list also comprises: European Ombudsman, European data-protection Supervisor, and the European External Action Service (further on the implementation of the eeas’s budget, see infra). See also Article 2(b) of the Financial Regulation (n 58 p 115). With the exception of the ecb. Decision 2010/427 (n 132 p 94), preamble, recital 14.

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(Section x).54 This means that the eeas has resources it can use for its administrative expenditure (about €500 million per year).55 Examples of such administrative expenditure are the payment of the salaries of officials, rent of offices, rent and security of housing for expatriate staff, and informatics and telecommunication costs.56 In any event, a body is not financially independent simply because it has a section in the eu budget. One must indeed verify whether (a) that body can define the rules applying to the implementation of its budget and if (b) it can authorise the disbursement of its resources. Some organs of the Union, such as the European Central Bank and decentralised agencies, can define the rules applicable to their administrative expenditure.57 Other institutions are subject to the rules applicable to the implementation of the eu budget, which are contained in Regulation 966/2012/eu (hereinafter: Financial Regulation).58 Being treated like an ‘institution’ for budgetary purposes, the eeas is subject to the Financial Regulation. The application of the Financial Regulation to the specific situation of each institution, at any rate, requires the adoption of further rules – which are normally adopted by each eu organ. The eeas is less autonomous than eu institutions in this respect: Decision 2010/427 enables the High Representative to adopt the internal rules for the management of the eeas’s administrative budget lines (Article 8(1)). The hr adopted the rules on the implementation of the eeas budget in 2011, through the Decisions hr(2011) 001 and hr(2011) 003.59 54 55 56

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Parliament and Council Regulation 1081/2010/eu/Euratom, oj 2010 L 311/9. The figures of the eeas’s expenditure in 2013 are provided for in the eu budget, oj 2013 L 66/1, p. 532. See also eeas, 2013 Annual Activity Report (2014), at 13. eeas 2012 Discharge, Answers by the High Representative/Vice President Catherine Ashton to the Written Questions of the Committee on Budgetary Control (2014) accessed 19 December 2015, answer to question 199. See e.g. Regulation 526/2013/eu concerning the European Union Agency for Network and Information Security (enisa) oj 2013 L 165/41, Article 5(12). To be sure, the autonomy of eu agencies is not complete: enisa, for instance, cannot apply rules that depart from the Financial Regulation (n 58 p 115), ‘unless such departure is specifically required for the Agency’s operation and the Commission has given its prior consent’, ibid. Parliament and Council Regulation 966/2012/eu, oj 2012 L 298/1-96 (hereinafter: Financial Regulation). At the moment of the adoption of Decision 2010/427, the Financial Regulation was Council Regulation 1605/2002/ec/Euratom, of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities, oj 2002 L 248/1. High Representative Decision on the Internal Rules on the Implementation of the Budget of the European External Action Service (Section x), hr(2011) 001, 31 January 2011, not published in the oj.

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More important than the ability to define the rules on the implementation of the budget, at any rate, is the capability to implement them, in order to procure goods and services and decide on the awarding of public contracts.60 This indeed gives an organ the ability to, inter alia, open offices and ensure protection of staff and property. In order to verify whether the eeas is capable of implementing its own budget, one should determine the identity of its ‘authorising officer’, that is, the entity that can authorise expenditure, within the meaning of the Financial Regulation. As a general rule, each institution performs the duties of authorising officer.61 The original High Representative’s proposal for a Decision establishing the eeas stipulated that the hr herself should have acted as authorising officer of the Service.62 The wording of the proposal was later changed; Decision 2010/427 stipulates that the authorising officer of the eeas is defined on the basis of the same rules that apply to the other ‘institutions’. Therefore, the eeas as such performs the duties of authorising officer.63 Article 3 of Decision hr(2011) 001 confirms this explicitly. Although the eeas is represented by the High Representative in this ambit, the financial autonomy of the Service is not diminished. From a formal perspective, the acts that implement the eeas section of the eu budget are adopted by the Service itself, and not by the High Representative. The eeas’s autonomy is even more evident from a practical viewpoint: the High Representative has indeed delegated (on behalf of the eeas) all powers of budget implementation to members of the eeas’s staff.64 This means that all decisions relating to the implementation of the eeas’s section of the eu budget are taken de jure and de facto by the eeas and its staff. The eeas’s autonomy in respect of the adoption of budget decisions is ­confirmed by the case Page Protective Services v eeas. The applicant – a ­private security company – was excluded from a public contract procedure on the provision of security services to the eeas.65 The company later brought action against the eeas’s decision.66 The General Court and, later, the Court of 60 61 62

Financial Regulation (n 58 p 115), Article 113(1). Id., Article 65. High Representative, Draft Council decision establishing the organisation and functioning of the European External Action Service, Council doc. 8029/10, Art. 7(1). 63 See Decision 2010/427 (n 132 p 94), Art. 8(1); Financial Regulation (n 58 p 115), Art. 65(1). 64 Decision hr(2011) 001, Article 4(1) and Article 5. 65 See contract notice eeas-140-divb1-ser-fwc, 17 October 2012, available at accessed 3 February 2015. 66 The General Court, and later the Court of Justice, held that the application was manifestly inadmissible, since the applicant had failed to bring action against the eeas within the

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J­ ustice assumed that the contested act was a ‘decision of the European E ­ xternal ­Action Service’. Neither the claimant nor the eeas itself discussed the issue. This suggests that a decision implementing the eeas’s administrative budget can be indisputably defined as an act of the Service – and not one of the High Representative. 4 Capability to Protect Information Whereas staff and budget management are perhaps the most important a­ reas of administrative autonomy for an eu body, there is another issue that deserves consideration: information security. eu institutions are in possession of documents that contain sensitive information, and which must be protected from disclosure, for different reasons. The distribution of information may harm public security as well as public interest as regards international relations, especially in case of information coming from other international subjects: the eu may indeed obtain information from third States in exchange for the commitment not to disclose its content.67 A ‘leakage’ of such information may give rise to the eu’s international responsibility, may damage its international image, and reduce the willingness of third parties to share further information with the Union. Unwarranted disclosure may also harm the interests of individuals. P ­ ursuant to Regulation 45/2001/ec (hereinafter: Data Protection Regulation)68 information relating to individuals may be disclosed to third parties only under certain conditions. The Service may come into possession of information relating to individuals, for instance in cases of persons suspected of terrorism. An illegal disclosure may engender the violation of the rights of concerned individuals, as well as the non-contractual liability of the Union. This would be the case, in particular, if a body failed to put into place ­adequate mechanisms for the protection of personal information.69 eu organs must indeed adopt specific procedures and physical security measures to time limit foreseen in Article 263 tfeu, see Order Page Protective Services v eeas, T-221/13, eu:t:2013:363, para 17; Order Page Protective Services v eeas, C-501/13 P, eu:c:2014:2259. 67 For instance, the agreement concluded by the eu and the United States of 2007 ­stipulates that the eu must not release classified information originating from the us without ­obtaining the prior written approval of this State; see Agreement between the European Union and the government of the United States of America on the security of classified information, Art. 4(3), oj 2007 L 115/30. 68 Parliament and Council Regulation 45/2001/ec, oj 2001 L 8/1. Pursuant to this instrument, information can only be disclosed if an adequate level of protection is ensured in the country of the recipient or within the recipient international organisation. 69 Cf. Nikolau v Commission, T-259/03, eu:t:2007:254, paras 195–196.

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­preserve the confidentiality of information. This necessity is particularly evident for the Commission and the Council, which are entrusted with significant responsibilities in areas that require a degree of confidentiality, such as competition or the cfsp. These institutions have consequently established rules that prevent unauthorised access to information, notably Commission Decision 2001/844/ec/ecsc/Euratom70 and Council Decision 2013/488/eu.71 These acts have been adopted by the two institutions on the basis of their power of self-organisation, and, in principle, are directly binding only for them. Nonetheless, the founding instruments of some other bodies require them to apply Council security rules.72 The eeas is in an equivalent situation – with the notable difference that the High Representative adopts the eeas rules.73 The hr adopted, on the basis of Article 10 of Decision 2010/427, a first version of the eeas security rules in 2011 (hereinafter: 2011 security Decision),74 and replaced them in 2013 (hereinafter: 2013 security Decision).75 These rules largely correspond to those of the Council.76 70 71 72

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Commission Decision 2001/844/ec/ecsc/Euratom, oj 2001 L 317/1. Council Decision 2013/488/eu on the security rules for protecting eu classified information, oj 2013 L 274/1. This is the case, for instance, of the European Union Satellite Centre, see Council Decision 2014/401/cfsp on the European Union Satellite Centre, oj 2014 L 188/73, Article 15. For an overview of this issue see ‘Analytical Fiche Nr° 17 – Exchange of eu classified information’, available at accessed 18 February 2015. Similarly, some agencies are required to adopt internal rules of operation applying the security principles set out in the Commission security rules, see e.g. Regulation 526/2013/eu concerning the European Union Agency for Network and Information Security, oj 2013 L 165/41, Article 17(4). One may note that, before the hr adopted the eeas’s security rules, the Service applied provisionally the security measures of the Council and of the Commission, ex Article 10(2) of Decision 2010/427 (n 132 p 94). It has been hypothesised that the application of this ­provision could have proven problematic, since the Council and Commission rules ‘­overlap to a considerable extent’; see Blockmans and others (n 3 p 1), at 62. This issue, at any rate, does not seem relevant anymore, since the hr has adopted specific eeas’s security rules. Decision of the High Representative of 15 June 2011 on the security rules for the European External Action Service, oj 2011 C 304/7. Decision of the High Representative of 19 April 2013 on the security rules for the European External Action Service, oj 2013 C 190/01. Indeed, according to Council Decision 2013/488/eu, the Council and the eeas are committed to applying equivalent security standards for protecting classified ­information, see Decision 2013/488/eu (n 71 p 118), preamble, recital 4. To promote such equivalence, the

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As in the case of staff management and budget implementation, the eeas – albeit incapable of adopting general measures – can apply them in specific cases. Under the rules contained in the 2011 security Decision, the High Representative was qualified as the ‘security authority’ of the eeas and was responsible for the adoption of most security-related measures concerning the Service.77 The 2013 Decision entrusts these functions on the eeas’s managing officials,78 who may adopt any measures necessary to implement the security rules, including acts that directly affect the legal position of the Service’s staff members, such as decisions that authorise them to access classified information.79 Moreover, the eeas’s management may decide whether to release classified information in possession of the eeas to third countries or international organisations.80 In some cases, the protection of information security may collide with a principle of the Union: transparency. According to Article 15 tfeu each institution, body, office or agency of the Union must ensure that its proceedings are transparent.81 Any citizen of the Union has a right of access to documents of the Union’s institutions, bodies, offices, and agencies.82 However, eu

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hr must, before adopting the eeas security rules, consult the committee that ­advises the Council on security matters, see Article 17(2) of Decision 2013/488/eu. See also Article 10(1) of Decision 2010/427 (n 132 p 94). 2013 Security Decision (n 75 p 118), Article 9. More precisely, on the Chief Operating Officer, now replaced by the Executive ­SecretaryGeneral. See 2013 Security Decision (n 75 p 118), Article 12. Given the relevance of ­security-related decisions, the eeas must apply them in cooperation with other bodies. Pursuant to Article 10(4) of Decision 2010/427 (n 132 p 94), the Service must ‘seek advice from the Security Office of the General Secretariat of the Council, from the relevant services of the Commission and from the relevant services of the Member States’ in order to implement security rules, ‘in particular as regards the protection of classified information and the measures to be taken in the event of a failure by eeas staff to comply with the security rules’. The fact remains, at any rate, that the final decisions on security issues are taken by eeas officials and constitute eeas acts. 2013 Security Decision (n 75 p 118), Annex A I, paras 1 and 16. The exercise of this power is subordinated to the existence of an international agreement on the exchange of information between the eu and the third country or international organisation concerned or, as an alternative, to the presence of an administrative ­arrangement between the hr and the foreign authority. See 2013 Security Decision (n 75 p 118), Annex A vi, para 10, and annex A, Article 10(1). See also Jürgen Schwarze, ‘European Administrative Law in the Light of the Treaty of ­Lisbon’ (2012) 18 European Public Law 285, at 299. This provision applies to the cjeu, the ecb and the European Investment Bank solely in respect of administrative issues, see Article 15(3) tfeu.

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bodies may wish not to disclose certain documents, to avoid risks for security or damages to the relations with third countries. One may wonder, in principle, whether the eeas is capable of defining which of the documents in its possession may be disclosed to the public, or whether this decision must be taken by other bodies. The generally applicable rules on access to documents are defined by the legislature, which is empowered by Article 15(3) tfeu to adopt the principles and limits on grounds of public or private interest governing the right of access to documents. Such principles and limits are now defined mostly in Regulation 1049/2001/ec.83 This instrument clarifies the obligations of t­ ransparency binding eu organs: (i) allow the public to access the documents in their ­possession;84 (ii) provide public access to a register of their documents85 (iii) ‘as far as possible’ make documents directly accessible to the public, for instance via a website.86 Regulation 1049/2001 also enables eu bodies to deny access to their documents in certain occasions, notably when disclosure may undermine privacy and the integrity of the individual, for preserving public security or international relations, and in the case of classified documents.87

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Regulation 1049/2001/ec of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, oj 2001 L 145/43. It is opportune to point out that Regulation 1049/2001 is not intended to regulate transparency in an exhaustive way, since there are other instruments that concern access to documents in relation to specific issues; see Opinion of AG Cruz-Villalon in Commission v EnBW Energie, C-365/12 P, eu:c:2014:112, para 38. Since the eeas is required to apply solely Regulation 1049/2001/ec, an analysis of other instruments falls beyond the scope of the present analysis. ‘Document’, for the purpose of Regulation 1049/2001/ec (n 83 p 120), means ‘any content whatever its medium (written on paper or stored in electronic form or as a sound, ­visual or ­audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility’, ex Article 3(a) of the Regulation. For each document the register is to contain a reference number, the subject-matter and/ or a short description of the content of the document and the date on which it was r­ eceived or drawn up and recorded in the register. See Article 11 of Regulation 1049/2001/ec (n 83 p 120). See also Opinion of AG Kokott in Strack v Commission, C-127/13 P, eu:c:2014:455, para 55. Regulation 1049/2001/ec (n 83 p 120), Article 12(1). Id., Articles 4 and 9. See also the Data Protection Regulation, i.e. Parliament and Council Regulation 45/2001/ec, oj 2001 L 8/1. See further Jürgen Schwarze, ‘Access to Documents under European Union Law’ (2015) 25 Rivista italiana di diritto pubblico comunitario 335, at 341–342.

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Regulation 1049/2001 explicitly aims at regulating access to the documents of Parliament, Council, and Commission. It is nonetheless applied by other eu bodies, either on a voluntary basis,88 or because of a decision of the ­legislature.89 The eeas makes no exception, as its founding instrument affirms that the ‘eeas shall apply the rules laid down in Regulation (ec) 1049/2001’ (Article 11(1)).90 This suggests that the eeas is treated like an institution for the purpose of transparency rules, as in the case of staff management and ­budget implementation. Differently from eu institutions, however, the eeas has ­limited autonomy to implement these rules internally. Article 11(1) of Decision 2010/427 confers on the High Representative the power to decide on the ‘implementing rules for the eeas’. On the basis of this power, the hr has adopted a decision on access to eeas documents in 2011 (hereinafter: hr Decision on access to documents).91 There is no doubt, at any rate, that the eeas may autonomously adopt the most important acts relating to transparency, i.e. the decisions granting (or denying) access to documents. As required by Regulation 1049/2001/ec, the eeas has set up a register of its documents,92 but grants limited access thereto.93 Most eeas documents, at present, may only be consulted through the procedure set in Regulation 1049/2001/ec, implemented through the hr Decision on access to documents of 2011. Through this procedure, individuals may ­request access to the documents in the possession of the Service, by introducing a r­ equest by email, post or fax. Like any other ‘institution’, the eeas may grant access to the document requested, or deny access, stating the reasons for the total or partial refusal.94 88 89 90

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See e.g., the Rules of Procedure of the Committee of the Regions, oj 2014 L 65/41, Article 78. See e.g. Regulation 526/2013/eu concerning the European Union Agency for Network and Information Security, oj 2013 L 165/41, Article 18(1). It is worth noting that Article 11(3) similarly states that the ‘eeas shall protect individuals with regard to the processing of their personal data in accordance with the rules laid down in Regulation (ec) No 45/2001’. Decision of the High Representative of 19 July 2011 on the rules regarding access to documents, oj 2011 C 243/16. Cf. Article 11(2) of Decision 2010/427 (n 132 p 94), which affirms that the Executive ­Secretary-General of the eeas must organise the ‘archives’ of the service (which presumably ­include the eeas register). See also Article 10(1) of hr Decision on access to documents (n 91 supra). See the website of the eeas’s register, accessed 16 November 2015. Article 7(1) of Regulation 1049/2001/ec (n 83 p 120).

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The decision authorising or denying access to the eeas’s documents transparently appears as an act of the Service. The hr Decision on access to documents stipulates that ‘the eeas’ answers initial and confirmatory applications for access to documents95 and that the eeas ‘decides on the application[s]’.96 The hr Decision even identifies the eeas officials that are responsible for ­taking decisions relating to access to documents: the ‘access to documents ­coordinator’ – the head of the Corporate Board Secretariat97 – handles initial applications, while confirmatory applications are decided by the Chief Operating Officer (now, presumably, the Executive Secretary-General).98 The High Representative would seem not to be involved in the decision-making procedure. ii

eeas’s Capacity to Act Externally in Administrative Matters99

To be autonomous in administrative matters, the eeas should be capable, not only of adopting internal decisions, but also of interacting with other authorities. The independent management of administrative affairs, in fact, implies the ability to enter into legal commitments with other entities, and to defend one’s position before the judiciary. This section suggests that the eeas enjoys this kind of autonomy, since it may be subject to rights and obligations, and may consequently be termed as a person under eu law (1). Thanks to its ­personality, the Service can enter into interinstitutional agreements regarding administrative matters (2) and may stand before the Court, as a ­defendant (3) and as a plaintiff (4). 1 Legal Personality of the eeas The autonomy of a body is generally reflected by its ability to be subject to rights and obligations – i.e. by its legal personality. The legal personality of public bodies is a controversial topic, on which ‘no one will ever have the last 95 96 97

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hr Decision on access documents (n 91 p 121), Article 3(1). Id., Article 6(5). The very webpage of the eeas service for access to documents stipulates that an eeas department (Division SG1 – Corporate Board Secretariat) is ‘responsible for processing requests for public access to documents’, see accessed 18 December 2015. hr Decision on access to documents (n 91 p 121), Article 4. Some parts of this section were originally published in Mauro Gatti, ‘Diplomats at the Bar:  The European External Action Service before eu Courts’ (2014) 39 European Law Review 664.

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word’.100 It is nonetheless necessary to discuss it in the case of the eeas, not only for the sake of theoretical accuracy, but also for practical reasons. If the Service were not subject to rights and obligations it would simply not exist as such in the legal system of the eu.101 Hence, one would have to assume that it cannot enter into interinstitutional agreements, that its acts should be attributed to other entities, and that it would not be able to defend its prerogatives before the cjeu. Decision 2010/427 does neither explicitly acknowledge nor exclude the eeas’s personality. Article 1(2) affirms that the Service is endowed ‘with the legal capacity necessary to perform its tasks and attain its objectives’. Legal personality and legal capacity, in any event, are generally conceived of as different concepts: while the former is understood as the quality through which an entity can be subject to rights and obligations,102 the latter may be defined as the scope of its power to engage in legal relationships.103 The conferral of legal capacity to the Service may thus suggest the existence of its legal personality – but such a conclusion cannot be taken for granted. The theoretical possibility of the legal personality of any eu body is, in fact, problematic. Is it possible that a legal person (such as an eu institution) may be the organ of another legal person (the eu)? This issue has been the s­ ubject of extensive debate at the national level. In some systems, the personality of public bodies, and especially of government organs, is normally excluded, because they are supposed to be non-autonomous in financial terms,104 and 100 Jean-Pierre Gridel, ‘La personne morale en droit français’ (1990) 42 Revue internationale de droit comparé 495, at 512 (translation by the author). 101 Cf. Henry G Schermers, International Institutional Law: Unity within Diversity (Martinus Nijhoff 2011), at 985. 102 Although there is scarce agreement on the issue of legal personality in general, several authors, in different fields, provide for the same definition, see, e.g., Léon Michoud, La théorie de la personnalité morale et son application au droit français (Librairie générale de droit et de jurisprudence 1906), at 3; Bryant Smith, ‘Legal Personality’ (1928) 37 The Yale Law Journal 283, at 283; Mustafa K Yasseen, ‘Création et personnalité juridique des organisations internationales’, Manuel sur les organisations internationales | A Handbook on International Organizations (Collected Courses of the Hague Academy of International Law 1988), at 43; Gaetano Arangio-Ruiz, Diritto internazionale e personalità giuridica (Cooperativa Libraria Universitaria 1971), at 9; Andrea Ott, ‘eu Regulatory Agencies in eu External Relations: Trapped in a Legal Minefield Between European and International Law’ (2008) 13 European Foreign Affairs Review 515, at 518; Van Vooren (n 3 p 1), at 485. 103 Van Vooren (n 3 p 1), at 485. 104 Cf. Michoud (n 102 supra), at 281. See also Roberto Chieppa and Roberto Giovagnoli, Manuale di diritto amministrativo (Giuffrè 2011), at 180–181.

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since they are expected to promote the same interests as their State.105 However, as Advocate-General Mancini noted in 1987, ‘the most authoritative academic writings have conceded for some time that the organ of a legal person may itself possess personality’.106 Some authors indeed recognise that a State may pursue several interests, which might conflict with each other, and whose protection is ensured by different organs. The latter should consequently be considered as autonomous, from a formal perspective, too.107 Similar theoretical uncertainties exist at the eu level, even if the doctrinal debate is not equally sophisticated. Secondary law often refers to the ‘interests’ of the Union, and not to those of its organs;108 yet, it is generally admitted that eu bodies pursue different objectives and represent different visions of European integration – and actually defend different interests in practice.109 This apparent contradiction led the Court to make seemingly conflicting statements. In some cases, the Court held that ‘only the eu has legal personality, and its institutions do not’.110 In other situations, the cjeu implicitly recognised the existence of eu institutions’ personality, by admitting that the provisions that do not concern applicants directly and individually may not be challenged in a direct action by natural or ‘legal persons other than Community institutions’ and Member States.111 This view seems to be confirmed by the case-law of the General Court, according to which entities ‘without legal personality’ – such as Commission services – cannot be defendants before the Court; this line of reasoning arguably implies that the authorities that have locus standi also have 105 Cf. Michoud (n 102 p 123), at 285. 106 Opinion of AG Mancini in Commission v Board of Governors of the European Investment Bank, Case 85/86, eu:c:1987:504, para 12. 107 Cf. Roberto Bin and Giovanni Pitruzzella, Diritto costituzionale (Giappichelli 2013), at 28. 108 The Staff Regulations (n 26 p 109), for instance, require eu staff to conduct their actions with solely the interests of the ‘Union’ in mind (Article 11). See also Willeme v Commission, T-89/01, eu:t:2002:212. 109 In general terms, the Parliament is the expression of democratic legitimacy, and represents the interests of European people; the Commission represents European integration, while intergovernmental institutions support the views of the Member States, see Constantinesco, Compétences et pouvoirs (n 81 p 77), at 418. 110 Algera and others v Common Assembly of the ecsc, Cases 7/56 and 3 to 7/57, eu:c:1957:7, para 57; Altmann and Casson v Commission, T-177/94 and T-377/94, eu:t:1996:193, para 150. 111 SpA Simmenthal v Commission, Case 92/78, eu:c:1979:53, para 40 (emphasis added). ­Significantly, the Court of First Instance supported this view in one of the judgements where it argued that only the eu has legal personality (and its institutions do not) see Altmann and Casson v Commission, T-177/94 and T-377/94, eu:t:1996:193, para 127; cf. id., para 150.

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legal personality.112 The Commission seems to share this view, too, since in the Technoprocess case it affirmed that eu Delegations have no standing because they have ‘no legal personality separate from its own’.113 The apparently conflicting statements contained in the case-law can be ­explained by considering that eu institutions are not legal persons in the same way the eu is a legal person, since the former are not entirely autonomous from the latter. As a consequence of their relative autonomy, eu institutions do not have personality in the international legal order or in the systems of eu Members. This does not prevent eu organs, in any event, from having personality in the legal order of the Union. Assuming that the legal system of the eu is autonomous from the international and national ones,114 there may be entities that have legal personality in the system of the Union without having such a quality in other systems.115 This is precisely the situation of certain agencies, onto which secondary law explicitly confers legal personality in the legal order of the eu,116 but which do not necessarily have such a quality at the international level.117 There are also entities that are implicitly given legal personality in the eu order: this is the case, in particular, of institutions, which are indeed subjects to rights and ­obligations.118 For instance, according to Article 13(2) teu, the institutions 112 See Camós Grau v Commission (n 4 p 103), para 66. 113 Translation by the author (the judgement is available only in French). The original ­version reads: ‘la Commission soutient, d’une part, que les délégations de l’Union n’ont pas de personnalité juridique distincte de la sienne’, see Order in Technoprocess v Commission and Delegation of the European Union in Morocco, T-264/09, eu:t:2011:319, para 64. 114 Costa v Enel, Case 6/64, eu:c:1964:66, p. 1158; Walt Wilhelm and others v Bundeskartellamt, Case 14/68, eu:c:1969:4, para 6. See also Van Gend & Loos v Netherlands Inland Revenue Administration, Case 26/62, eu:c:1963:1, p. 23. 115 It is worth noting that the Court has held that ‘the meaning of “legal person” in the second paragraph of Article 173 of the eec Treaty [presently, Article 263(4) tfeu] is not necessarily the same as in the various legal systems of the Member States’; see Groupement des Agences de voyages v Commission, Case 135/81, eu:c:1982:371, para 10. 116 This is the case, for instance, of executive agencies, such as the European Food Safety ­Authority, see Regulation 178/2002/ec, oj 2002 L 31/1, Art. 46(1), and of the European ­Asylum Support Office, see Regulation 439/2010/eu, oj 2010 L 132/11, Art. 40(1). 117 See Tovo (n 80 p 76), at 37–47; Cf. Ott (n 102 p 123), particularly at 528. 118 In addition, one may argue that it is possible to ascribe personality to a body on the b­ asis of a ‘functional assessment’, as noted by AG Jääskinen, Elitaliana v eulex, C-439/13 P, eu:c:2014:2416, para 53. Significantly, AG Jääskinen makes an explicit reference to the eeas, recalling that the Service was given ‘the legal capacity necessary to perform its tasks and attain its objectives’ (emphasis in the original), see id., footnote 17. On the functional approach in the eu’s legal order, see also Tovo (n 80 p 76), at 38.

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must ‘practice mutual sincere cooperation’, which means that they are subject to the same mutual obligations of sincere cooperation which govern relations between the Member States and the Union.119 eu institutions are therefore subject to an obligation to cooperate with other Union bodies and have a right to receive the same cooperation. One can hardly imagine how an authority may be subject to rights and obligations without possessing the ability…to be subject to rights and obligations. Moreover, it would be difficult to argue that institutions exert a right to cooperation that belongs to the eu. This would be tantamount to affirming that an entity acting on behalf of the Union would have to cooperate with another entity acting on behalf of the Union: this would seem to amount to ‘a duty to cooperate with oneself’.120 Hence, one may argue that Union institutions should be considered as legal persons under eu law. Establishing that eu institutions and agencies have legal personality, at any rate, is not sufficient for our purposes. The eeas is not an ‘institution’, since institutions are set up by the Treaties and they are enumerated by Article 13(1) teu (and the eeas is not comprised within the list). The Service is not an agency either, and – differently from such organs – it was not explicitly conferred legal personality. The eeas, being a service, may appear similar to the administrations of eu institutions, which are organically and functionally dependent on other bodies and consequently lack legal personality.121 Yet, the present analysis has shown that the Service has ample administrative autonomy, in terms of the management of staff, budget, and information security issues. This suggests that the legislature intended to designate it ‘as an independent body of the European Union’,122 that is different from services proper. It would seem, in fact, that the eeas was implicitly given legal personality in the eu legal order, since the Service is bound by several obligations, by virtue of its administrative autonomy. For instance, it must make its documents accessible to the public123 and it must draw up an estimate of its

119 Cf. Luxembourg v Parliament, Case 230/81, eu:c:1983:32, para 37; Greece v Council, Case 204/86, eu:c:1988:450, para 16; Parliament v Council, C-65/93, eu:c:1995:91, para 23. It is worth noting that eu judges seem to use the expressions ‘duty of sincere cooperation’ and ‘obligations of sincere cooperation’ interchangeably. For instance, in Commission v Sweden (pfos) (n 126 p 44), the cjeu mentions an ‘obligation’ of cooperation (para 77) and cites Commission v Council (fao) (n 46 p 68), para 49, which mentions a ‘duty’ of cooperation. 120 Cf. AG Mengozzi in Commission v Council, C-28/12 (n 61 p 73), footnote 56. 121 See the case-law mentioned in n 4 p 103. 122 Cf. Elti v Delegation of the eu to Montenegro (n 4 p 103), para 35. 123 With the exception of situations covered in 1049/2001/ec (n 83 p 120), Art. 4.

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­revenue and expenditure every year.124 The eeas also has rights under eu law. For example, it has a right to be consulted by other eu bodies whenever the latter are in possession of eeas documents which they intend to divulge.125 Moreover, it has a right to obtain the cooperation of Union institutions with respect to the implementation of its own administrative budget.126 The absence of an explicit mention of legal personality in Decision 2010/427 thus appears to be more a political choice than a legal one. Probably, the Council did not intend to stress the independence of the eeas vis-à-vis the Commission, given the Parliament’s misgivings about it.127 2 Ability to Conclude Binding Administrative Arrangements eu bodies sometimes need to cooperate with each other in order to address administrative issues. This is particularly true for the eeas. To ensure ‘budget neutrality’, the Council did not transfer support services to the eeas, assuming that the Service would have relied on existing administrative functions from the Commission and the Council.128 The eeas’s need for administrative support from other bodies is reflected in Article 4(5) of Decision 2010/427, which stipulates that the eeas is ‘assisted’ by the General Secretariat of the Council and the relevant departments of the Commission. This provision also enables these administrations to draw up ‘service-level arrangements’ for this purpose. There is another provision of Decision 2010/427 that may be relevant in this ambit. Article 3 stipulates that the eeas must cooperate with other authorities; paragraph 3, in particular, allows 124 Financial Regulation (n 58 p 115), Art. 36. Notice that the eeas must also cooperate with the Parliament and the Commission in the budget discharge procedure, pursuant to Art. 167 of the Financial Regulation (n 58 p 115). 125 Regulation 1049/2001/ec (n 83 p 120), Art. 4(4). 126 Although the Financial Regulation (n 58 p 115) explicitly foresees an obligation to cooperate with other bodies, the reverse must also be true, since Art. 3(4) of Decision 2010/427 explicitly stipulates that eu bodies must support and cooperate with the Service. In addition, it would be difficult to argue that the eeas may co-operate (i.e. ‘work together’) with an entity that does not cooperate with the Service. 127 Cf. Van Vooren (n 3 p 1), at 485: ‘the absence of explicit legal personality of the eeas is not so much a legal choice as a political one’. The absence of the eeas’s explicit personality thus appears as somehow analogical to the absence of explicit international personality of the eu before the Lisbon reform. Cf. Antonio Tizzano, ‘La personalità internazionale dell’Unione Europea’ (1998) Il diritto dell’Unione europea 377, at 406 : ‘la personalità dell’Unione insomma c’è, ma non si dice!’ (‘The personality of the Union does exist, but you don’t mention it!’). 128 See eeas Review (n 13 p 3), at 10.

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the Service to enter into service-level arrangements with the Commission, the Council General Secretariat, and ‘other offices or inter-institutional bodies of the Union’. One may wonder what legal effects the ‘service-level arrangements’ concluded by the eeas may have. The arrangements concluded by services normally do not produce legal effects. Given the peculiar status of the eeas, ­nevertheless, its ‘arrangements’ may constitute sorts of binding interinstitutional agreements. eu institutions routinely enter into binding arrangements concerning administrative issues.129 Article 295 tfeu explicitly admits that the Parliament, the Council and the Commission may conclude binding interinstitutional agreements. Even before the insertion of this provision in primary law (performed by the Lisbon Treaty), the Court had acknowledged that certain interinstitutional agreements could be binding, because they represented a fulfilment of the duty of sincere cooperation.130 Since the eeas may be subject to rights and obligations, one might hypothesise that it may also be capable of entering into binding commitments vis-àvis other bodies. Decision 2010/427 does not explicitly empower the Service to conclude interinstitutional agreements, but this capability may descend from the obligation of sincere cooperation, which is enshrined in Article 13(2) teu. According to this provision ‘the institutions shall practice mutual sincere cooperation’. Although Article 13(2) refers specifically to eu ‘institutions’, it 129 For example, the Council and the Parliament concluded in 2014 an agreement concerning the forwarding to the European Parliament of classified information held by the Council. Pursuant to this instrument, the former institution committed to ensure a level of protection to classified information equivalent to that afforded by the latter, see Interinstitutional Agreement of 12 March 2014 between the European Parliament and the Council concerning the forwarding to and handling by the European Parliament of classified information held by the Council on matters other than those in the area of the Common Foreign and Security Policy, oj 2014 C 95/1. 130 See Commission v Council (fao) (n 46 p 68), paras 49–50. See also Christophe Hillion, ‘­Mixity and Coherence in eu External Relations: The Significance of the “Duty of Cooperation”’ in Christophe Hillion and Panos Koutrakos (eds), Mixed Agreements Revisited: the eu and its Member States in the World (Hart 2010); Anne-Marie Tournepiche, Les accords interinstitutionnels dans l’Union européenne (Bruylant 2011), at 444–445; Jörg Monar, ‘­Interinstitutional Agreements: The Phenomenon and Its New Dynamics after Maastricht’ (1994) 31 Common Market Law Review 693, at 703; Francis Snyder, ‘Interinstitutional Agreements: Forms and Constitutional Limitations’ in Gerd Winter (ed), Sources and Categories of E­ uropean Union Law: a Comparative and Reform Perspective (Nomos 1996), at 462.

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should logically apply to eu organs at large,131 not least because the obligation of sincere cooperation is ‘of general application’.132 Considering that the eeas has autonomy and powers similar to those of eu ‘institutions’ with regard to several administrative issues, it should be bound by Article 13(2) teu in respect of those matters. Being addressed by the duty of sincere cooperation, the eeas should be able to enter into binding commitments that represent a fulfilment of that duty. The eeas has indeed concluded several administrative arrangements.133 It has entered, in particular, into a Framework Administrative Arrangement (faa) with all Commission services,134 and into several Service-Level Arrangements (sla) with specific Commission departments.135 The Framework 131 It would indeed be incongruous if the High Representative or the Committee of the ­Regions – which are not ‘institutions’ but exert powers similar to those of institutions proper – should not be bound by the obligation set in Article 13(2). 132 See Commission v Sweden (pfos) (n 126 p 44), para 71; Commission v Luxembourg (n 123 p 44), para 58. It may even be held that, after the Lisbon reform, sincere cooperation constitutes a ‘key constitutional principle of general application in the eu legal order’, as noted by P ­ eter Van Elsuwege and Hans Merket, ‘The Role of the Court of Justice in Ensuring the Unity of the eu’s External Representation’, Principles and Practice of eu External Representation (cleer 2012), at 39. 133 Aside from the arrangements with Commission departments, discussed below, the eeas reports it has entered into 4 slas with the General Secretariat of the Council, see the eeas 2012 Discharge, Answers by the High Representative/Vice President Catherine Ashton to the Written Questions of the Committee on Budgetary Control (n 56 p 115), answer to question 166. Furthermore, the Service has entered in a Service Level Agreement with the eu Satellite Centre (the copy sent to the author is not dated). 134 Arrangement administratif entre les services de la Commission Européenne et le Service Européen pour l’Action Extérieure, 13 December 2010, not published in the oj. 135 slas are not published in open sources. The author retrieved the following slas: Service Level Agreement between Commission services with staff in eu Delegations and the ­European External Action Service, 20 December 2010; Service Level Agreement between the Directorate General for Interpretation (dg Interpretation) of the European Commission and the European External Action Service, 21 December 2010; Arrangement Administratif Spécifique portant sur la fourniture de services ict entre le Service Européen pour l’Action Extérieure et la Direction Générale pour l’Informatique de la Commission Européenne (dg digit), 21 December 2010; Accord de service entre la Direction Générale de la Traduction de la Commission Européenne et le Service Européen pour l’Action Extérieure, 22 December 2010; Service Level Agreement concerning the collaboration between the European External Action Service and the Directorate-General for Human Resources and Security of the European Commission (dg hr), 22 December 2010; Service Level Agreement (sla) spécifique entre l’Office pour les infrastructures et la logistique et

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Administrative Arrangement affirms that slas are annexed to the faa, and should be considered as part thereof; hence, they have the same legal effects as the Framework Arrangement.136 These instruments are explicitly meant to promote cooperation in organisational areas and create expectations of compliance on the parties.137 The Framework Administrative Arrangement and Service-Level Arrangements indeed contain, at the end of the preamble, the standard formula ‘[the parties] have agreed as follows’ (or ‘ont convenu de ce qui suit’).138 Moreover, the verbs contained in these instruments are consistently formulated in the indicative mode (i.e. they do not imply a mere aspiration).139 Commitments entered into by the parties are not only peremptory, but also precise, since they define the technical details of the eeas-Commission relationship.140 Finally, the faa contains a binding dispute resolution mechanism. According to Article 6 of the faa, which is also applicable to the slas, the disputes arising from the interpretation of the arrangements may be resolved amicably or via arbitration. Curiously, Article 6 specifies that the decision of the arbiter ‘s’imposéra aux parties’ (‘will be binding upon the parties’). Since it would be difficult to conceive a nonbinding instrument whose arbitral interpretation may be b­ inding on the parties, one must conclude that the eeas and the Commission intended their arrangements to produce legal effects.

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le Service Européen pour l’Action Extérieure, 22–23 December 2010; Service Level Agreement between the European Commission’s Traineeship Office and the European External Action Service, 28 January 2011. ‘Le présent arrangement comprend […] en annexe les conditions particulières relatives aux services à rendre, sous la forme d’arrangements administratifs spécifiques. Celles-ci sont conclues entre le service de la Commission ou l’office intéressé et le seae. Une fois conclues et signées par les parties, ces annexes font partie intégrante du présent Arrangement’, Arrangement administratif entre les services de la Commission Européenne et le Service Européen pour l’Action Extérieure, 13 December 2010, not published in the oj, Art. 1. On the importance of the intention of the parties, see Commission v Council (fao) (n 46 p 68), para 49: ‘It is clear [...] from the terms of the Arrangement, that the two institutions intended to enter into a binding commitment towards each other’. See also Tournepiche (n 130 p 128), at 445–446. Emphases added. This is confirmed, in particular, by the instruments concluded in the English language, which consistently use the modal auxiliary ‘shall’ instead of ‘should’ (that is often used in soft law). See, e.g., Art. 2 of the sla between the eeas and dg Human Resources.

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The fact that these instruments are formally labelled as administrative arrangements – a label normally used for soft law instruments141 – does not detract from their binding character. The Court of Justice has indeed held that the formal characterisation of an act is immaterial as regards its legal status.142 Similarly, the fact that the eeas formally entered into arrangements with Commission services (which cannot exercise any power) and not with the Commission itself (which has the power to enter into interinstitutional agreements) would not seem relevant. The aforementioned faa was indeed concluded by all Commission services. The arrangement is thus relevant for the entire institution. In fact, the signature on the institution’s side was performed not on behalf of Commission services, but ‘pour la Commission européenne’ (‘on behalf of the European Commission’).143 Passive Standing in Judicial Proceedings Concerning Administrative Issues The above paragraphs have shown that the eeas has personality under eu law, and may consequently enter into interinstitutional agreements. This suggests that the Service enjoys ample autonomy in the management of administrative relations with other authorities. There is, in any event, another dimension of the ‘external’ administrative autonomy of eu organs – the capacity to stand before the judiciary – whose importance should not be underestimated. A body would be unable to fully control its internal management if it could not defend the exercise of its powers before a court (passive standing). Similarly, administrative autonomy would be hampered if an authority could not bring action against other organs that interfere with its internal affairs (active standing). This paragraph concerns the eeas’s autonomy in terms of passive

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141 Cf. Van Vooren (n 3 p 1), at 495. 142 See inter alia Commission v Council, Case 22–70, eu:c:1971:32, para 42; ibm v Commission, Case 60/81, eu:c:1981:264, para 9; Commission v Planet ae, C-314/11, eu:c:2012:823, para 94. 143 In the sixties, the Court held that Commission acts should always be approved by the ­College of the Commissioners, see Lemmerz-Werke GmbH and others v High Authority, Cases 53 to 54–63, eu:c:1963:54. Later, however, the Court accepted that acts adopted by Union officers may be binding for their institutions if they are taken on the basis of a delegation of power and they concern less important decisions, having mainly bureaucratic nature. Cf. Société anonyme Cimenteries and others v Commission, Cases 8 to 11–66, eu:c:1967:7; Nelly Kohler v Court of Auditors of the European Communities, Cases 316/82 and 40/83, eu:c:1984:49. The faa and slas belong to this category of acts, since the former was adopted on behalf of the Commission (see above), whereas the latter were entered into on the basis of an explicit delegation (contained in the faa).

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standing, while the next one addresses the Service’s capacity to bring judicial proceedings. As is well known, the standing of eu bodies is regulated in the tfeu, mainly at Articles 263 (action for annulment), 265 (action for failure to act), 270 (disputes between the Union and its servants), 335 (legal proceedings before the Member States’ courts) and 340 (action for damages). Among these provisions, Article 335 tfeu is the most straightforward in terms of standing issues. It stipulates that the Union is a party to legal proceedings in the Member States. This is logical, considering that the eu has a single personality in the legal orders of its Members. As a consequence, domestic proceedings should be brought against the eu.144 For this purpose, the Union is generally represented before national courts by the European Commission. However, the eu is represented by ‘each of the institutions’, by virtue of their ‘administrative autonomy’, in matters relating to their respective operation. Since the eeas has ample administrative autonomy, it should logically represent the Union in disputes falling within its area of activity – for instance, in disputes concerning the disposal of immovable property bought by the Service. Comparable rules apply to standing under Article 270 tfeu. According to this provision, disputes should take place between ‘the Union’ and its servants. The Staff Regulations make clear that eu ‘institutions’ represent the Union in disputes with their servants.145 Since the eeas is an ‘institution’ within the meaning of the Staff Regulations it should have the same standing as other institutions. The members of the eeas’s staff have already brought action against the Service in a number of cases; neither the parties nor the courts have ever questioned the Service’s standing.146 The procedure for action for damages (Article 340 tfeu) is also characterised by comparable norms, since the Union is always a party to the dispute. According to the Court of Justice, the eu is represented in proceedings for ­action for damages by ‘the institution or institutions against which the matter giving 144 Decentralised agencies constitute an exception to this rule, since they have their own budget and have legal capacity in the systems of eu Members. 145 Staff Regulations (n 26 p 109), Articles 22 and 91. See also Article 91a, according to which ­appeals must be made against ‘the institution’ to which the Appointing Authority entrusted with the exercise of powers is answerable. 146 See e.g. Order Locchi v eeas, F-154/12, eu:f:2013:29; Order Parikka v eeas (F-70/12) ­unreported, December 13, 2012; Martinez Erades v eeas, F-64/12 dep, eu:f:2013:111; Order Mariën v eeas, F-15/11, eu:f:2011:144; De Loecker v eeas, F-78/13, eu:f:2014:246; Rouffaud v eeas, F-59/13, eu:f:2014:49; zz v eeas, F-53/13, eu:f:2014:22; Delcroix v eeas, F-11/13, eu:f:2014:91.

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rise to liability is alleged’.147 The Court specified that the notion of ‘institution’ should be interpreted extensively, to encompass any body established by the Treaties and authorised to act in the eu’s name and on its behalf.148 This suggests that an action for damages may be brought against the eeas, in particular to make good any damage caused by the Service itself or by its servants in the performance of their duties.149 This would be the case, for ­instance, if the documents held by the Service ‘leaked’ to the press. In Nikolau the General Court held indeed that the Commission was liable for the moral damages caused by the illegal disclosure of information held by one of its departments.150 Given the eeas’s autonomy in the field of information security, any illegal disclosure of its documents should be attributed to the Service, which should consequently represent the Union in the ensuing judicial proceedings. The rules on standing in case of proceedings for annulment (Article 263 tfeu) and failure to act (Article 265 tfeu) are more complicated. According to Article 263 and 265 tfeu, the Court reviews the legality of acts of ‘institutions’, ‘bodies’, ‘offices’, or ‘agencies’ of the Union, ‘intended to produce legal effects vis-à-vis third parties’. Similarly, Article 265 tfeu gives the Court jurisdiction in case the ‘institutions’, ‘bodies’, ‘offices’, or ‘agencies’ of the Union failed to act, in infringement of the Treaties. These provisions, as interpreted by the Court, subordinate passive standing to three main conditions. In the first place, the organ that adopts the act, or that fails to act, should qualify as a ‘body’. According to the case-law, only the organs that are ­sufficiently autonomous to have legal personality may be considered as ‘bodies’ that stand before the Court.151 Since the eeas is autonomous and has legal personality, as 147 Wilhelm Werhahn Hansamühle and others v Council, C-63 to 69/72, eu:c:1973:121, para 7. 148 Société Générale d’Entreprises Electro-Mécaniques and Roland Etroy v European Investment Bank, C-370/89 (jurisdiction of the Court), eu:c:1992:482, paras 14–16. 149 See e.g. Chart v eeas, T-138/14, eu:t:2015:981. 150 Rectius, the eu was liable for the damage, and the Commission represented it before the Court. Nikolau v Commission, T-259/03, eu:t:2007:254. See also Xavier Groussot and Zina Popov, ‘What’s Wrong with Olaf? Accountability, Due Process and Criminal Justice in European Anti-Fraud Policy’ (2010) 47 Common Market Law Review 605, at 621. 151 The cjeu held in the famous fao case that Coreper cannot be a defendant in legal ­proceedings, since it is not a body having ‘powers of its own’, but rather an ‘auxiliary body’ of the Council, for which it carries out preparation and implementation work, see Commission v Council (fao) (n 46 p 68), paras 29–36. In other words, Union organs must not only be defined as ‘bodies’ in order to have passive standing, but they must also be autonomous from other organs. The General Court recently confirmed this, by arguing that an entity can only be considered as a ‘body’ for the purpose of Art. 263 tfeu if it has sufficient legal capacity in order to be considered as independent. In the absence of such

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shown above, it should logically be considered as a ‘body’ within the meaning of Articles 263 and 265 tfeu. Secondly, the ‘body’ should be responsible for the act or inaction. Pursuant to Article 263 tfeu, a body can only defend in Court the acts that may be attributed to it, taking into account the substance of the act, having regard to its content and all the circumstances in which it was adopted.152 The administrative acts formally qualified as instruments of the eeas and adopted by its officials are likely to be considered as acts of the Service.153 Some doubts may perhaps arise as to the attribution of the acts relating to the eeas’s staff and budget, since they may take the form of instruments of the High Representative. For instance, the already cited Decisions hr(2010) 002 (on the exercise of powers conferred by the Staff Regulations) and hr(2011) 001 (on the rules for the implementation of the eeas budget) are formally labelled as instruments of the High Representative. It is worth recalling, however, that the hr adopted these instruments as appointing authority and authorising officer of the eeas. Despite their nomen, therefore, they should be considered as acts of the Service – and should consequently be defended in Court by the eeas. Article 265 tfeu foresees a similar requirement: a body may defend only the failure to act in violation of requirements that bind that body directly.154 There is little doubt that the eeas is required to adopt certain acts. For instance, according to Article 7(1) of Regulation 1049/2001, read in combination with Article 11 of the eeas Decision, the eeas ‘shall within 15 working days from registration of the application […] either grant access to the document requested and provide access […] within that period or, in a written reply, state the reasons for the total or partial refusal’. Thirdly, the legal effects of the acts adopted (or not adopted, in violation of the Treaties) by the ‘body’ may be relevant. Under Article 263 tfeu a body may defend before the Court only acts that are intended to produce legal e­ ffects ­vis-à-vis third parties, i.e. acts capable of bringing about a distinct change in independence, an entity has ‘no legal personality’ and no capacity of representation in legal proceedings. eu ‘administrations’, are not independent and cannot stand before the Court, since they are organically and functionally dependent on other bodies, see the case-law cited in n 4 p 103. 152 Parliament v Council, C-181/91 and C-248/91, eu:c:1993:271, para 14. 153 See, for instance, the Decision of the Chief Operating Officer of the Service, eeas dec(2014) 032, not published in the oj. 154 In general terms, an eu body cannot be sued for its failure to adopt discretional acts, see Star Fruit co. v Commission, C-247/87, eu:c:1989:58. Cf. Pietro Manzini, ‘La proposizione di un ricorso in carenza in assenza di un obbligo di agire dell’istituzione: riflessioni sul caso TF1’ (1999) 9 Rivista italiana di diritto pubblico comunitario 381, at 408.

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the legal position of another subject.155 The capacity of eeas’s acts to bring about a change in the legal position of third persons appears incontestable. For instance, the decisions concerning the Service’s staff alter the scope of the rights and duties of its personnel. The acts implementing the eeas budget create rights and obligations upon the economic operators concerned, which consist mainly of the right to be paid from the eeas section of the eu budget.156 The eeas’s instruments on security may deny eu officers the security clearance that is necessary to access classified information in the possession of the Service.157 Finally, the decision through which the eeas denies access to its documents prevents the applicant from enjoying a right conferred by Regulation 1049/2001/ec.158 Under Article 265 tfeu, the binding character of the act (which was not adopted) may or may not be relevant. According to some authors, this provision should be read in light of Article 263 tfeu, since the procedures for failure to act and annulment may be seen as symmetric; hence, only the failure to adopt legal acts may be sanctioned under Article 265.159 The letter of Article 265, however, suggests that any failure to ‘act’, in the wider sense, falls within the scope of this provision. This may indicate that also actions that do not correspond to the adoption of legal acts may form the object of a ‘failure to act’ under Article 265 tfeu. Be that as it may, it is evident that the eeas is often bound to act, and is indeed obliged to adopt binding acts. For example, it must promptly decide whether to grant access to documents to any person that ­requires it, as seen above.160 Active Standing in Judicial Proceedings Concerning Administrative Issues The ability to bring action against the acts of other bodies is perhaps even more crucial than passive standing for the purpose of the protection of a

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155 See, inter alia, Commission v Council (erta) (n 63 p 28), para 42; Commission v Planet ae, C-314/11, eu:c:2012:823, para 16; ibm v Commission, Case 60/81, eu:c:1981:264, para 35; Athinaïki Techniki v Commission, C-521/06, eu:c:2008:422, para 29. 156 Rectius, these decisions create rights and obligations, and thus become final, once the  contracts with the economic operators are signed, see Financial Regulation (n 58 p 115), Art. 114. 157 Decision of the High Representative on the eeas security rules, oj 2013 C190/1, Annex A I. 158 Cf. ibm v Commission (n 142 p 131), paras 10–12. 159 Cf. Trevor C Hartley, The Foundations of European Union Law: An Introduction to the Constitutional and Administrative Law of the European Union (Oxford University Press 2014), at 397. 160 See Chapter 3.I.4.

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body’s ­autonomy. If another entity could interfere with the eeas’s prerogatives without encountering any judicial obstacle, the exercise of the Service’s administrative powers would risk being limited de facto.161 The Service’s active standing is quite evident with respect to the proceedings regulated in Articles 270 (staff issues) and 335 tfeu (procedures before national judges). These provisions indeed define the Union’s representation in judicial proceedings in general, without distinguishing between the capacity to bring action and the capacity to be a defendant. Therefore, active standing, in these cases, follows the same rules as passive legitimacy: since the eeas can represent the Union when the latter acts as a defendant, it can also bring action on its behalf. The arrangements are more complicated in the case of actions for annulment (Article 263 tfeu) and failure to act (Article 265). Article 263 tfeu enumerates some institutions that have the capability to access the Court in any case,162 or to defend their prerogatives.163 The eeas, of course, is not mentioned in that list. Article 265 tfeu, more generally, affirms that the ‘institutions’ of the Union may initiate proceedings. Not being an ‘institution’ within the meaning of Article 13 teu, the eeas cannot bring action under the same conditions as institutions proper. Articles 263 and 265 tfeu, at any rate, enable also another category of entities – ‘natural and legal persons’ – to bring proceedings before the Court. Being a legal person, the eeas may in abstracto attack the acts and inaction of other eu bodies. However, the access to Court of legal persons is subject to further restrictions. The conditions provided for in Article 265 tfeu are not exceedingly restrictive. This provision stipulates that a legal person may complain to the Court that an organ of the Union has failed to act, in infringement of the Treaties, provided that: (a) the defendant has failed to adopt an act ‘other than a recommendation or an opinion’, i.e. a binding act; (b) the act that was not adopted should have been addressed to the actor. These conditions may be easily fulfilled by the eeas (with respect to administrative issues). For instance, the Service may bring action against the Commission’s failure to adopt decisions authorising the compensation of certain administrative expenses incurred by the eeas on behalf of the institution.164 161 Cf. see Les Verts v Parliament (n 38 p 19). 162 This is the case of the European Parliament, the Council and the Commission. 163 This is the case of the Court of Auditors, the European Central Bank and the Committee of the Regions. 164 For instance, according to a Service-Level Arrangement concluded by the eeas and some Commission services, the institution must proceed to the pre-financing of its officers’

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The limitations of active standing under Article 263 tfeu are more taxing. This provision, as interpreted by the cjeu, stipulates that a legal person may institute proceedings against (a) legal acts addressed to that person; (b) regulatory acts of direct concern to that person and which do not entail implementing measures; or (c) non-regulatory acts of direct concern to that person and that affect it individually, that is by reason of certain attributes which are peculiar to it or by reason of circumstances in which it is differentiated from all other persons.165 The first category of acts – those addressed to the applicant – is not problematic: there are numerous binding acts addressed to the eeas, which the Service may consequently attack under Article 263 tfeu.166 The second category (regulatory acts) is more troublesome. Regulatory acts have been defined by the European judge as non-legislative acts of general application.167 It would seem that there is at least one category of regulatory acts of direct concern to the eeas and which do not entail implementing measures, that is, Commission acts implementing the Financial Regulation.168 Being Regulations adopted on the basis of Art. 290 tfeu, these acts are both non-legislative and of general application. They also directly affect the legal position of the Service, since they may interfere with the internal administration of the eeas.169 In other cases, at any rate, the eeas is unlikely to be able to posts in Delegations by providing for a payment to the eeas before the 1st of December each year, see Service Level Agreement between Commission services with staff in eu Delegations and the European External Action Service, 20 December 2010, not published in the oj, Art. 6: ‘1. every year […] the eeas shall address to [Commission] dg Devco a request for an advance payment of the expenditure related to Commission staff in the Delegations for the following year […] 2. […] dg Devco shall proceed to this advance payment by the 1st of December of the same year’. On the binding force of this kind of arrangements, see Chapter 3.II.2. 165 Plaumann v Commission, Case 25–62, eu:c:1963:17. See also Inuit Tapiriit Kanatami and Others v Parliament, C-583/11 P, eu:c:2013:625, para 72; Italy v Commission, C-298/00 P, eu:c:2004:240, para 36; and Comitato ‘Venezia vuole vivere’ v Commission, C-71/09 P, C-73/09 P and C-76/09 P, eu:c:2011:368, para 52. 166 As noted above, the Commission must indeed adopt decisions authorising the compensation of certain administrative expenses incurred by the eeas on behalf of the institution. 167 Cf. Inuit Tapiriit Kanatami and Others v Parliament, C-583/11 P, eu:c:2013:625, paras 57–60. 168 See Commission Delegated Regulation 1268/2012/eu, oj 2012 L 362/1. 169 For instance, Art. 66(4) of Commission Delegated Regulation 1268/2012/eu, oj 2012 L 362/1, provides for the merging of Commission and eeas’s ‘imprest accounts’ in eu Delegations and allows the institution’s staff, in exceptional circumstances, to function as eeas imprest administrators. The eeas is however unlikely to attack this act, in so far as the aforementioned provisions were adopted in the interest of the Service, since the latter is experiencing severe understaffing in Delegations, see eeas, 2012 Annual Activity

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bring proceedings against regulatory acts. Member States, the European Parliament, the Commission and the Council, bring privileged applicants, may potentially bring action to protect the prerogatives of the Service. However, this would restrict the eeas’s autonomy. The third category of acts – non-regulatory acts not addressed to the Service – is also quite problematic for the eeas’s active standing, since such acts should be of ‘direct and individual concern’ to the Service. This category comprises two kinds of instruments: (i) acts addressed to other persons and (ii) legislative acts. The eeas may be interested in bringing proceedings against acts addressed to other persons at least in one situation, that is, in respect of Commission instructions to its officers in Delegations. Although eu Delegations are part of the eeas, they are also staffed by Commission agents, who must receive instructions from their institution.170 Since such instructions affect the functioning of the Delegation, which is an eeas division, they affect the Service directly.171 They also concern the eeas individually, since the Commission cannot ignore that its instructions impinge on the Service’s prerogatives (and on those only). Therefore, if the Commission instructed its staff to perform cfsp-related tasks (which do not fall within the ambit of Commission powers), the eeas may take the institution to Court.172 The Service may also impugn at least one category of legislative acts, that is, instruments creating rules of general application which de facto address the Service only. This may be the case of Regulation 1080/2010/eu,173 which amended the Staff Regulations in order to adapt its rules ‘to the needs of the eeas’.174 This act affects the eeas directly, because it does not require further implementing measures and it concerns the Service individually, since almost

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Report (2013) accessed 19 December 2015, at 10. Notice that, according to the preamble of Decision 2010/427 (n 132 p 94), ‘when the Commission will issue instructions to delegations, it will simultaneously provide a copy thereof to the Head of Delegation and to the eeas central administration’. In general terms, acts concerning only the internal organisation of the work of eu ­bodies are internal documents that do not produce legal effects vis-à-vis third parties, see i­nter alia Order Group of the European Right v Parliament, C-78/85, eu:c:1986:227, para. 11; French Republic v Commission, C-366/88, eu:c:1990:348; Ashley Neil Mote v Parliament, T-345/05, eu:t:2008:440, paras 22–24. In the present case, however, the allocation of ­administrative responsibilities within the Commission affects a third party, i.e. the eeas, by restraining its ability to exert the powers conferred by Decision 2010/427. On the Commission’s instructions to eu Delegations, see Chapter 6.II.2.3. oj 2010 L 311/1. Art. 6(1) of Decision 2010/427 (n 132 p 94).

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all its provisions are meant to create rights or obligations for the eeas, and for this Service only.175 In case of other legislative acts, however, the active standing of the eeas is unlikely. Again, only privileged applicants may bring action to defend the eeas’s prerogatives.

Conclusion of Chapter 3

From the analysis it emerges that the eeas has a rather peculiar status, which explains why there is a lack of a clear and commonly accepted understanding of its nature.176 At first sight, the eeas may seem subject to the administrative supervision of several authorities – and may consequently appear as a normal service. The Parliament, and, above all, the Council, may determine the general rules that apply to the eeas’s staff, budget, and information security. More importantly, the Council may define – with the assent of the Commission – the basic structure of the Service. Another element that restrains the eeas’s autonomy from an administrative perspective is the role of the High Representative. He/she may adopt general rules that complement those defined by other organs, in respect to the eeas’s internal organisation, staff, budget, and information security. At the same time, the eeas enjoys ample autonomy in many respects, and appears akin to an institution. The Service may independently adopt decisions addressed to individuals, since it is autonomous from institutions and the High Representative. The only (but relevant) exception regards the appointment of top officials, which is in the hands of the High Representative, and influenced by the Commission and the Council. Moreover, the eeas has the capacity to autonomously engage with other bodies in the management of administrative issues. Thanks to its personality under eu law, the Service may indeed conclude interinstitutional agreements and stand before the Court, to defend its acts and its powers. All in all, from the perspective of administrative autonomy, the eeas appears as a ‘hybrid’ organ, part service and part institution. The latter dimension arguably prevails in practice, since the eeas is capable of independently managing its internal affairs whenever it conducts its day-to-day activities. 175 It is true that the eeas was neither interested in, nor capable of, challenging Regulation 1080/2010 (n 134 p 94) when it was adopted. Nonetheless, similar amendments to the Staff Regulation that take into consideration the specific situation of the eeas may possibly be attacked by the Service in the future. 176 Cf. Wouters and others (n 1 p 1), at 20.

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When commentators define the eeas as a ‘quasi-institutional’ body they presumably refer to this aspect of the Service’s status. As noted in chapter, the eeas’s ­capability to act autonomously in the administrative sphere contributes to reinforce its overall independence from other decision-makers, which – in turn – is necessary for coordinating the external action. The perspective of administrative autonomy, at any rate, is insufficient per se. Another, more ­important, issue must be taken into account: operational autonomy.

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Operational Autonomy of the eeas While administrative autonomy is certainly important, operational autonomy is perhaps even more crucial, since it relates to the independence of an organ vis-à-vis other authorities in the conduct of direct and substantive o­ perations.1 If a coordinator were incapable of operating independently in the conduct of substantive operations, in fact, it would hardly be able to steer the decisionmaking process – it would actually be steered by other authorities. Hence, Chapter 2 has suggested that the eeas should be not only administratively, but also operationally, autonomous in order to effectively coordinate eu f­ oreign affairs. The concept of operational autonomy is sometimes defined as ‘functional autonomy’. For instance, the Commission often used the expression ‘functional autonomy’ in the field of competition, to describe the absence of dependency of one undertaking from another.2 Similarly, the Court of Justice has excluded the ‘functional autonomy’ of a company because it was subject to the ‘control’ of other undertakings.3 The legislature has given a definition of ‘functional autonomy’ in Regulation 473/2013/eu, regarding the monitoring of draft budgetary plans in the Eurozone, making clear that a body is functionally autonomous from other entities if it does not take instructions from the latter.4 eu institutions also use another expression, ‘functional independence’, to describe operational autonomy. For example, Directive 2002/21/ec on electronic communications networks stipulates that regulatory authorities must be ‘functionally independent’ of all organisations providing electronic ­communications networks, in particular, in terms of ‘control’.5 1 See Chapter 2.II.3.2. 2 Cf. Commission Decision declaring a concentration to be compatible with the common market (Case No IV/M.2645 – saab/wm-data ab/saab caran jv), oj 2002 C 34/12, para 11. See also Commission Decision 89/191/eec (IV/31.866, LdPE), oj L 74/21, para 57; Commission Decision declaring a concentration to be compatible with the common market (Case No comp/m.2684 – enbw / edp / cajastur / hidrocantabrico), oj 2002 C 114/23, para 40. 3 AceaElectrabel v Commission, T-303/05, eu:t:2009:312, para 142. 4 Parliament and Council Regulation 473/2013/eu on common provisions for monitoring and assessing draft budgetary plans and ensuring the correction of excessive deficit of the ­Member States in the euro area, oj 2013 L 140/11, Art. 2(a)(ii). 5 Directive 2002/21/ec of the European Parliament and of the Council on a common r­ egulatory framework for electronic communications networks and services, oj 2002 L 108/33, Art. 3. Similarly, the Regulation on Cohesion Funds stipulates that the programmes financed by

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This practice suggests that the concept of ‘functional autonomy’ may be used, in eu law, to define the ability to conduct operations independently, that is, operational autonomy. Is it possible that, by entrusting the eeas with ‘functional autonomy’, Decision 2010/427 actually recognised its independence of action? Answering this question is not easy. If the administrative autonomy of eu bodies is a rather straighforward concept, ‘independence of action’ is more nebulous. The analysis seeks, first of all, to clarify what operational autonomy means in the legal order of the eu (Section i). This clarification will make it possible to assess the margins of autonomy of the eeas (Section ii). i

On the Different Approaches to Operational Autonomy

It is customary to think of the operational autonomy of eu bodies in formalistic terms, as either a status that is explicitly given by the law, or as a corollary of conferred powers (1). From such a perspective, the eeas would seem to lack autonomy in toto (2). However, this approach seems insufficient, since it is o­ ften at odds with reality (3). It is well known, in particular, that bureaucratic organs, such as the eeas, enjoy some degree of autonomy in practice (4). A more appropriate way to look at operational autonomy may arguably come through an assessment of its capacity to actually operate free from external control (5). 1 Formalistic Approach to Autonomy 1.1 Explicit Conferral of Autonomy In order to assess whether a body is operationally autonomous in the eu’s legal order, one may be tempted to limit the analysis to formalistic issues. The most obvious solution lies in ascertaining whether the legal order expressly confers autonomy to such a body. The eu legal order, in fact, recognises the operational autonomy of several organs which perform different functions. First of all, judicial bodies. It is well known that judges must enjoy independence, since they cannot be instructed about how they should exercise their function. The legitimacy and credibility of tribunals is indeed tied to the extent to which they are viewed as independent.6 Article 19(2) teu the Funds must be evaluated by experts that are ‘functionally independent’ of the authorities responsible for programme implementation, see Parliament and Council Regulation 1303/2013/eu, oj 2013 L 347/320, Article 123(5). 6 See e.g. Eyal Benvenisti and George W Downs, ‘Prospects for the Increased Independence of International Tribunals’ in Armin von Bogdandy and Ingo Venzke (eds), International Judicial

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acknowledges the need for autonomy in this field, by affirming explicitly that ‘the Judges and the Advocates-General of the Court of Justice, and the Judges of the General Court, shall be chosen from persons whose independence is beyond doubt’.7 Secondly, there are the bodies that perform supervisory functions. This is the case, for instance, of the eu’s Court of Auditors. This institution examines the accounts of all revenue and expenditure of the Union.8 The Court would hardly be able to perform a credible examination of the other institutions’ financial management if it were not autonomous. Hence, primary law explicitly recognises that the Court’s members are ‘completely independent in the performance of their duties’.9 Similarly, the eu’s legal order acknowledges the independence of the European Anti-Fraud Office (Olaf). This is a Commission department created by Commission Decision 1999/352/ec,10 which has functions of investigation with respect to Union bodies. Olaf is given independence in the discharge of its function, and consequently does not take instructions from any institution or body.11 The third category of operationally autonomous bodies comprises certain policy-making authorities. The European Commission is the best known example. Since the Commission was conceived as the motor of European integration, it should pursue objectives that are distinct from those of each Member State. In order to ensure the Commission’s credibility, the Treaties stipulate, as noted above, that the institution is ‘completely independent’ in carrying out its responsibilities.12 Fourthly, eu law grants operational autonomy to financial institutions, ­notably the European Investment Bank and the European Central Bank. The European Investment Bank grants loans that facilitate the financing of projects in all sectors of the economy.13 The fact that it conducts banking business makes it imperative for the eib to be in a position to ensure ­investors that Lawmaking: On Public Authority and Democratic Legitimation in Global Governance (Springer 2012); Marc Bühlmann and Ruth Kunz, ‘Confidence in the Judiciary: Comparing the ­Independence and Legitimacy of Judicial Systems’ (2011) 34 West European Politics 317. 7 See also, to that effect, Article 253(1) tfeu. 8 Article 287 tfeu. 9 Articles 285 and 286(3) tfeu. 10 Commission Decision 1999/352/ec, oj 1999 L 136/20. 11 Cf. Camós Grau v Commission (n 4 p 103), paras 66 and 131. See also Jill Wakefield, ‘Good ­Governance and the European Anti-Fraud Office’ (2006) 12 European Public Law 549, at 551; Groussot and Popov (n 150 p 133), at 605. 12 Articles 17 teu and 245 tfeu. See Chapter 2.III.1; see also Chapter 4.I.3. 13 Article 309 tfeu.

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it is acting with complete independence.14 It should therefore benefit from a reputation as an independent body on the financial markets.15 The eib Statute recognises the independence of the institution, by affirming that the Management Committee and the staff of the Bank are responsible only to the Bank, and are ‘completely independent in the performance of their duties’.16 In other words, as noted by the Court of Justice, the eib enjoys ‘operational autonomy’.17 The European Central Bank also benefits from operational autonomy. ­Article 130 tfeu stipulates that the institution cannot take instructions from any other Union body or from a Member State.18 Even more explicitly, the ecb statute stipulates that neither the Bank nor any member of its decisionmaking organs seeks or takes instructions from eu institutions or bodies, from any government of a Member State, or ‘from any other body’.19 The rationale for the ecb’s independence is well known: the Bank must be shielded ‘from all political pressure’ in order to be able to pursue its objectives.20 If the European ­Central Bank were subject to the control of political bodies and/or the ­Member States, in fact, it would not be credible in the pursuit of its primary objective: ‘maintain price stability’.21 The last category of autonomous policy-making organs consists of decentralised agencies. Following an international trend, the eu legislator set up numerous agencies, especially since the early 1990s.22 Agencies come in different forms, perform various functions, and operate in several sectors, ranging from food safety to asylum. At any rate, all decentralised agencies seem to e­ njoy 14 See Commission v eib, C-15/00 (n 79 p 75), para 2. 15 See id., para 104; Commission v eib, 85/86, eu:c:1988:110, para 30. 16 Protocol (No 5) on the Statute of the European Investment Bank, oj 2012 C 326/251, ­Article 11(8). 17 Commission v eib, 85/86 (n 15 supra), para 20; Commission v eib, C-15/00 (n 79 p 75), para 102. 18 This provision is formulated in terms quite close to those used in Article 17(3) teu, as noted in Commission v ecb, C-11/00, eu:c:2003:395, para 133. 19 Protocol (No 4) on the Statute of the European System of Central Banks and of the ecb, oj 2012 C 326/230, Article 7. 20 Commission v ecb, C-11/00 (n 18 p 144), para 134. 21 Article 119(2) tfeu. In fact, policy-makers may be tempted to favour expansionary monetary policies, in order to pursue employment stabilisation, whereas an independent central banker allegedly is in a position to conduct conservative policies, even when they are unpopular, see G Majone, ‘Two Logics of Delegation: Agency and Fiduciary Relations in eu Governance’ (2001) 2 European Union Politics 103, at 196–197. 22 For further on the development of eu agencies, see Herwig CH Hofmann, Gerard C Rowe and Alexander Türk, Administrative Law and Policy of the European Union (Oxford University Press 2011), at 286–292.

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some degree of operational autonomy.23 The rationale for such a­ utonomy is not always straightforward. In the case of the agencies dealing with economic regulation, in particular, decentralisation would seem to be motivated by the need to strengthen the agency’s credibility: the agency’s autonomy sends strong signals of regulatory stability to firms and consumers.24 1.2 Autonomy as a Corollary of Conferred Powers Although eu law explicitly recognises the autonomy of a limited number of bodies, one should not assume that the other eu organs necessarily lack ­operational autonomy. The capacity to operate without external control – at least from a formalistic perspective – is a property of any Union body onto which the legal order confers a power. International organisations, including the Union, are in a position in certain respects in detachment from their Members, and constitute a distinct entity, independent from the States that compose it.25 Having conferred competences on a separate organisation – the eu – the Member States cannot interfere with the exercise of its powers.26 The autonomy of the international organisation vis-à-vis its Members necessarily extends to its organs. The organisation may act only through the bodies that compose it. If the latter lacked autonomy from the Member States, the organisation would not be able to function ­without external influence.27 The autonomy of eu organs does not constitute a limit only vis-à-vis the Member States, but also vis-à-vis other eu organs. The institutions of the Union wield much more power than the organs of other international organisations. This has made the division between the eu institutions a c­ onstitutional

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Cf. Tovo (n 80 p 76), at 48–49; notice that Tovo terms as ‘dynamic functional autonomy’ what I term as ‘operational autonomy’. Arndt Wonka and Berthold Rittberger, ‘Credibility, Complexity and Uncertainty: Explaining the Institutional Independence of 29 eu Agencies’ (2010) 33 West European Politics 730, at 734 and 741. Cf. the Opinion of the International Court of Justice, Reparation for injuries suffered in the service of the United Nations, icj Reports, 1949, p. 174, at 179; Yasseen (n 102 p 123), at 43; Monaco, Les principes (n 2 p 1), at 93. Constantinesco, ‘L’article 5 cee’ (n 23 p 64). This arguably explains why AG Mengozzi defined autonomy as the corollary of the particular task conferred on the institutions ‘of operating in the interest of the eu’, see AG Mengozzi in Commission v Council, C-28/12 (n 61 p 73), para 55. See also AG Geelhoed in Betriebsrat der Vertretung der Europäischen Kommission in Österreich (n 62 p 73), para 98, and in ab v Finanzamt für den 6., 7. und 15. Bezirk (n 63 p 73), para 23.

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­ ecessity to prevent the concentration of uncontrolled power,28 in order to n balance the interests of the national governments and those of European integration,29 as well as to protect the interests of individuals.30 According to a widespread view, these objectives are generally pursued, at the State level, through the application of the doctrine of the ‘separation of powers’, whereby different functions (legislative, executive, or judicial) are generally attributed to different bodies (though one may wonder whether that is necessarily the case in practice).31 This doctrine does not apply as such in the European Union.32 Its function is performed by the principle of institutional balance, which is expressed in Article 13(2) teu, according to which each institution must act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions, and objectives set out therein.33 The Court of Justice has noted, in fact, that the Treaties set up a system for distributing powers among the different eu institutions, assigning to each organ its own role in the institutional structure of the Union and the accomplishment of the tasks entrusted to it.34 Therefore, the limits of the powers conferred on eu organs by specific provisions of the Treaties are to be inferred not from a general principle, but

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Schermers (n 101 p 123), at 169–170. Jörg Monar, ‘The European Union’s Institutional Balance of Power after the Treaty of Lisbon’, The European Union after the Treaty of Lisbon: Visions of Leading Policy-makers, Academics and Journalists (Publications Office of the European Union 2011), at 60. Jean-Paul Jacqué, ‘The Principle of Institutional Balance’ (2004) 41 Common Market Law Review 383, at 384. It would seem that the doctrine of separation of powers has never been applied sic et simpliciter in practice; its effects may have been ‘exagerated’ by the literature, as noted already by Federico Cammeo, ‘Della manifestazione della volontà dello stato nel campo del diritto amministrativo’ in Vittorio Emanuele Orlando (ed), Primo trattato completo di diritto amministrativo italiano, vol iii (Società editrice libraria 1907), at 8. This is not to deny that a ‘separation of power analysis’ is ‘descriptively accurate’ or ‘normatively attractive’, see Gerard Conway, ‘Recovering a Separation of Powers in the European Union’ (2011) 17 European Law Journal 304. However, the fact remains that the doctrine is not applied as such in the eu legal order. The Court’s case-law on institutional balance has been criticised by several authors, who have argued that the content of institutional balance and even its existence as a separate principle are uncertain. It is not necessary, for the purpose of this contribution, to explore this issue in detail. See further Merijn Chamon, ‘The Institutional Balance, an Ill-Fated Principle of eu Law?’ (2015) 21 European Public Law 371. Parliament v Council, C-70/88, eu:c:1991:373, para 21. See also Jacqué, ‘The Principle of Institutional Balance’ (n 30 supra), at 387–388.

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from an interpretation of the particular wording of the Treaty provisions in question.35 Observance of the ‘institutional balance’ of the Union means that each of the institutions must exercise its powers with due regard for the powers of the other institutions.36 The conferral of powers to the organs of the Union thus implies that they must respect each other’s prerogatives.37 From this requirement descends, as noted by Bieber, the principle of the ‘autonomy’ of eu bodies:38 each body is free to exercise the powers it has been conferred and cannot encroach upon the power of other institutions.39 In other words, the conferral of powers to eu organs means that they must enjoy autonomy in the exercise of their prerogatives. One may consequently argue that any body onto which the Treaties confer powers is autonomous from other authorities. 2 eeas’s Lack of Operational Autonomy from a Formalistic Perspective To effectively coordinate eu foreign affairs, the eeas should be, as recalled above, operationally autonomous from the main decision-makers of the external action. Hence, one may perhaps expect the eu legal order to explicitly confer such autonomy to the eeas. However, this is not the case. It is true that the eeas is functionally autonomous, and that its ‘functional autonomy’ may potentially be equivalent to ‘operational autonomy’. Yet, this equivalence is not inevitable, since ‘functional autonomy’ may have other meanings (­including 35 See France et al. v Commission, Cases 188-190/80, eu:c:1982:257, para 6. Cf. Monaco, Les principes (n 2 p 1), at 110–111. 36 Parliament v Council, C-70/88 (n 34 p 146), para 21. See also Jacqué, ‘The Principle of Institutional Balance’ (n 30 p 146), at 387–388. 37 Vlad Constantinesco, ‘L’équilibre institutionnel dans la Constitution de l’Union Européenne’, Le droit de l’Union européenne en principes: liber amicorum en l’honneur de Jean Raux (Apogée 2006), at 485; see also Luigi Daniele, ‘Le istituzioni politiche dell’Unione europea dopo il Trattato di Lisbona: verso un nuovo equilibrio?’ (2009) 4 Studi sull’integrazione europea 43; Lucia S Rossi, ‘A New Inter-Institutional Balance: Supranational vs. Intergovernmental Method after the Lisbon Treaty’, Scritti in onore di Ugo Draetta (Editoriale scientifica 2011); Thomas Christiansen, ‘The European Union after the Lisbon Treaty: An Elusive “Institutional Balance”?’ in Andrea Biondi, Piet Eeckhout and Stefanie Ripley (eds), eu Law after Lisbon (Oxford University Press 2012). 38 Roland Bieber, ‘The Settlement of Institutional Conflicts on the Basis of Article 4 of the eec Treaty’ (1984) 21 Common Market Law Review 505; see also Francis G Snyder, The Europeanisation of Law: The Legal Effects of European Integration (Hart 2000), at 95. 39 See Sébastien Roland, Le triangle décisionnel communautaire à l’aune de la théorie de la séparation des pouvoirs: recherches sur la distribution des pouvoirs législatif et exécutif dans la Communauté (Bruylant 2008), at 181–188.

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‘administrative’ independence).40 If the eeas performed judicial, quasi-­ judicial, investigative, or financial functions, one may possibly postulate that its ‘functional autonomy’ implies a status similar to that of the Court of Justice, of the Commission, or of the European Central Bank. Since the eeas is a novel and unique entity, such an assumption appears unwarranted. It may seem that, differently from eu institutions, eeas is not conferred operational autonomy in an implicit way either.41 The Treaties do not give the eeas any power. The only primary law provision that mentions the eeas, Article 27(3) teu, stipulates that the eeas assists the High Representative. Article 2(1) of Decision 2010/427 confirms the function of assistance of the eeas, by stipulating that the Service supports the High Representative in fulfilling ‘his/her’ mandates. In addition, the Decision affirms that the Service supports the President of the European Council, the President of the Commission, and the Commission in the exercise of ‘their’ respective functions. Decision 2010/427 should arguably be read in keeping with Article 298(1) tfeu, whereby – in carrying out their missions – eu institutions, bodies, offices, and agencies have the ‘support’ of a ‘European administration’, that is, a ‘service’. The eeas, in other words, is the ‘administration’ that ‘supports’ the hr.42 The characterisation of the eeas as an administration has two consequences. In the first place, the eeas cannot adopt legal acts relating to the management of eu policies. While the Council and the Parliament can adopt legislative acts and the Commission can take measures to implement them, the eeas may adopt only non-binding policy documents. The instruments labelled as ‘eeas’ in the register of the Service are indeed defined as ‘working documents’.43 Secondly, and most importantly, the eeas is formally subject to the control of other entities. The Service is under the authority of the High Representative, whom it assists, as explicitly affirmed by Article 1(3) of the Decision 2010/427. Hence, the members of the eeas’s staff must follow the instructions given by the hr.44 Similarly, the Service’s duty to assist other organs, notably the Commission, in the performance of their tasks implies that it must follow 40 41 42

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See Chapter 3. On the implicit conferral of autonomy, see above, Chapter 4.I.1.2. See also Mauro Gatti, ‘Coherence vs. Conferred Powers? The Case of the European External Action Service’ in Federico Casolari and Lucia Serena Rossi (eds), The eu after Lisbon: Amending or Coping with the Existing Treaties? (Springer 2014), at 249–250. See the eeas register, at accessed 31 November 2015. For example, see a publicly accessible document in the eeas register: ‘Note for the Attention of the Non-eu European nato Members and other Countries which are Candidates for Accession to the eu’, eeas(2015) 432, 19 March 2015. Decision 2010/427 (n 132 p 94), Article 6(4).

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their instructions in the conduct of activities that fall within the remit of their powers.45 Not having been explicitly conferred autonomy, and being subject to the authority of other entities, the eeas appears as non-autonomous from a formalistic perspective.46 Such a formalistic approach, however, does not seem sufficient, as shown in the next paragraph. 3 Insufficiency of the Formalistic Approach to Operational Autonomy From the above analysis it emerges that, although the eeas should be operationally autonomous in order to effectively coordinate eu foreign affairs, the Service was not formally granted this kind of independence. However, one may argue that the issue of operational autonomy cannot be analysed solely from a formalistic perspective. Such an approach may indeed suggest conclusions that are at odds with reality, and might lead one to overlook the legal instruments that are put into place to preserve (or restrain) operational autonomy in practice. The very Court of Justice, in fact, seems to recognise the opportunity of a pragmatic approach to operational autonomy. The Court’s pragmatism is testified by the case-law on competition: for the purpose of applying competition rules, according to the Court, the formal separation of two companies resulting from their having distinct legal identity is not decisive. The conduct of a subsidiary may be imputed to the parent company even if the two companies have separate legal personalities, provided that the subsidiary ‘does not decide independently upon its own conduct’,47 but carries out ‘the instructions given to it by the parent company’.48 This case-law suggests that the autonomy of an entity depends on its capability to operate without external interferences in practice. To be sure, it would not be opportune to mechanically apply the competition case-law in the institutional field, but the general approach of the  Court seems to confirm that formalistic considerations, albeit relevant, 45 46 47

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Id., Articles 6(4), 2(2) and 5(3). Cf. Thym (n 118 p 88), at 469. In other words, the will of an undertaking is imposed to another, see Pietro Manzini, ‘La  collusione tra imprese nella disciplina antitrust comunitaria’ (2009) 23 Diritto del commercio internazionale 821, at 828, particularly footnote 15. Akzo Nobel v Commission, C-97/08 P, eu:c:2009:536, para 58; See also, inter alia, Imperial Chemical Industries, Case 48–69, eu:c:1972:70, paras 132–134; Thyssenkrupp v Commission, T-144/07 et al., e:2011:364, para 92–94. For a critical appraisal of this case-law see, inter alia, Stefan Thomas, ‘Guilty of a Fault That One Has Not Committed. The Limits of the Group-Based Sanction Policy Carried out by the Commission and the European Courts in eu-Antitrust Law’ (2012) 3 Journal of European Competition Law & Practice 11.

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are not necessarily sufficient for a legal analysis of the issue of operational autonomy. One may easily note, in fact, that there is not always a clear correlation ­between operational autonomy in formalistic terms and in practice. Bodies that are formally ‘autonomous’ may be less than independent de facto. The Commission constitutes perhaps the most obvious example in this sense. The Treaties recognise the autonomy of this institution, both explicitly and ­implicitly.49 The Commission is nonetheless accountable, at the political level, to the European Parliament, which not only approves the appointment of the institution’s members, but may adopt a motion of censure, obliging them to resign.50 Moreover, the Commission is politically accountable to the Council and the European Council (and thus to the Member States) which nominate it.51 According to several commentators, the Commission has become very close to the Member States, because of the introduction of the rule whereby the institution is composed by ‘one national of each Member State’, applied since 2004.52 Since each State has a single Commissioner, the latter tends to identify with the interests of his/her own country.53 In light of the ties ­between the Commission and other authorities, one may easily understand why this institution, despite its formal autonomy, cannot disregard their views. It is well known, for instance, that the ‘conclusions’ of the Council, a nonbinding act, often call upon the Commission to take certain actions.54 Despite not ­being legally bound to respond, the Commission often follows the indications of the Council. Hence, its role has allegedly shifted from one of an ‘autonomous ­initiator’ to that of a ‘­reactive initiator’.55 This suggests that, although

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Another possible example is the Court of Justice, cf. Clifford J Carruba, Matthew Gabel and Charles Hankla, ‘Understanding the Role of the European Court of Justice in European Integration’ (2012) 1 American Political Science Review 214. See Articles 17(8) teu and Article 234 tfeu. Article 17(7) teu. See further Vlad Constantinesco, ‘La responsabilité de la Commission européenne : la crise de 1999’ (2000) 92 Pouvoirs 117. Now enshrined in Article 17(4) teu. Cf. Jean-Paul Jacqué, ‘La Commission européenne après Lisbonne’ in Frédérique Berrod and others (eds), Europe(s), droit(s) européen(s): Une passion d’universitaire – Liber amicorum en l’honneur du professeur Vlad Constantinesco (Bruylant 2015), at 245. Linda Senden, Soft Law in European Community Law (Hart 2004), at 194. See e.g. Paolo Ponzano, Costanza Hermanin and Daniela Corona, The Power of Initiative of the European Commission: A Progressive Erosion? (Notre Europe 2012) accessed 19 December 2015, at 43.

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the ­Commission is not ­entirely ­controlled by the Member States, it is not completely independent either. While some authorities are independent in theory, but not as much in practice, others are in the reverse situation. There are at least two judgements of the Court of Justice that provide some evidence in this respect. The first one – Mulders – sheds light on the autonomy of eu officers. In this case, the Court was called to determine, inter alia, whether an accounting officer could be considered as ‘independent’ from those whose authorizations of expenditure he had to verify, if there was a difference in rank between him and them.56 The Court answered affermatively, arguing that the independence of an official as regards the performance of his/her duties does not necessarily mean that he/ she should not be hierarchically inferior to other officers, but that he/she is not subordinate to any superior ‘in the actual performance of his duties’.57 This line of reasoning, developed in the field of staff management, may be applied by analogy to eu organs too: a body may be ‘independent’ even if it is hierarchically inferior to others, as long as it is not subordinate in the ‘actual performance’ of its duties.58 The Court has embraced a similar view of operational autonomy in Commission v ecb.59 In this case, the Court of Justice had to verify, inter alia, if the conferral of a power to Olaf to conduct internal investigations in the European Central Bank could undermine the latter’s independence. The Court acknowledged that the Treaties seek to shield the Bank from the ‘outside influences’ and that there are some formal aspects – such at the conferral of legal personality – that contribute to foster the ecb’s independence. However, the cjeu stressed that other ‘factors’ may also be conducive to strengthening the Bank’s independence, such as its exclusive power to dismiss its top officials.60 In other words, the Bank’s operational autonomy does not depend solely on its formal separateness from other bodies, but also on the existence of rules that protect its ability to function independently in practice. The legislature, too, is cognizant of the need to take into account several ‘factors’ to ensure the autonomy of eu bodies. Thus, for instance, the Regulation on which Olaf is based stipulates that, in order to ensure ‘complete independence’ in the running of the Office, its Director-General is appointed 56 57 58 59 60

Mulders v Commission, Case 8/69, eu:c:1969:69. Id., para 15. Cf. Tovo (n 80 p 76), at 55–56. Commission v ecb, C-11/00 (n 18 p 144). Id., paras 132–134.

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for ‘a non-renewable term of seven years’.61 This arrangement seems logical: by prohibiting the re-appointment of top officials, the legislature made sure that they could not be tempted to curry favour with their nominating authorities in exchange for a new term. This measure does not appear to be related to a f­ormalistic conception of autonomy: an organ may be formally autonomous even if its top officials have a renewable mandate (as in the case of the ­Commission). The introduction of non-renewable terms for top officials is, rather, a means through which the legislature fosters autonomy in practice. It may be argued that, by introducing rules that protect the actual independence of eu authorities, the legislature implicitly acknowledged that a purely formalistic approach to autonomy is, in fact, insufficient – from a legal perspective, too. 4 Autonomy of Administrations in Practice The insufficiency of a formalistic approach to operational autonomy is particularly evident when one focuses on administrative entities, such as the ­services of eu institutions (and, possibly, the eeas itself). eu services, as noted above, are not entrusted with powers and, generally speaking, are not autonomous from a formalistic viewpoint.62 However, the experience suggests that administrations do enjoy some degree of autonomy in practice. The literature on States’ bureaucracies indicates that they influence the ­implementation and revision of the policies formally decided by the legislature, and create policies where legislatures have avoided doing so.63 Some authors even claim that administrations constitute a ‘fourth branch of government’64 and that ‘bureaucratic politics rather than party politics has ­become the dominant theatre of decision in the modern state’.65 The autonomy of bureaucrats is usually explained through a reference to their monopoly on information. 61

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Parliament and Council Regulation 883/2013/eu/Euratom, concerning investigations con­ ducted by Olaf, oj 2013 L 248/1, Art. 12(3) and preamble, whereas 42. Similarly, Article 11(2) of the ecb Statute (n 19 p 144), stipulates that the Bank’s President, Vice-President and other members of the Executive Board are appointed by the European Council and have a non-renewable mandate of eight years. See Chapter 4.I.2. It is worth noting that there are exceptions: for instance, eu law e­ xpressly confers autonomy to Olaf, see Chapter 4.I.1.1. John D Huber, Charles R Shipan and Madeleine Pfahler, ‘Legislatures and Statutory ­Control of Bureaucracy’ (2001) 45 American Journal of Political Science 330. Cf. Kenneth J Meier, Politics and the Bureaucracy: Policymaking in the Fourth Branch of Government (5th ed, Thomson/Wadsworth 2007). Francis Edward Rourke, Bureaucracy, Politics, and Public Policy (Little, Brown 1976), at 183–184.

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The staff of administrations has vast knowledge about policy issues, which is often unavailable to the politicians that sit (above them) in political institutions. ­Politicians may encounter difficulties in evaluating the b­ ureaucrats’ ­performance and, consequently, in controlling it.66 As already noted by Weber, the political master may find himself ‘in the position of the “dilettante” who stands opposite the “expert,” facing the trained official who stands within the management of administration’.67 Bureaucracies can thus develop independently of the authorities that gave them their original mandate.68 Hence, the administration can undertake actions on its own initiative, including behaviour that political institutions may not welcome.69 Political organs often seek to restrain the administrations’ autonomy through different solutions, such as introducing rigid procedures or threatening to cut their budgets. However, these solutions are not always effective.70 If a political institution defined the procedures of its administration too rigidly, there would be the risk that the latter may not be able to perform its function efficiently.71 Similarly, cutting the budgets of bureaucracies to punish the abuse of their independence would be likely to hinder the performance of the tasks for which bureaucracies are created. The control over administrations becomes particularly problematic when multiple authorities have authority over the same bureaucracy: there is the risk that the imposition of sanctions on the bureaucrats may expose differences between the views of political authorities.72 66 67

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Mark A Pollack, ‘Delegation, Agency, and Agenda Setting in the European Community’ (1997) 51 International Organization 99. Max Weber, ‘The Power Position of Bureaucracy’, in From Max Weber: Essays in Sociology (Routledge, 2009), 232–235, at 232; See also Michael N Barnett and Martha Finnemore, ‘The Politics, Power, and Pathologies of International Organization’ (1999) 53 International Organization 699, at 708; Antonis A Ellinas, Bureaucratic Autonomy and the European Commission: Europe’s Custodians (Cambridge University Press 2012), at 12. Mark Furness, ‘Who Controls the European External Action Service? Agent Autonomy in eu External Policy’ (2013) 18 European Foreign Affairs 103. Id., at 105. D Roderick Kiewiet, The Logic of Delegation: Congressional Parties and the Appropriations Process (University of Chicago Press 1991), at 27. Cf. Terry M Moe, ‘The Politics of Structural Choice: Toward a Theory of Public Bureaucracy’ in Oliver E Williamson (ed), Organization Theory: From Chester Barnard to the Present and Beyond (Oxford University Press 1990), at 228. Mathew D McCubbins and Talbot Page, ‘A Theory of Congressional Delegation’ in Mathew D McCubbins and Terry Sullivan (eds), Congress: Structure and Policy (Cambridge University Press 1987).

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These considerations, which regard the bureaucracies of States, would seem to apply to the administrations of international organisations too.73 The b­ ureaucracies of eu bodies, in particular, are known to wield considerable influence on policy-making, thanks to their quasi-monopoly on information. Commission services, for instance, are known to exercise a central role in virtual everything the Commission does,74 since they have accumulated considerable technical and legal expertise, and enjoy access to information that would be difficult for even the best organised national administrations to gather.75 The interviews conducted by Ellinas suggest that about half of the Commission’s top officials think that their dgs influence the College of the Commissioners more than the College influences them.76 Even the Council General Secretariat – a relatively small bureaucratic body, which initially performed administrative tasks – progressively developed into a quasi-executive office making policy on its own.77 Introducing the Pragmatic Approach: Operational Autonomy as Freedom from Control It emerges from the analysis that operational autonomy, which is an essential requirement for a coordinator like the eeas, can hardly be ascertained by adopting a formalistic perspective. Arguably, a more comprehensive and pragmatic approach is required. The performance of a pragmatic assessment may raise some methodological issues in the context of a legal analysis, given the intrinsically formalistic nature of the law. One should note, at any rate, that the sphere of operational autonomy of an authority is defined, first and foremost, by legal norms, which 5

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Cf. Seidl-Hohenveldern (n 4 p 1), at 104 ; Amerasinghe (n 73 p 75), at 156. Liesbet Hooghe and Hussein Kassim, ‘The Commission’s Services’ in John Peterson and Michael Shackleton (eds), The Institutions of the European Union (Oxford University Press 2012), at 174. See Hussein Kassim, ‘Conclusion’ in Hussein Kassim, B Guy Peters and Vincent Wright (eds), The National Co-ordination of eu Policy: the Domestic Level (Oxford University Press 2000); Hussein Kassim and Anand Menon, ‘The Principal-Agent Approach and the Study of the European Union: Promise Unfulfilled?’ (2003) 10 Journal of European Public Policy 121, at 128; Conway (n 32 p 146), at 312. Ellinas (n 67 p 153), at 72. Thomas Christiansen, ‘Out of the Shadows: The General Secretariat of the Council of Ministers’ (2002) 8 The Journal of Legislative Studies 80, at 89; see also Hylke Dijkstra, ‘Explaining variation in the role of the eu Council Secretariat in first and second pillar policy-making’ (2010) 17 Journal of European Public Policy 527; Thomas Christiansen and Sophie Vanhoonacker, ‘At a Critical Juncture? Change and Continuity in the Institutional Development of the Council Secretariat’ (2008) 31 West European Politics 751.

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define legal relationships and procedures, and which may be analysed from a legal viewpoint.78 This is particularly true in the field of public ­administrations: it is one of the main purposes of administrative law to help ‘politicians retain control of policymaking’.79 Since a study of operational autonomy should verify the independence that a body enjoys in practice, it should take into account the capacity of that body to actually operate free from the influence of other entities. It is submitted, therefore, that operational autonomy should be intended as the ability to operate freely from external control.80 One may assume that an authority that is fully controlled by another one is not truly independent; vice-versa, a body that is not controlled by any other entity may be termed as operationally autonomous.81 ‘Control’ is seldom full or entirely absent: the influence that an entity exerts on another is a matter of degree, and may take different forms. It is opportune, therefore, to distinguish between diverse kinds of control. Building on Monaco’s categorisation,82 one may distinguish between three types of control: hierarchical,83 political, and judicial. The next paragraphs describe these 78

For example, the restraints to the Commission’s discretion in the exertion of its power of initiative depend from eu legislative procedures (set in the Treaties), which give the Council the power to approve (or not) the Commission’s proposals. The procedure for the appointment of the institution (also set in the Treaties) further contributes to shape the degree of influence that the Member States may exert on the institution. 79 Mathew D McCubbins, Roger G Noll and Barry R Weingast, ‘Administrative Procedures as Instruments of Political Control’ (1987) 3 Journal of Law, Economics, & Organization 243, at 246. 80 The concept of ‘control’ is understood in a broad way in this analysis, as the capability to exert influence. To be sure, control may be defined in other ways; for instance, it may be termed as the function of overseeing the application of the law in a given legal order. Cf. Riccardo Monaco, ‘Le contrôle dans les organisations internationales’, Scritti di diritto delle organizzazioni internazionali (Giuffrè 1981), at 322–323. 81 It is worth noting that the present analysis deals with the issue of ‘control’ from an ­internal perspective, to define the relationship between the organs of an international organisation. The present investigation does not seek to assess the issue ‘control’ in terms of ­international law (particularly, in terms of the rules on international responsibility). On the latter topic see, inter alia, Pietro Pustorino, ‘The Control Criterion between Responsibility of States and Responsibility of International Organizations’ in Roberto Virzo and Ivan Ingravallo (eds), Evolutions in the Law of International Organizations (Brill | ­Nijhoff 2015). 82 Monaco, Les principes (n 2 p 1), at 160. 83 Monaco speaks of ‘legal control’, rather than ‘hierarchical control’, defining it as a form  of  control that has ‘an administrative character’ and comes close to the control that  ­administrative organs exercise vis-à-vis the authorities that constitute the public

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three sorts of control, in turn. This categorisation is relied on in the second section to analyse the forms of control that apply to the eeas. 5.1 Hierarchical Control The eeas, as noted above, functions as a ‘service’ in the operational domain.84 eu services, like the ministries of States, are organised hierarchically, with a political organ at the top: Commission dgs, for instance, are under the authority of commissioners (like the States’ ministries, which are under the authority of ministers). The superordinate bodies in hierarchies, such as commissioners, normally exercise hierarchical control over subordinate organs: they may issue instructions to inferior authorities and oversee their decision-making process, by blocking or modifying the instruments their subordinates draft before they are finalised. For example, a Commissioner may block the adoption of an instrument prepared by his/her administration, simply by not proposing it to the College of the Commissioners. In addition, superordinate authorities may control their subordinates by threatening to adopt sanctions, such as reducing their budget, modifying their internal organisation, reducing the scope of their responsibilities, or demoting their officials. As the next section will make clear, a hierarchical relationship exists between the eeas and the hr, and between the Service and the Commission.85 5.2 Political Control One may think also of another form of control, which may be termed as ­political control. In principle, one may argue that political control, being ‘­political’, ­cannot be part of a legal analysis. Even ‘political’ control, at any rate, requires legal instruments to be implemented, which one may analyse from a

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administration lato sensu intended, see Monaco, Les principes (n 2 p 1), at 161. Monaco lists several types of ‘legal control’; this analysis focuses on the form of legal control that is most likely to affect the eeas, i.e. hierarchical control. It would not seem necessary, in fact, to investigate the application of other forms of administrative control, such as ‘accounting control’, in the case of the eeas (though such an analysis may be opportune in respect of other bodies, cf. Tovo (n 80 p 76), at 327–334). In another occasion, Monaco analysed hierarchical control, focussing on the relationship between the members of international organisations’ staff – whereas the present investigation takes into account also the possibility of a hierarchy between public bodies, cf. Monaco, ‘Le contrôle dans les organisations internationales’ (n 80 p 155), at 329–331. See Chapter 4.I.2. See Chapter 4.II.1.1 and 4.II.1.2.

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legal perspective. In fact, the idea of political control and the complementary idea of ‘accountability’86 are routinely used in legal analyses.87 For instance, it is commonly argued that parliaments exert ‘political control’ over governments, and that governments are ‘politically accountable’ to parliaments.88 By omitting to investigate political control from a legal perspective, one would risk conducting an incomplete analysis, which does not take into account nonhierarchical mechanisms for control (even when they are regulated by legal instruments). To the best knowledge of the author, there is no generally accepted definition of political control. One may broadly define it as the use of positive or negative sanctions – or the threat of their use – as a means to steer the conduct of other entities. This definition has the advantage of capturing the procedural dimension of control, which can be studied from a legal perspective. The next section will indeed show that several authorities may exploit different procedures to influence the activity of the eeas, including eu institutions and the Member States.89 The broad definition of political control adopted here has a shortcoming, since it partially overlaps with the notion of hierarchical control: both concepts, indeed, relate to the use of sanctions. However, one may distinguish p ­ olitical and hierarchical control, since hierarchically superordinate authorities may also use other channels to exert control. They may indeed issue instructions, and block or modify the decisions of their subordinates. There are, nevertheless, some specific situations in which hierarchical control and political control overlap almost entirely. This is the case of the law-making procedures that involve two or more bodies: if an authority has the power to make a proposal, while another may approve it, the latter may come to exert some degree of control over the formation and the substance of the former’s decision,90 by 86

One may define accountability as a relationship between an actor and a forum, in which the actor has the obligation to explain and justify his or her conduct, the forum can pose questions and pass judgment, and the actor might face consequences, see Mark Bovens, ‘Analysing and Assessing Accountability: A Conceptual Framework’ (2007) 13 European Law Journal 447, at 450. 87 See e.g. Luc FM Verhey, Philipp Kiiver and Sandor Loeffen (eds), Political Accountability and European Integration (Europa Law 2009); Giuseppe Ugo Rescigno, La responsabilità politica (Giuffrè 1967). 88 Similarly, the Assemblies of international organisations typically exert ‘political control’ over other organs, see Monaco, ‘Le contrôle dans les organisations internationales’ (n 80 p 155), at 326–327. 89 See Chapter 4.II.2. 90 Monaco, Les principes (n 2 p 1), at 165.

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modifying the proposal or threatening to block the decision-making process. Since the situation of the body that introduces the proposal is not entirely different from that of hierarchically subordinated authorities, one may speak of quasi-hierarchical control. This kind of control characterises the relationship between the eeas and the Council, as shown below.91 5.3 Judicial Control Judicial control, as is well known, consists in the review of the acts of an authority by a judicial organ. This form of control is expressed, in the legal order of the eu, by the procedures before the Court of Justice, and especially by the procedure of annulment (Article 263 tfeu). The cjeu should not, as a general rule, make a substantive evaluation of eu institution’s policies.92 As noted in Chapter 2, the eeas should be autonomous from the principal decision-makers of the external action – i.e. the Council, the Commission, and the Member States’ governments. It would take a stretch of the imagination to compare the policy-making role of these authorities to that of the Court of Justice, especially in foreign affairs. Hence, this analysis will not take into account judicial control as such. The position of the eeas vis-à-vis the cjeu may nonetheless be relevant for another reason: policy-making bodies (notably the Council and the Commission) may use judicial review as a means to enforce their control over the Service. The next section addresses the issue of judicial control solely from this perspective.93 ii

Extent of the eeas’s Operational Autonomy

The legal design of the eeas, it has been argued, should reflect its mission: coordinating eu foreign affairs. Hence, the Service should be operationally autonomous, that is, capable of acting free from external control (at least to 91 92

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See Chapter 4.II.1.3. To be sure, several observers have accused the Court of ‘judicial activism’ or ‘judicial policymaking’; ex multis, Hjalte Rasmussen, On Law and Policy in the European Court of Justice: A Comparative Study in Judicial Policymaking (Brill 1986). It has also been argued that the Court acts as ‘an autonomous norm–setter’ to pursue its own priorities, see Henri De Waele and Anna Van der Vleuten, ‘Judicial Activism in the European Court of Justice – The Case of lgbt Rights’ (2011) 19 Michigan State Journal of International Law 639, at 663. Be that as it may, it would seem evident that the Court’s role in policy-making can hardly be compared with that of the Council or the Parliament. See Chapter 4.II.3.

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a certain extent). The eeas is indeed likely to enjoy the same operational autonomy as the other administrations of the Union, and even more: the Service may exploit the possible contrasts between its multiple masters – the High Representative, the Council and the Commission – to ensure a certain margin of manoeuvre.94 This section seeks to define the ability of the Service to act autonomously, through an analysis of the instruments that eu institutions and Members may use to control the Service in the operational sphere. The study begins by focussing on the relationship between the eeas and the authorities that may exercise hierarchical or quasi-hierarchical control over it, i.e. the High Representative, the Commission and the Council (1). The attention then turns to the relationship with the authorities that may exert political control over the ­Service – i.e. the European Council, the Member States, and the European ­Parliament (2). Finally, this section discusses whether eu institutions and States may use judicial procedures to enforce their control over the eeas (3). 1 Hierarchical Control over the eeas 1.1 (Apparently) Complete Control of the High Representative Among the different subjects that the eeas must support, the High Representative is the one that is most likely to exert control over the Service. The very Decision 2010/427 explicitly stipulates that the eeas is ‘placed under the authority of the High Representative’ (Article 1(3)), and that it is managed by an Executive Secretary-General who operates ‘under the authority’ of the hr (Article 4(1)). Moreover, the Decision stipulates that Heads of Delegation are ‘accountable to the High Representative’ for the overall management of the work of their Delegations (Article 5(2)). In other words, the eeas is hierarchically subordinated to the hr. Consequently, the hr has the power to send instructions to the eeas, as recognised by Article 6(4) of Decision 2010/427, whereby the eeas staff must not take instructions from any government, authority, organisation, or person ‘other than the High Representative’.95 The rationale for this power of the High Representative is transparent. The eeas, as noted above, has no formal decisionmaking power, but assists the hr, by recommending that he/she adopts legal acts (in the cfsp area), or submits proposals to the Commission for adoption

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Moreover, it is understood that eeas officials probably try to act in ways that reinforce the Service’s autonomy: augmenting the eeas’s independence is a means of empowering themselves, see Furness (n 68 p 153), at 109. See also Article 5(3) of Decision 2010/427 (n 132 p 94).

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(in the non-cfsp field).96 This means that the staff of the Service must present the High Representative with draft texts, which the latter may subsequently (i) adopt as his/her own acts (in the cfsp field), or (ii) propose to the Commission for adoption (in the non-cfsp area). Hence the eeas’s staff must act consistently with the instructions of the hr; if they were to disregard them, the High Representative may decide to block the decision-making process, or request that the proposals be redrafted. The High Representative may also threaten the use of sanctions against his/ her subordinates. The hr may, in particular, initiate disciplinary proceedings against the eeas’s staff, including permanent officials and seconded diplomats, and eventually impose disciplinary measures, ranging from written warnings to dismissal.97 In case disciplinary action were not possible or convenient, the High Representative may punish his/her subordinates by transferring them to other posts, notably by moving the members of the staff to less prestigious ­positions. Union organs enjoy wide discretion to assign their staff:98 a deci­ sion regarding the assignment of a member of the staff may be overturned judicially only if the institution used its discretion ‘in a manifestly incorrect fashion’.99 Even mere ‘internal relationship difficulties’ may justify the transfer of a person in the interests of the service.100 The discretion of the appointing authority is particularly ample in the field of diplomacy, since diplomatic functions ‘absolutely require the confidence of those involved’: eeas staff members in Delegations should enjoy the confidence of their superiors,101 as well as that of the eu’s international partners.102 It is worth noting that the High Representative has authority over the eeas in all the areas of the latter’s activity, including cfsp and non-cfsp sectors. One may thus be tempted to conceive the eeas as a mere ‘extension’ of the hr, which has no autonomy in the eu’s institutional system.103 If this were true, the eeas would bring limited added value to eu policy-making. For instance, 96 97

See further Chapter 6.I.2.1. See the Staff Regulations (n 26 p 109), Article 86 and Annex ix; see also ceos (n 26 p 109), Article 50a. 98 De Loecker v eeas (n 146 p 132), para 59; De Albuquerque v Commission, F-55/06, eu:f:2007:15, para. 55. 99 De Loecker v eeas (n 146 p 132), para 61. 100 Id., para 63; List v Commission, Case 124/78, eu:c:1979:192, para 13. 101 Cf. De Loecker v eeas (n 146 p 132), para 66: ‘il existe des indices fiables selon lesquels le seae avait à tout le moins perdu confiance dans la gestion de la délégation par le requérant’. 102 Ojha v Commission, C-294/95 P, eu:c:1996:434, para 42. 103 Probably, this explains why other studies on the autonomy of the eeas do not systematically assess its independence vis-à-vis the hr, cf. Furness (n 68 p 153); Morgenstern (n 48 p 113).

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if the Commission considered a specific High Representative as too close to the Member States (or a specific country), it would also perceive the eeas as a longa manus of eu countries; hence, it might become unwilling to cooperate with the Service, thereby reducing its coordinating potential.104 Nonetheless, one should note that the High Representative’s control over the Service may be more limited than it appears at first sight. In the first place, time and resource constraints may limit the hr’s oversight. The High Representative is unlikely to oversee all the actions of eeas staff, and can hardly activate sanction mechanisms personally.105 To be sure, this problem potentially affects any political organ, but appears particularly serious for the hr, given the multiplicity of his/her tasks and the size of his/her services. For instance, it would not be unrealistic to assume that the Commissioner for Health and Food Safety has a detailed knowledge about the activities of dg Health and Food Safety, which is composed of six directorates.106 The High Representative is in a different position, considering that he/she has to supervise three times as many directorates in the eeas, to which one must add several eu ­Special Representatives and the Foreign Policy Service in the Commission. Not to mention the responsibilities of the hr as President of the Foreign Affairs Council and eu external representative. In the words of an eeas official: ‘there is the functional hierarchy as defined by Lady Ashton […] but we have our “marge de manoeuvre” within which we can act’.107 A solution for this problem may lie, in theory, in the creation of a bureaucratic structure that oversees the work of the rest of the administration. The Commission has set up such a department – the Secretariat General – which supervises the work of all the other Commission services, ensuring that they act in accordance with Commission procedures, and liaise properly with 104 See Chapter 2.II.2. 105 Of course, the High Representative, like Commissioners, has a cabinet, whose members provide him/her with support and guidance, cf. Nedergaard (n 147 p 98), at 106–107. However, even the hr’s control over the cabinet cannot be taken for granted, since the appointment of its members may not exactly follow the hr’s preferences. For instance, the head of Federica Mogherini’s cabinet (Stefano Manservisi) is a high official of the Commission, with more than 30 years of experience in the institution and, apparently, no relevant ­pre-existing connections to the hr herself. 106 See the organisational chart of dg Health and Food Safety, at accessed 18 November 2015. 107 Thomas E Henökl, ‘The European External Action Service: Torn Apart between Several Principals or Acting as a Smart “Double-Agent”?’ (2014) 10 Journal of Contemporary European Research 381, at 394. This official spoke about the autonomy of Delegations; at any rate, it would seem fair to extend this argument to the eeas as a whole.

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­other bodies.108 Hence, the Secretariat functions as a proxy of the College of the Commissioners in the exertion of control over the institution’s structure: Commission dgs, such as Health and Food Safety, do not operate in isolation, but must collaborate with the Secretariat. The eeas’s work, on the contrary, is not supervised by a secretariat of the High Representative (which does not exist).109 As a result, most preparatory instruments110 drafted by the eeas are likely to be approved, in practice, by its officials – and by them only. There is indeed a whole category of documents in the eeas’s register – labelled as ‘eeas’ – which consists of ‘working documents transmitted by the eeas to other European Union institutions or bodies and other eeas documents approved internally’.111 An example of such an instrument is the Political Framework for a Crisis Approach in Libya, which the Service presented to the Council in October 2014.112 This document appears of primary importance, since it provides ‘a basis for a shared conflict assessment for Libya’, and should guide ‘the discussion on the overall direction for eu engagement in the Libyan crisis’. Yet the document seems to have been approved only by the eeas: it was sent to the Council by the Service, and does not even mention the High Representative. Another solution for the High Representative’s problems in controlling the eeas may lie in the appointment of persons that enjoy his/her full confidence as top officials of the Service. The position of the Executive Secretary-General is particularly important for this purpose, since he/she manages the whole Service and takes all measures necessary to ensure the functioning of the eeas, including its administrative and budgetary management (Article 4(1) Decision 2010/427). In theory, the High Representative may nominate persons he/she trusts as eeas Executive Secretaries-General. However, that does not seem to be always the case in practice. Apparently, neither Catherine Ashton nor Federica Mogherini were capable of independently selecting the SecretaryGeneral of their own Service. Considering that the first (Pierre Vimont) as well as the second one (Alain le Roy) have the same nationality (French), and 108 Hooghe and Kassim (n 74 p 154), at 182. 109 The eeas must cooperate with the Secretariat of the Commission, but the latter department (i) works on behalf of the Commission (and not of the hr) and (ii) supervises the eeas’s operations only in respect of issues falling within the remit of the Commission’s powers (i.e. non-cfsp matters). 110 On preparatory documents see further Senden (n 54 p 150), at 118. 111 See the eeas website, accessed 18 ­November 2015. 112 The document, numbered as ‘eeas.iv.a.4(2014)3578948’, is annexed to Council doc. 13829/14, 1 October 2014.

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the same status (seconded national diplomats), it is fair to assume that their appointments were the product of political negotiations among the Member States, and not a choice of the High Representatives. Therefore, one may suppose that the hr may hardly rely on the Executive Secretary-General to keep the eeas ‘on a short leash’.113 Finally, one may hypothesise that the High Representative’s control over the Service may be reduced in practice because he/she is not the only master of the eeas. When the Service operates in the area under the responsibility of the Commission, in particular, it is subject to the hierarchical control of the institution. In this situation, the hr performs the role of a Commissioner, who may issue instructions and block the action of his/her subordinates. Yet he/she must, in turn, submit his/her own decisions for approval to the College of the Commissioners. The hr thus maintains a certain grip on his/her Service, but cannot expect to control it free from external influences. This issue is further explored in the next paragraph. 1.2 Functionally Limited Control of the Commission Besides the High Representative, the Commission may also exert hierarchical control over the eeas. This may hint at the possibility of a ‘supranational’ influence on the Service, which may balance, at least in part, the ‘intergovernmental’ influence of the Council (discussed below).114 Primary law indirectly hints at a subordination of the eeas to the Commission, by stipulating that the Service assists the hr (Article 27(3) teu), while the latter is one of the Vice-Presidents of the Commission, bound by ­Commission procedures when exercising his/her responsibilities within the College (­Article 18(4) teu). These provisions may perhaps suggest that the eeas should be organically subordinated to the Commission, to the extent that it should become a department thereof, as initially requested by the Parliament and some Member States.115 However, the legislature did not support this interpretation of Articles 18(4) and 27(3) teu, and did not integrate the eeas into the Commission’s organisation. Decision 2010/427, in fact, explicitly stipulates that the eeas is ‘separate’ from the Commission (Article 1(2)), and is not a department thereof. 113 It is even possible, in theory, that the Executive Secretary-General, given the procedure and political context of his/her appointment, may be accountable to the Member States (and particularly to his/her own country). This problem is addressed below, see Chapter 4.II.2.2 and 4.II.2.3. 114 See Chapter 4.II.1.3 and 4.II.2.1. 115 Morgenstern (n 48 p 113), at 12.

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The legislature decided to subordinate the eeas to the Commission, not from an organic perspective, but from a functional one. The Service assists the hr in his/her capacity as Vice-President of the Commission (third indent of Article 2(1) of Decision 2010/427), as well as the President of the Commission, and the Commission as a whole in the exercise of their respective functions (Article 2(2)). When it performs this task of assistance to the Commission, the eeas is hierarchically subordinated to the institution and generally functions as a service thereof.116 In the first place, the Commission may send instructions to the Service. ­Article 6(4) of Decision 2010/427 recognises this explicitly, by affirming that eeas staff should neither seek nor take instructions from any organisation outside the Service, or from any body or person other than the High Representative, ‘without prejudice’ to the third indent of Articles 2(1) and Article 2(2) (which provide for the eeas’s duty to assist the hr/vp and the Commission at large). In other words, the Commission may send instructions to the eeas whenever it assists the hr/vp or the Commission as such.117 In the latter case, the Commission arguably does not need to route instructions via the High Representative (in his/her capacity as Commission vice-President), but may send them directly to the Service.118 Secondly, the Commission may block or modify any decision the Service prepares in the area under the institution’s responsibility. Since the Treaties do not confer powers on the eeas, but merely enable it to perform a function of assistance, the Service cannot adopt acts producing legal effects with respect to operational issues (it can, on the other hand, adopt acts relating to administrative affairs).119 The eeas is involved in the conduct of operational activities only in terms of preparation of non-binding policy documents as well as draft legal acts, which other organs adopt. When the Service drafts acts on behalf of the Commission, it must present its proposals to the College of the Commissioners for adoption (via the hr or other Commissioners). If the eeas’s proposals do not respond to the priorities and indications set by the College of the Commissioners, the latter may decide to modify them, or to ignore them in toto. This form of control is reinforced 116 See further Chapter 6.I.2.1. 117 In addition, Article 5(3) of Decision 2010/427 explicitly empowers the Commission to ­issue instructions to eu Delegations in the areas where the former exercises the powers conferred on it by the Treaties; see further Chapter 6.II.2.3. 118 More precisely, Commissioners other than the hr/vp may send instructions to the ­Service, in the areas under their responsibility. See further Chapter 6.I.2.1. 119 See Chapter 3.I, 3.II.2 and 4.I.2.

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by the role of supervision of other Commission departments. Pursuant to Article 3(2) of Decision 2010/427, in fact, the eeas must consult the Commission departments ‘on all matters relating to the external action of the Union’.120 Commission services consequently receive information about any activity of the eeas in the institution’s sphere of activity. They may also express criticism about the eeas’s actions and eventually slow down the decision-making process, by opposing the presentation of the Service’s initiatives to the College of the Commissioners during inter-service consultations.121 The legislature further enlarged the degree of the Commission’s control over the Service when the latter operates within its main area of activity in the non-­c fsp sector: development cooperation. Article 9 of Decision 2010/427 entrusted the eeas with a crucial role in the administrative management of the main ­development cooperation instruments and programmes of the Union.122 As discussed below, this provision raises legal and political issues, since it may affect, de jure or de facto, the balance of power of the external action, by giving the eeas influence over the management of a policy which should be under the responsibility of the Commission.123 The eeas’s margin of manoeuvre, in any event, is not unlimited. The eeas must prepare most proposals jointly with Commission departments (i.e. dg Devco). In other words, there is a process of administrative ‘co-decision’ that leads to the preparation of Commission acts. If the eeas were to draft proposals dg Devco does not agree with, the latter may block the decisionmaking process. Even when this department approves the eeas’s drafts, there may be another hurdle to overcome. Article 9 of Decision 2010/427 stipulates that the main development cooperation instruments are prepared under the ­responsibility of the Commissioner responsible for Development Policy, and the one responsible for the Neighbourhood Policy. Any proposal in these fields must be submitted jointly by one of these Commissioners and the High Representative for adoption by the Commission. If the Commissioners were dissatisfied with the eeas’s work, they would be able to block the decision-making process before it reached the College of the Commissioners.

120 Article 3 of Decision 2010/427 (n 132 p 94). 121 As Chapter 5.II.2 will make clear, when a Commission service opposes the proposal of another service during a consultation, the College of the Commissioners may approve the proposal only through a relatively slow oral procedure, whereas in normal conditions the Commission approves draft acts via a swift written procedure. 122 Article 9(4) first indent and Article 9(5) of Decision 2010/427 (n 132 p 94). 123 See Chapter 6.I.2.2 and 6.I.2.3.

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In summary, the drafts prepared by the eeas in respect of the main development cooperation instruments should be approved thrice: (i) by a Commission department, (ii) by a Commissioner, and (iii) by the College of the Commissioners. This arguably constitutes a form of close control over the eeas, which partially compensates the Commission for the attribution of administrative responsibilities in the field of development cooperation to a service separate from its own. These considerations suggest that, whenever the eeas operates in the ­Commission’s sphere of activity, it is subject to a rather strict hierarchical control. Such a consideration, at any rate, is tempered by three factors. First, the Commission’s and the High Representative’s authority over the Service interfere with each other. If the eeas produced drafts that respond to the Commission instructions, but that the hr opposes, the latter would be able to block the decision-making process by refusing to submit them to the College of the Commissioners (unless the eeas is operating under the authority of a C ­ ommissioner other than the hr/vp). This means that the Commission should normally take the hr’s views into consideration when it sends instructions to the eeas. Secondly, the ‘functional’ characterisation of the relationship between the Commission and the eeas does not allow the institution to credibly threaten the adoption of sanctions. The services that are organisationally tied to the Commission are potentially subject to severe punishment: the Commission may cut their funding, transfer their staff or even eliminate underperforming departments, by merging them with others. The Commission can hardly adopt these sanctions against the eeas. The institution may participate in the negotiation for a revision of the eeas’s mandate,124 but cannot expect to use such negotiation to punish the Service – unless the Council (and perhaps the ­Parliament) agrees to that. The multiplicity of the eeas’s ‘masters’ thus plays in the Service’s favour. Moreover, given the eeas’s administrative autonomy, the Commission ­cannot take decisions regarding the Service’s staff. To be sure, the representatives of the institution participate in the eeas’s Consultative Committee of ­Appointment and may consequently contribute to promote (or not) the ­Service’s personnel. However, this influence is likely not to be decisive, since the Committee adopts nonbinding instruments, and is composed of representatives from several entities (including the eeas itself). One may doubt 124 Pursuant to Article 27(3) teu, the High Representative proposes a decision establishing the Service, which is then approved by the Council with the Commission’s ‘consent’. A similar procedure presumably applies to the revision of the Decision.

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­ hether this organ might formulate opinions that reflect precisely the position w of the Commission, especially a position that is hostile to the Service. Similar considerations are also applicable to the use of financial sanctions. The Commission has the power to propose the draft budget of the Union to the Parliament and the Council.125 In case of serious disagreements with the ­Service, the institution may propose that the administrative budget of the eeas be reduced. What is more, the Commission may propose that the funds for the programmes managed by the Service (which are part of the operational lines of the eu budget) be cut. Nevertheless, the threat of these sanctions is not as formidable as it may appear at first sight: the Council and the Parliament may modify the figures proposed by the Commission before adopting the budget. Thirdly, and finally, the Commission’s control, being ‘functional’, is limited to the areas under the responsibility of the institution – and does not extend to the eeas’s activities in the Common Foreign and Security Policy. One may perhaps argue that the Commission does have some means to influence the cfsp, notably through the power of financial implementation. As is well known, the Commission may implement the Union budget and may authorise any expenditure made on behalf of the Union in non-cfsp and cfsp areas (with the ­exception of cfsp expenditure having military characterisation). Whenever the eeas conducts a cfsp action requiring financial support (such as implementing a civilian crisis management mission) it needs a Commission decision that authorises the disbursement of financial resources.126 It has been argued that this ‘gives the Commission control over what the eeas can do in the operational sphere’.127 Although such a scenario appears plausible in principle, it may not always be realistic in practice. As noted by Monar, in the past, the Commission was willing to give in to the demands of the cfsp ­executive rather than risking blocking a politically important decision.128 One may hypothesise  that similar considerations may be applicable in the new ­institutional context too. In theory, the Commission may use its financial influence on the cfsp in a more subtle way, by exerting influence on the eeas during the a­ dministrative 125 See Article 314(1) and (2) tfeu. 126 Cf. Charles Grant, The European External Action Service (Centre for European Reform 2013): ‘The Commission controls the purse strings of the major programmes that the eeas operates, sometimes using this control to dominate the eeas, and is extremely inflexible on how the money is spent’. 127 Blockmans and others (n 3 p 1), at 48. 128 Jörg Monar, ‘The Finances of the Union’s Intergovernmental Pillars: Tortuous Experiments with the Community Budget’ (1997) 35 Journal of Common Market Studies 57.

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preparation of actions. Decision 2010/427 confers the responsibility to implement the budget lines that are closest to the eeas’s interests – cfsp and ­security management at large – to a special ‘Commission department’,129 later denominated ‘Service for Foreign Policy Instruments’ (hereinafter: fpi). The fpi is a relatively small structure (composed of about 160 officials),130 placed under the authority of the hr/vp, which is part of the Commission administration, and is fully subject to Commission rules and procedures. One may note that the creation of the fpi was a political choice, not a ­legal one.131 It is true that the power to implement financial credits lies with the Commission (ex Article 317 tfeu) and that, in principle, this power is exercised by the departments of this institution, such as the fpi. However, primary law does not prevent the Commission from delegating the power of financial implementation to eeas officials. Article 5(4) Decision 2010/427 indeed stipulates that a member of the eeas – the Head of Delegation – i­ mplements operational credits in relation to the Union’s projects in the country of a­ ccreditation.132 It would seem logical that the Commission should be allowed  to delegate its power of financial implementation to other eeas officials as well.133 This would simplify the implementation of the cfsp, since the same departments would manage both the policy and the financial aspects of this policy. The political choice to create a Commission department – the fpi – that is responsible for implementing the cfsp suggests that the Commission wishes to retain its financial leverage in the cfsp, probably in order to acquire some influence on the planning of ‘political’ initiatives. A fpi official noted, in fact, 129 Article 9(6) of Decision 2010/427 (n 132 p 94). 130 European Commission, ‘hr Key Figures, 2015’, available at accessed 18 November 2015. 131 See contra, Niklas Helwig, Paul Ivan and Hrant Kostanyan, The New eu Foreign Policy ­Architecture: Reviewing the First Two Years of the eeas (ceps 2013), at 49: ‘While there are voices calling for the integration of the fpi within the eeas, this would be complicated from a legal point of view’. Even hr Catherine Ashton seems to have taken for granted the impossibility to absorb the fpi in the eeas structure, cf. eeas Review (n 13 p 3), at 9: ‘it is not possible to integrate the activities of the fpi fully into the eeas because of the Treaty responsibilities for the execution of the budget’. 132 See Chapter 6.II.2.3. 133 Such a delegation is not possible under the current legal framework: an amendment of the Financial Regulation (n 58 p 115) would be required, since this instrument generally ­requires that institutions delegate the implementation of their budget only within their ranks. However, one may note that a similar amendment was introduced regarding the Head of Delegation (see Chapter 6.II.2.3): it would seem possible to introduce a broader derogation covering the eeas at large.

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that there was initially ‘a tendency for the fpi to flex muscles: people tend[ed] to conflict with the eeas over how money should be managed’.134 The relationship between the fpi and the eeas may thus indicate that a Commission department has some influence on the preparation of cfsp actions. However, the fpi’s tendency to conflict with the eeas may be read in another way. The former is placed in an uncomfortable position: it is a small Commission department ‘co-located’ with the much bigger eeas.135 It is possible that fpi officials may ‘flex muscles’, not for political reasons, but simply to find a place in the sun, and not in the shade of their colleagues in the eeas. One may h ­ ypothesise that, by working together on a daily basis, the eeas and the fpi officials will overcome these conflicts and develop a special partnership: the smaller Commission service may perhaps get closer to the eeas than to the Commission itself. 1.3

Quasi-hierarchical Relationship between the Council and the eeas While the Commission may use its influence over the eeas to promote a ‘­supranational’ approach in eu foreign policy, the Council may do the reverse, driving the Service to acknowledge the concerns of national governments. The relationship between the eeas and the Council would seem to differ from those already discussed. Whereas the hr and the Commission have hierarchical authority over the Service, the Council is not in a position of superiority, at least from a formal perspective. Nonetheless, the Council may exert a very strong influence over the Service, which matches, and perhaps exceeds, that of the Commission. Decision 2010/427 does not provide for many details regarding the relationship between the Service and the Council. In principle, the eeas is not part of the Council’s administration, since it is ‘separate from the General Secretariat of the Council’ (Article 1(2) of Decision 2010/427). In practice, the situation is slightly more complicated. Article 18(2) teu affirms that the High Representative carries out the cfsp ‘as mandated by the Council’. This suggests that the Council and its preparatory organs may send instructions to the High Representative and her Service with respect to cfsp issues.136 This is particularly true in the csdp area, since a Council body (the Political and Security Committee) exercises the strategic direction of the crisis management operations.137 134 135 136 137

Foreign Policy Instruments service official (interview 9, June 2012). Article 9(6) of Decision 2010/427 (n 132 p 94). Thym (n 118 p 88), at 470. Id., at 471; see also Article 38 teu.

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More generally, one may argue that the hr and the eeas cannot ignore the signals coming from the Council and its preparatory bodies – also in ­non-cfsp areas. The Council performs legislative functions throughout the spectrum of eu foreign affairs. Hence, any proposal the eeas prepares on behalf of the High Representative (in the cfsp area) or the Commission (in the other fields) must later be adopted by the Council, which may introduce amendments or block the decision-making process. The eeas can put an issue on the agenda, but there is no guarantee that the Council will later decide in the sense d­ esired by the Service. Similar considerations are applicable to the ­issue of policy implementation. The eeas can prepare the implementing decisions that the High Representative (in the cfsp area) or the Commission (in the other fields) may later adopt. The adoption of such decisions is generally subject to the supervision of the Member States’ representatives. This is evident with respect to the cfsp, where the High Representative and the eeas implement the policy on the mandate of the Council, and under the supervision of the Political and Security Committee. The Council may also control the implementation of non-cfsp policies, through the means of comitology.138 As is well known, comitology consists of a mechanism for control139 by representatives of the Member States on the Commission’s exercise of implementing powers.140 This procedure regards the eeas in so far as the latter participates in the implementation of policies falling within the sphere of activity of the Commission.141 ­Comitology allows the Member States to know about the ­implementing ­decisions before they are adopted, to express their opinions about them and, in some cases, to block their implementation.142

138 Comitology is, formally speaking, a procedure that enables the Member States to control the implementation of policies. Since the committees that perform this task are collective organs composed of representatives of the Member States, like the bodies that assist the Council, it is logical to address the issue of comitology in the section relating to this institution. 139 The existence of a function of ‘control’ does not exclude the possibility that Committees perform other functions too, including ‘technical assistance’, see Roberto Baratta, ‘­Introduzione alle nuove regole per l’adozione deglì atti esecutivi dell’Unione’ (2011) Il diritto dell’Unione europea 565, at 568. 140 See Article 291(3) tfeu and Parliament and Council Regulation 182/2011/eu, oj 2011 L 55/13. Cf. Einfuhr- und Vorratsstelle für Getreide und Futtermittel v Köster and Berodt & Co., Case 25–70, eu:c:1970:115, para 9. 141 The Service is indeed invited by the Commission to participate in the Committees dealing with actions prepared also by the eeas, such as in the field of development cooperation. 142 See Regulation 182/2011/eu (n 140 p 170), Articles 4, 5 and 6.

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It emerges from these considerations that, whenever the eeas prepares an act, it must take the position of Council members into account. This suggests that the Council, and, to a certain extent, each Member State, may come to exert some degree of control over the formation and the substance of the eeas’s proposals.143 Importantly, the eeas’s de facto subordination to the Council is not limited to a specific sector: the Service must take the Council’s view into account throughout the spectrum of its activities (cfsp and non-cfsp) – though it must do so especially in the cfsp area. The Service should indeed be aware of the foreign policy preferences of each Council member, since the institution generally votes by unanimity with respect to the cfsp. The Council’s control over the eeas is further reinforced by the ability to sanction the Service. Probably, the control over staff, as in the case of the Commission, is not decisive, since the different authorities represented in the eeas’s Consultative Committee for Appointment – including the Council – are likely to interfere with each other’s agendas. The control over financial matters is stronger, since the Council has the power to adopt the budget, but is not absolute, since the Council shares this power with the Parliament. Presumably, the most significant means through which the Council may sanction the Service is by reducing its responsibilities. Of course, the Council cannot autonomously modify Decision 2010/427, since any amendment must be approved by the Commission.144 The Council may nonetheless restrain the eeas’s field of action in a crucial area – the chairing of Council preparatory bodies145 – since that is not regulated in detail by Decision 2010/427. This Decision contains only a tautological provision in this respect: pursuant to Article 4(4), the High Representative may designate the chairpersons of Council preparatory bodies that are chaired by ‘a representative of the High Representative’, i.e. an eeas official.146 Intergovernmental institutions had 143 Cf. Monaco, Les principes (n 2 p 1), at 165. Chapter 6.I.1.1 shows that, in some cases, the eeas may use specific procedures to widen its margin of autonomy in the proposal of cfsp acts. 144 Cf. Article 13(3) of Decision 2010/427 (n 132 p 94). 145 As is well known, the preparatory bodies of the Council include the Committee of ­Permanent Representatives (Coreper), which is composed of the diplomatic representatives of the Member States and prepares the work of the Council (Articles 16(7) teu and 240 tfeu), and other Committees and Working parties, composed of representatives of the Member States, which prepare the work of Coreper; currently, there are about 140  such Committees and Working Groups, see Council doc. 5058/15, 20 January 2015. See further Chapter 6.I.1.2. 146 Council Decision 2009/908/eu, oj 2009 L 322/28, annex ii: ‘The High Representative shall ensure that the person he or she intends to appoint as chairperson will enjoy the

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defined the arrangements on the Council working groups’ presidency already in 2009. European Council Decision 2009/881, of 1 December 2009, stipulates that a ‘representative of the High Representative’ should chair the Political and Security Committee, and that the Council may define the chair of the other preparatory bodies in the field of foreign affairs.147 Accordingly, the Council adopted, on the same day, Decision 2009/908, that identifies the bodies that should be chaired by the eeas and those that are still chaired by the Rotating Presidency.148 In essence, the eeas chairs about half of the preparatory bodies in the field of external relations.149 It is worth noting that both Decisions were adopted on the basis of Article 236(b) tfeu,150 which requires vote by qualified majority. One may assume that they may be amended via the same procedure. This means that the Council may decide, on its own motion and without the collaboration of any other authority, that the eeas may chair a lower (or higher) number of preparatory bodies in the future – or none at all. This constitutes a credible threat, which may contribute to discourage the eeas from ignoring the Council’s indications. For instance, if a Council preparatory body tasked the Service with the preparation of a document, such as a report, the Service would have an incentive, not only to conform to the request, but also to bear in mind the States’ priorities while doing so. 2 Political Control over the eeas The operational autonomy of the eeas means that the Service should be ­capable of conducting its operations free from external control, which has a ­hierarchical dimension (discussed above) and a political one.151 The latter kind of control is less stringent than the former, since it does not enable the

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confidence of Member States. If that person is not yet a member of the eeas, he or she shall become one in accordance with the eeas recruitment procedures, at least for the time of the appointment’. European Council Decision 2009/881/eu, oj 2009 L 315/50. Council Decision 2009/908/eu (n 146 p 171); see also Council doc. 5058/15, list of Council ­Preparatory bodies. See further Chapter 6.I.1.2. Article 236(b) tfeu enables the European Council to adopt a decision on the Council presidency, but the European Council’s decision of 1 December 2009 eventually enabled the Council to adopt an implementing decision (Art. 4); the ensuing Decision of the Council (n 146 p 171) also mentions Article 236(b) tfeu in its preamble. As noted above, one may indeed investigate political control from a legal perspective, by analysing the instruments that may be used to sanction the conduct of an authority, in order to influence its behaviour, see further Chapter 4.I.5.2.

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c­ ontroller to send instructions, which may direct the conduct of the controlled entity with precision. Political control is nonetheless crucial, since it contributes to define the position of the eeas in the institutional architecture of the Union and, consequently, its potential as a coordinator of eu foreign affairs. The analysis of political control begins by assessing the eeas’s accountability in the ‘intergovernmental’ sphere, with an assessment of the influence of the European Council and, subsequently, with a study of the control exercised by each Member State. Then, the attention turns to the ‘supranational’ dimension, focussing on the accountability of the eeas to the European Parliament. 2.1 Limited Influence of the European Council Besides the Council, there is another intergovernmental institution that may exert control over the eeas: the European Council. This institution does not have a hierarchical relationship with the eeas, but may exercise some political influence on the Service. The European Council may, first of all, define the strategic orientations of the external action, which the eeas should take into account in the conduct of its activities. This orientation may potentially come through decisions on the strategic interests and objectives of the Union (Article 22 teu) or, more ­probably, through soft law instruments, such as the European Security Strategy. This form of control, in any event, is not specifically addressed at the eeas, since the orientations set by the European Council direct the action of all eu bodies (including the Commission). Secondly, and most importantly, the European Council may adopt sanctions against the eeas’s staff and, more precisely, against its top official: the High Representative. Pursuant to Article 18(1) teu, the European Council appoints the hr by qualified majority and can end his/her term of office through the same procedure. This suggests that the hr’s office should be entrusted to a person who enjoys the confidence of the Member States; once appointed, the hr should not to displease his/her appointing institution. In principle, similar considerations may extend to the eeas, which should protect the post of its master. However, one should not overestimate the High Representative’s (and eeas’s) degree of accountability to the European Council. The appointments of Catherine Ashton in 2009, and of Federica Mogherini in 2014, indicate that the High Representative is not necessarily chosen because of the confidence of the European Council, but to reach a balance between competing interests. The appointment of the High Representative takes place at the same time as other top appointments (President of the Commission and President of the European Council), after the election of the European Parliament. In the

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­ erformance of these appointments, the members of the European Council p seek to reach a balance between different factors, notably political affiliation, sex, and nationality.152 It would seem, in fact, that there is an unwritten but well-established political rule, whereby no country, region, party, or sex should be given too many posts in the eu.153 The European Council’s ability to discretionally select a High Representative is likely to be further restrained by domestic political concerns. For instance, the British government was very supportive of Catherine Ashton, b­ ecause it needed the appointment of one of its nationals to save face with the domestic press, after its other candidates for eu posts had been turned down by its partners.154 Similarly, it would seem that the Italian government energetically backed Federica Mogherini because the Italian prime minister sought an international exploit (or because he intended to prevent the appointment of one of his adversaries as President of the European Council).155 Another element that may indirectly restrain the European Council’s discretion is the Parliament’s interpretation of Article 17(7) teu. The latter institution argued in 2014 that the candidate of the Party that obtains the highest number of votes in European elections should be nominated as President of the Commission (the so-called Spitzenkandidat doctrine).156 Thus, if the Popular Party wins the election, and its candidate is a man, it becomes more complicated to appoint other men, or other conservatives, to top positions (such as that of the hr). The Parliament eventually managed to impose its view in 2014, by forcing the European Council to accept Jean-Claude Juncker as President of 152 In respect of the appointment of Catherine Ashton see Jolyon Howorth, ‘The “New Faces” of Lisbon: Assessing the Performance of Catherine Ashton and Herman van Rompuy on the Global Stage’ (2011) 16 European Foreign Affairs 303, at 306. On the appointment of Federica Mogherini see Valentina Pop, ‘Italy’s Mogherini Still an Option for eu Foreign Policy Job’ EUObserver (27 August 2014); Charlemagne, ‘A Job for the Girl?’ The Economist (17 July 2014). 153 Tony Barber, ‘The Appointments of Herman van Rompuy and Catherine Ashton’ (2010) 48 Journal of Common Market Studies 55, at 61–63; see further Luciano Bardi and Eugenio Pizzimenti, ‘Old Logics for New Games: The Appointment of the eu’s High Representative for Foreign Affairs and Security Policy’ (2013) 5 Contemporary Italian Politics 55. 154 Charlemagne, ‘Why Europe Ended up with High Rep Ashton’ The Economist (26 ­November 2009). 155 See Federiga Bindi, ‘The Real Meaning of Mogherini’ Carnegie Endowment for International Peace (2 September 2014) accessed 3 April 2015. 156 See further Nereo Peñalver García and Julian Priestley, The Making of a European President (Palgrave Macmillan 2015), at 38 ff.; Barbara Guastaferro, ‘La prima volta del ­Presidente della Commissione “eletto” dal Parlamento europeo. Riflessioni sui limiti del mimetismo istituzionale’ (2014) 9 Studi sull’integrazione europea 527.

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the C ­ ommission. Should the Parliament’s interpretation of Article 17(7) teu prevail in the future,157 it is to be expected that the result of the next European elections will indirectly influence the appointment of future High Representatives too. Several commentators have argued that the ‘horse-trading’ approach that characterises the appointment of the High Representative leads to the ­appointment of candidates with a sub-par expertise158 (though other observers have been less pessimistic).159 Be that as it may, the political compromises that inspire the appointment of the High Representative probably have another consequence: once a High Representative is nominated, the European Council is unlikely to actually dismiss him/her. Forcing a High Representative to resign would mean re-opening the Pandora’s box of top-level appointments, with ensuing in-fight between national governments and uncertain results in terms of a new appointment.160 Therefore, the European Council’s possible threats against the High Representative – and, thus, the control over his/her Service – do not seem very credible in practice.161 2.2

National Officials Seconded to the eeas: Trojan Horses of the Member States? Each Member State of an international organisation has an interest in influencing the activity of its organs, to orient them in a direction compatible with national policies. This is particularly true in the case of the eeas, since certain eu Members have an active foreign policy,162 which coexists with that of 157 See further Editorial Comment, ‘After the European Elections: Parliamentary Games and Gambles’ (2014) 51 Common Market Law Review 1047, at 1051–1052. 158 See e.g. Howorth (n 152 p 174), at 308; Nick Squires, ‘Italy Pushes Inexperienced Minister as ­Successor to Catherine Ashton’ The Telegraph (16 July 2014). 159 See e.g. Steven Blockmans and Francesco S Montesano, Mogherini’s First 100 Days: Not the Quiet Diplomat (ceps 2015) accessed 19 December 2015. 160 Presumably, a drastic measure such as the dismissal of the hr is likely to be used only in extreme cases; for instance, to sanction episodes of corruption. 161 By way of analogy, see Constantinesco, ‘La responsabilité de la Commission Européenne’ (n 51 p 150), at 120: ‘certes, l’on sait que, dans les régimes parlementaires, la menace de la m ­ otion de censure est un moyen pour la majorité de l’Assemblée de contraindre le ­gouvernement à l’entendre sinon à l’écouter : encore faut-il, pour que la menace soit ­efficace, que l’emploi de la motion de censure soit crédible…’. 162 For instance, Furness mentions the uk, France, Germany, as well as Italy, Spain and the Netherlands, see Furness (n 68 p 153). One cannot exclude, at any rate, that smaller States may be interested in influencing the eeas’s action, at least in the thematic or geographic areas that are closest to their interests.

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the Union. One may hypothesise, therefore, that one of those States may seek to take control of the Service, and use it to foster the alignment of the eu’s ­policy with the national one. It may do so, in particular, by placing its citizens in the eeas’s structure: States generally regard the presence of their nationals in ­international administrations as serving their national interests.163 From a strictly legal perspective, the Member States should refrain from exerting influence over the eeas and its personnel. The Service is an organ of the Union and, as such, it is autonomous from the eu’s Members. It is indeed an established principle of international law that the staff of international organisations should act independently from the instructions of the organisations’ Members.164 This principle finds an expression in the legal order of the Union, at Article 11 of the Staff Regulations (which is applicable to both permanent and seconded staff).165 Pursuant to this provision, an eu official must not take instructions from ‘any government authority, organisation or person’ outside his/her institution and carry out the duties assigned to him/her ‘impartially’, and in keeping with his/her duty of loyalty ‘to the Union’. Decision 2010/427 echoes Article 11 of the Staff Regulations, by stipulating that the staff of the eeas ‘shall neither seek nor take instructions from any government, authority, organisation or person outside the eeas or from any body or person other than the High Representative’.166 However, the experience suggests that Article 11 of the Staff Regulation has not always been applied in a rigid manner. From the very start of the integration process, it became evident that the autonomy of eu organs – and ­particularly of the Commission – had to be balanced against the interests of the Member States.167 Some national leaders, such as De Gaulle, opposed the original idea of an independent Commission, preferring a bureaucracy consisting of officials seconded from national administrations.168 They partly reached 163 Theodor Meron, The United Nations Secretariat: The Rules and the Practice (Lexington Books 1977), at 46. 164 See inter alia Benedetto Conforti, The Law and Practice of the United Nations (Martinus Nijhoff 2005), at 102; Morelli (n 56 p 71), at 19. 165 See Article 11 of the ceos (n 26 p 109). 166 Decision 2010/427 (n 132 p 94), Article 6(4). See also Article 5(1)(a) and (b) of High Representative Decision of 23 March 2011 establishing the rules applicable to National Experts ­Seconded to the European External Action Service, oj 2012 C 12/8. 167 C Lequesne, ‘The European Commission: A Balancing Act between Autonomy and ­Dependence’ in K Neunreither and A Wiener (eds), European Integration after Amsterdam. Institutional Dynamics and Prospects for Democracy (Oxford University Press 2000). 168 David L Coombes, Politics and Bureaucracy in the European Community: A Portrait of the Commission of the e.e.c. (Allen & Unwin 1970), at 121.

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their objective, at least for some decades: States have often ‘parachuted’ their own staff within the Commission, to the point that in the late 90’s more than a third of top positions was filled with outsiders coming from national administrations.169 The number of top officials that each State could ‘parachute’ was not random: national governments sought to reach a ‘geographical balance’ in the Commission structure,170 making sure that the number of staff employed by the institution reflected approximately the population size of each State.171 Geographical balance had a peculiar consequence: certain director-general posts (e.g. development or trade) became ‘hereditary’, since they were de facto reserved for particular nationalities.172 Such a management of top bureaucratic posts was likely to result in ­increased control over the Commission by the Member States: probably, when an official owes his/her position to his/her nationality, more than any other criterion, he/she is likely to have an enhanced relationship with his/her State.173 As a reaction to the loss of autonomy on the part of the Commission, the institution reformed its administration in the early 2000’s, restraining the influence of nationality in decisions relating to staff. The institution now acknowledges that the nationality of the outgoing post-holder is not a factor in the appointment of the new occupant of the post. Consequently, the ‘parachuting’ of officials from national administrations into Commission services seems to have been strongly reduced.174 The setup of the eeas may seem a reversal of this process of autonomisation, and a belated success of the intergovernmentalists à la De Gaulle. The Service contains two categories of national officials. First, national diplomats. According to Article 27(3) teu, the eeas must comprise, besides officials from relevant departments of the General Secretariat of the Council and of the Commission, ‘staff seconded from national diplomatic services of the Member States’. Decision 2010/427 implemented this rule, at Article 6(9), by stipulating 169 Hooghe and Kassim (n 74 p 154), at 194. 170 The (political) principle of geographical balance is also applied in other international organisations, such as the un, see Meron (n 163 p 176), at 12–46. 171 Semin Suvarierol and Caspar van den Berg, ‘Bridge Builder or Bridgeheads in Brussels? The World of Seconded National Experts’ in Geuijen (ed), The New Eurocrats: National Civil Servants in eu Policy-Making (Amsterdam University Press 2009). 172 Hooghe and Kassim (n 74 p 154), at 175; see also Michelle Cini, The European Commission: Leadership, Organisation, and Culture in the eu Administration (Manchester University Press 1996) at 126. More generally, some directorates-general came, at least for a period, under the influence of certain States, see Nedergaard (n 147 p 98), at 112–113. 173 Cini (n 172 supra), at 126; Nedergaard (n 147 p 98), at 18. 174 Hooghe and Kassim (n 74 p 154), at 186–189.

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that: (i) at least 60% of the eeas staff at administrator level175 is composed of permanent officials (originally coming from either the Commission or the Council Secretariat); (ii) ‘one third’ of the eeas staff at the level of administrators must come from the diplomatic services of the Member States. National diplomats are employed as the eeas’s ‘temporary agents’, meaning inter alia that they are paid by the Service (and not by their national administration), as long as they remain at the disposal of the Union. This period normally should not exceed eight years, after which the diplomats return to their national administration.176 The second category of national officials in the eeas is constituted by the ­so-called ‘seconded national experts’ (snes). The Council considered the presence of snes as indispensable, since the eeas would have needed officials from national ministries of defence and home affairs to conduct the Common Security and Defence Policy.177 More generally, Council and Commission departments to be transferred to the eeas in 2011 employed several snes. Nevertheless, the European Parliament was sceptical about the possibility to ­second national experts to the Service, fearing that a massive presence of snes in the eeas, besides national diplomats, would have enhanced the intergovernmentalisation of the Service. The institutions reached a compromise, later enshrined in Article 6(3) of the Decision 2010/427, whereby ‘if necessary’ the eeas may, ‘in specific cases’, have recourse to a ‘limited number’ of snes. This provision is apparently formulated in restrictive terms, but remains quite vague: there is no clear limit to the quantity of snes that may work for the eeas.178 The High Representative implemented Article 6(3) by adopting a ­Decision in March 2011 (hereinafter: hr Decision on snes).179 This act specifies that the snes seconded to the eeas are experts drawn from international organisations, 175 On the responsibilities of Administrators, see Article 5(2) of the Staff Regulations (n 26 p 109). 176 Article 6(11) of Decision 2010/427 (n 132 p 94). See also Articles 2(e) and 50b(1) of the ceos (n 26 p 109). 177 Cf. Christoffersen (n 9 p 2), at 111. 178 The aforementioned Article 6(9) of Decision 2010/427, in fact, stipulates that national diplomats should constitute ‘one third’, and permanent officials ‘60%’, of ‘all eeas staff at ad [Administrator] level’. snes, however, are not ‘administrators’ within the meaning of the Staff Regulations (n 26 p 109); hence, they are not concerned by Article 6(9). In fact, the Commission initially wanted the snes to be counted among the ‘one third’ of eeas staff coming from the Member States, but the Council successfully opposed this view , see Christoffersen (n 9 p 2), at 111. 179 High Representative Decision of 23 March 2011 establishing the rules applicable to National Experts Seconded to the European External Action Service, oj 2012 C 12/8.

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or from the public administrations of the Member States. The secondment of sne’s normally lasts for a period between six months and four years.180 Throughout this period, the snes remain in the service of their ­original employer and continue to be paid by it.181 Nonetheless, they receive a generous allowance on the part of the eeas.182 Decision 2010/427 does not simply stipulate that the eeas must employ ­national officials, but also gives the States a means to verify the respect for this requirement. Article 6, indeed, requests the High Representative to present, each year, a report to the Council on the occupation of posts in the eeas.183 In addition, one may recall that the Member States are involved in the recruitment procedure for vacant top posts in the eeas, through Consultative Committee for Appointment.184 These mechanisms seem indeed effective in guaranteeing the application of the rules on staff. The eeas substantially met the ‘one third’ target for national diplomats already in 2013. About 33% of the eeas’s administrators (some 300 persons) come from national diplomatic services.185 National diplomats are especially numerous in eu Delegations, where they constitute 45% of the a­ dministrators. The eeas makes use of numerous snes too. Although ­Decision 2010/427 authorises the Service to have recourse to a ‘limited number’ of e­ xperts, there are now about 400 snes in the eeas.186 The ‘limited number’ of snes in the Service thus exceeds the (already significant) number of national diplomats.187 The presence of national officials in the eeas is relevant not only from a quantitative perspective, but also from a qualitative one. Member states had high expectations for their role in providing additional staff, especially at ­senior level.188 The appointment of the eeas’s officials met these expectations, to the extent that national diplomats now occupy several positions at the top 180 Id., Article 2(1); the term may be extended to six years in exceptional cases. 181 Id., Article 1(2). 182 More precisely, the sum amounts to 127,65 Euros per day; see hr Decision on snes (n 179 p 178), Article 16(1). 183 Decision 2010/427 (n 132 p 94), Article 6(9). 184 eeas, 2013 Annual Activity Report (n 55 p 115), at 11. 185 eeas, 2014 Annual Activity Report (2015) accessed 19 December 2015, at 4, 5; eeas, 2013 ­Annual Activity Report (n 55 p 115), at 8. 186 eeas, 2014 Annual Activity Report (n 185 p 179), at 8; eeas, 2013 Annual Activity Report (n 55 p 115), at 49. 187 Cf. European Court of Auditors (n 136 p 94), para 44. 188 eeas Review (n 13 p 3), at 4.

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of the eeas’s bureaucracy.189 They represent about 40% of the eu Heads of Delegation, and were given important roles in Headquarters too. Catherine Ashton was so eager to grant leading roles to national diplomats that she ­devised an original structure for the eeas, characterised by an exorbitant number of managers,190 to accommodate as many high-ranking diplomats as possible.191 As a result, the eeas has twice the number of senior management staff as its predecessors.192 The massive presence of national diplomats in the eeas, and the Member States’ enthusiasm for the secondment of their officials to the Service, may suggest that national diplomats and snes actually work, in practice, as the agents of their countries. Further evidence in this sense may seem to emerge from the geographical distribution of posts within the Service. Pursuant to Article 6(6), recruitment to the eeas should be based on merit ‘whilst ensuring adequate geographical […] balance’.193 Since this requirement refers generically to ‘recruitment’ it arguably applies to all eeas staff, including national diplomats, snes,194 as well as permanent officials (who are, after all, nationals of eu States). The second period of Article 6(6) seeks to partially clarify the notion of ‘geographical balance’, by stating that the staff of the eeas must comprise a ‘meaningful presence’ of nationals from ‘all the Member States’. In any event, the meaning of ‘geographical balance’ and ‘meaningful presence’ remains uncertain, especially because these concepts are hardly compatible with the idea of recruitment ‘based on merit’, envisaged by the same Article 6(6). The case-law of the Court suggests that the concern for geographical ­balance should be subordinated to the one for merit: only ‘where the qualifications of the various candidates are substantially the same’ may a Union body make nationality ‘the overriding criterion in order to maintain or re-establish 189 See further Tereza Novotná, Who’s in Charge? Member States, eu Institutions and the ­European External Action Service (ispi 2014). 190 This peculiar structure has been promptly labelled as a ‘Mexican army’, with many ­generals but few soldiers, see Ingeborg Gräßle, ‘The Creation of the European External Action Service – A Critical Analysis’ (2011) 194 European Issues ­accessed 19 December 2015. 191 In fact, Catherine Ashton could hardly accommodate national diplomats by removing the officials that previously led the departments in the Commission and the Council, cf. Helwig (n 97 p 82), at 71. 192 European Court of Auditors (n 136 p 94), para 30. 193 This provision refers to gender balance too, an issue which falls beyond the scope of the present analysis. 194 See hr Decision on snes (n 179 p 178), Article 1(5).

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a geographical balance among its staff’.195 The need for an eu administration to remedy a geographical disequilibrium in the posts within its departments when recruiting ‘must give way to […] the consideration of the personal merits of the candidates’.196 However, considerations for geographical factors would seem to have played a primary role in the appointment of eeas staff. The Service already managed to ensure geographical balance, including a meaningful presence of nationals of all Member States, in 2013.197 Curiously, the bargaining among the Member States for the best positions led to results reminiscent of the past. The highest position in the Service, in particular, appears to have become ‘hereditary’: the first Secretary-General of the Service was a French diplomat (Pierre Vimont), and was succeeded by…a French diplomat (Alain Le Roy).198 Hence, one may hypothesise that the appointment of the eeas’s staff, and especially of top officials, was performed in light of the indications of eu Members, which sought to be represented in the Service by their personnel.199 All in all, the massive presence of national officials in the Service, and the careful respect of geographical balance, may suggest that national diplomats and snes function as the ‘Trojan horses’ of their countries, who gather information about the eeas’s activities and ‘manoeuvre’ policy proposals.200 snes are indeed attached to their sending administrations throughout their period of posting to the eeas; therefore, they might ‘identify’ with their sending nations and consequently favour national interests.201 National diplomats are not completely separated from their administrations either, since they are bound 195 Reinarz v Commission, Case 17/68, eu:c:1969:14, para 35. See also Lassalle v Parliament, Case 15/63, eu:c:1964:9, page 38. 196 Marenco v Commission, Cases 81-88/74, eu:c:1975:139, para 34. See also, inter alia, ­Ragusa v Commission, Case 282/81, eu:c:1983:105, para 14; Schloh v Council, Case 85/82, eu:c:1983:179, para 26; Séché v Commission, T-112/96, T-115/96, eu:t:1999:134, para 192. 197 It is true that the newer eu countries are still slightly underrepresented, but this would seem to depend on the fact that they were scarcely represented in the staff transferred from the services of the Commission and the Council Secretariat. The 12 Member States that joined the eu since 2004, which have a share of eu population in the order of 20%, already account for 18% of the official posts in the eeas. See eeas, 2014 Annual Activity Report (n 185 p 179), at 9; eeas, 2013 Annual Activity Report (n 55 p 115), at 9. 198 Simon Taylor, ‘Le Roy to Succeed Vimont at eeas’ European Voice (1 July 2015). 199 Murdoch et al., however, argue that ‘there is little evidence of member-states’ ­ability to impose positive weight on candidate’s nationality in the recruitment process’, see ­Murdoch, Trondal and Gänzle (n 47 p 113), at 16. 200 Cf. Suvarierol and van den Berg (n 171 p 177). 201 Cf. Claudio Franchini, ‘L’organizzazione amministrativa dell’Unione Europea’ in ­Mario P  Chiti (ed), Diritto amministrativo europeo (Giuffrè 2013), at 265; Claudia ­Morviducci,

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to return there after four or eight years: a State may threaten the withdrawal of promotions or the transfer to undesired locations to ensure the loyalty of its diplomats, even when they are in Brussels. At first sight, these considerations may raise the suspicion that there has been a ‘take-over’ of the eeas structures by eu Member States, to the extent that now ‘it is eu Member States that run the service’.202 Is this suspicion justified? 2.3

Doubts as to the Accountability of the eeas’s Staff to the Member States Assuming that the Member States invariably second their officials to the ­Service to use them as ‘Trojan horses’ seems somewhat simplistic. There are indeed several other reasons why eu countries may wish to offer their officials to the Service. In the first place, the Member States may second their staff to contribute to the eeas’s work. snes are routinely sent to Brussels to fill in the gaps in the expertise of eu staff.203 Probably, this is true for the snes and the national diplomats working in the eeas as well. The eu has neither an army nor a police, and its permanent staff lacks this kind of background. Similar considerations apply to diplomats. Among its several functions, the Service must conduct diplomatic relations with the governments of third countries. For this purpose, it requires staff with diplomatic training and expertise. The permanent officials of the Commission and of the Council that were transferred to the Service in 2010 had limited experience in this ambit, since their institutions were not fully involved in diplomacy stricto sensu before Lisbon. The diplomats of the Member States, on the contrary, have specific training and expertise, and may bring added value to the eeas. Not surprisingly, the majority of national diplomats have been posted to Delegations, where diplomatic skills are most necessary.204 The requirement to post national diplomats in the Service, therefore, may be seen, not only as a constraint, but also as a form of contribution that ‘Il Servizio europeo per l’azione esterna: un inizio problematico’ (2013) 8 Studi sull’integrazione europea 19, at 37–38. 202 Novotná (n 189 p 180). 203 For instance, Commission dg Echo regularly receives snes working on civil protection issues, since the eu cannot rely on its own assets to implement this policy. As noted by a national official seconded to dg Echo (interview 16, September 2012), snes constitute ‘a form of contribution’ by the Member States, as well as a means through which ‘bring about the experience needed to do the linkage’ between the national and the European level. Cf. Suvarierol and van den Berg (n 171 p 177). 204 Cf. eeas, 2013 Annual Activity Report (n 55 p 115), at 10.

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the Member States give to boost the eeas’s performance.205 Having created the Service, the Member States logically ‘have a major interest in a strong and efficient eeas’.206 Secondly, the Member States may second their officials to reinforce the ties between national administrations and European bureaucracies. It is customary for national administrations to send their officials to eu institutions, for the purpose of acquiring expertise about eu activities and programmes;207 this would seem to be true in the case of the secondment to the eeas, too.208 The secondment of national officials fosters the creation of communication channels between domestic and European administrations. snes and national diplomats sensitise the Service to the priorities of the Member States, which the eeas should indeed take into account in the preparation of cfsp proposals.209 In other words, ‘diplomats are needed to link with the Member States’.210 Since the Member States obtain benefits from the secondment of national experts to the Union, one may understand why they are generally willing, not only to second their officials, but also to pay for their salaries. If one considers that national diplomats seconded to the eeas offer similar advantages – but are entirely paid by the Union – the State’s enthusiasm for the secondment of their diplomats to the eeas appears logical, especially in a period of economic crisis. Thirdly, the Member States may second their officials to the Service for a less noble, but not entirely disquieting, reason: domestic propaganda. The eeas sparked some interest in national parliaments, and sometimes even in 205 National official seconded to dg Echo (interview 16, September 2012). 206 Non-Paper on the European External Action Service from the Foreign Ministers of Belgium, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Poland and Sweden (2011) accessed 19 December 2015. 207 Suvarierol and van den Berg (n 171 p 177). 208 Cf. Pierre Vimont, eeas Secretary-General, cit. in uk House of Lords, Inquiry on European External Action Service (Questions 158–197) (n 138 p 95), at 28: ‘it was a bit of a surprise when we asked our question to our counterparts in member states, after what is normally a four-year term, ‘Would you like them back or would you prefer them with us?’ to our surprise most of them said they wanted them back, because of the European experience they would have gathered’. See also Christoffersen (n 9 p 2), at 111. 209 In this respect, national officials in the eeas are not different form the national experts seconded to other eu bodies, see Suvarierol and van den Berg (n 171 p 177). 210 This expression was originally used by a high official of the eeas, working in close cooperation with the Council (interview 14, September 2012).

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the national press, which scrutinised the geographical balance in the Service, to assess whether specific nationalities were sufficiently represented. National governments presented the placing of a national officer in the eeas, especially at the top positions, as a political success. Conversely, national critics of the government in charge stigmatised the failure to place nationals in the Service as a sign of the State’s incapability to defend the ‘national interest’.211 To put it like an eeas official: ‘if France had 25 officials and Italy only 12, there would be a symbolic problem’.212 This suggests that the secondment and placement of national officials is not necessarily a means to control the Service: it may be an end in itself. There remains, of course, the possibility that a Member State occasionally abuses its privileged relationship with the officials it seconds to the eeas, but this problem should not be overemphasised. The research conducted by Henökl213 suggests that the large majority of eeas’s staff ‘emphasizes’ the political signals coming from the eeas’s leadership, as well as from the Commission and the Parliament, but only a minority of staff take into consideration the position of the respective national government (19%). Curiously, where the national diplomats are more numerous, i.e. in Delegations, the eeas’s staff seems to be more loyal to the Service. The interviews performed by the author confirm that the Member States usually ‘do not send instructions to the eeas through their officials’.214 Most seconded diplomats ‘are faithful to the eeas’s mandate’.215 It would also seem that low-ranking national officials, and even heads of division, ‘get ­Europeanised’ after a while.216 Of course, if one ‘climbs the hierarchy, the national ­element augments’.217 Officials at the top level have variable degrees of ­allegiance, depending on their personal inclinations: while some are ‘very European’, others are closer to their national administration.218 It is opportune to recall that, at any rate, the influence of eu States on the officials at the top of an eu bureaucracy is not a new phenomenon, and is not limited to the eeas: the appointment of national officials at the Service’s top positions hardly constitutes the first case of ‘parachuting’. 211 Cf. Antonio Carlucci and Gigi Riva, ‘L’Italia? Non conta niente’ L’Espresso (12 March 2010). 212 High eeas official (interview 17, September 2012). 213 Henökl (n 107 p 161), at 395. 214 Commission official, working in close collaboration with the eeas (interview 18, September 2012). 215 Permanent eeas official (interview 6, May 2012). 216 Permanent eeas official (interview 1, April 2012). 217 dg Devco official (interview 12, August 2012). 218 Permanent eeas official (interview 1, April 2012).

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2.4

Political Control of the European Parliament: Democratic Accountability? Aside from the Member States and intergovernmental institutions, there is ­another authority that may exert political control over the eeas: the European Parliament. As is well known, the Parliament may use several instruments to ensure the accountability of the main eu executive – the Commission – such as the motion of censure, and parliamentary questions (Article 230 tfeu). However, the drafters of the Treaties did not contemplate similar measures with respect to the High Representative and his/her Service, probably because these organs operate mostly in the intergovernmental field, and – in the States’ view – they should be held accountable to European governments, and not to European peoples. Nonetheless, the Parliament may have some means at its disposal to influence the activities of the eeas. On the one hand, it may block or modify certain initiatives of the Service. The Parliament acts indeed as a co-legislator in the non-cfsp area. Whenever the eeas prepares a proposal in this field, on behalf of the Commission, the Parliament has the power to approve or amend it. The Parliament thus exerts a form of control that is qualitatively similar to the one of the Council, but is more restrained: unlike the Council, the Parliament has no legislative power in the cfsp area. Furthermore, it has only a subsidiary role in comitology procedures.219 On the other hand, the Parliament may adopt measures to sanction the ­Service and its staff. The Parliament’s capability to control the establishment and revision of the eeas’s basic structures and tasks is, in theory, very limited. Article 27(3) teu stipulates that the ep is merely consulted by the Council before the adoption of the Decision establishing the eeas.220 However, during the period that preceded the adoption of such Decision the Parliament managed to obtain a place at the negotiating table, by relying on its power to approve the budget, the amendments to the Staff Regulation and the Financial Regulation.221 During the negotiation, the Parliament sought to make sure that the eeas was ‘more communitarian than inter-governmental in character’.222 It 219 220 221 222

See Regulation 182/2011 (n 140 p 170), in particular Article 11. Article 27(3) teu. See Chapter 2.Iv.1. European Parliament, The Conference of Presidents on the External Action Service, press release, June 10 2010, Ref: 20100610IPR75814, accessed 18 October 2015.

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t­herefore insisted that the eeas should have been ‘attached to the Commission’ and generally intended to protect the prerogatives of that institution. This was also an attempt to foster the accountability of the eeas towards the ep itself, by preventing it from becoming – as a mep aptly noted – ‘an independent kingdom outside our control’.223 One may argue, at any rate, that the Parliament’s strategy was not very effective: the eeas is not attached to the Commission and, more generally, Decision 2010/427 reflects quite closely the original proposal of the High Representative and the positions previously expressed by the Member States. It would seem that the major success for the Parliament consisted in the subordination of the eeas to the full budgetary scrutiny of the institution. The ep indeed obtained that the draft budget of the Union should be accompanied, every year, by a working document containing: (i) the overall administrative expenditure of the eeas for the preceding year; (ii) the operational expenditure of the external action, broken down by geographic area, thematic areas, Union Delegation and mission; and (iii) the number of eeas posts for each grade in each category.224 All these details should give the Parliament a clear picture of the eeas’s administrative and operational situation. This enables the ep to criticise the Service, as it did in 2014 because of the latter’s ­top-heavy structure,225 and eventually to impose budgetary cuts. Besides the financial lever, the Parliament has limited tools at its disposal to control the eeas. The Parliament convinced the High Representative to adopt a non-binding Declaration on political accountability, as part of the negotiation for the approval of the eeas Decision.226 In principle, this declaration may be politically, if not legally, binding for the High Representative. It has been argued, indeed, that through this instrument ‘the ep has found means to influence the behaviour of the eeas and hr’.227 However, the content of the declaration does not seem to significantly enhance the Parliament’s control over the Service. The Declaration has two main components. First, it commits the High ­Representative and the eeas to provide information to the Parliament, 223 European Parliament debate, 21 October 2009, cre 21/10/2009 – 8. 224 Financial Regulation (n 58 p 115), Article 38(7) and (8). See also ep, Press Release: eeas Needs Stringent Budget Control (2010) ­accessed 18 October 2015. 225 Anthony De Bondt, ‘The eeas and the European Parliament: How Formal and Informal Accountability Mechanisms Are Symbiotic’ (2015) 1 European Policy Review 24, at 29. 226 Declaration by the High Representative on political accountability, oj 2010 C 210/01. 227 Blockmans and others (n 3 p 1), at 20.

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e­ specially in the cfsp area. The Declaration stipulates, in particular, that the eeas will participate in Parliamentary meetings on the cfsp, and its representation will be at high level, including the permanent Chair of the Political and Security Committee, as well senior officials responsible for the policy in question. Moreover, the High Representative committed to facilitate the appearance of Heads of Delegations, Heads of csdp missions, and senior eeas officials in relevant parliamentary committees and subcommittees in order to provide regular briefings. All in all, these commitments appear as an implementation of Article 36 teu, whereby the High Representative must ‘regularly consult the European Parliament on the main aspects and the basic choices of the common foreign and security policy’. Hence, they do not seem to increase dramatically the Parliament’s capability to control the eeas. Secondly, the Declaration addresses staff issues. As a general rule, the Parliament does not control the eeas’s staff policy: the ep is the sole body in the eu’s ‘institutional triangle’ not to be represented in the Consultative Committee on Appointments.228 The Declaration would seem to give the Parliament an ­important role, at least, in the appointment of a special kind of eeas official: the Head of Delegation. According to paragraph 5 ‘the hr should respond positively’ to requests from the European Parliament for newly appointed Heads of Delegations to appear before the ep foreign affairs committee for ‘an exchange of views’. The hr’s commitment, at any rate, is not unlimited. On the one hand, the Declaration stipulates that the exchange of views is set to take place before the Head of Delegation takes up his/her post – but does not specify whether it should take place before or after the Head of Delegation is appointed. This aspect is important, since it would arguably be difficult for the Parliament to turn down an ambassador who has already been appointed. On the other hand, the ­Declaration affirms that the exchanges of views should take place ‘in a format agreed with the hr’, corresponding to the ‘sensitivity’ and ‘confidentiality’ of the ­topics discussed. This second limitation is also relevant, since a confidential meeting – i.e. behind closed doors – would not allow meps to use the e­ xchange of views with the ambassadors as an opportunity to acquire visibility, thus probably decreasing the usefulness of this power in the Parliamentarians’ eyes. This may contribute to explain ‘the low attendance rate of meps at some of these meetings’.229

228 The ep only managed to obtain that the hr, each year, presents a report to the institution on the occupation of posts in the eeas, see Article 6(10) of Decision 2010/427 (n 132 p 94). 229 Helwig, Ivan and Kostanyan (n 131 p 168), at 57.

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The Parliament originally disregarded these limitations, in the period October–December 2010, and tried to hold a public exchange of views before the appointment of eu ambassadors to China, Georgia, Japan, Lebanon, and Pakistan. The High Representative reacted by cancelling the meetings, recalling that ‘these hearings are in no way so-called Congressional-style hearings’: ‘if these hearings eventually take place, they should take place as previously agreed with parliament, in camera’.230 The Parliament eventually backed down, and agreed that all hearings take place behind closed doors.231 3 Judicial Control of the eeas’s Operational Activities The last form of control over the eeas is the judicial one. One might hypothesise that eu institutions and Members may seek to use judicial procedures to reinforce their control over the Service, particularly through the procedures for annulment (Article 263 tfeu) and for failure to act (Article 265 tfeu).232 Obviously, eu institutions and States may potentially use judicial control against the organs assisted by the Service. For instance, if the eeas drafted a Commission decision that implements a legislative act, in violation of the conferral of powers set in a legislative act, a Member State may bring action under Article 263 tfeu.233 This form of judicial control over the eeas, at any rate, is imperfect, since it regards, not directly the eeas, but other organs. Moreover, it is scarcely applicable to the cfsp, given the limited jurisdiction of the cjeu in this area.234 Hence, the acts that the Service prepares on behalf of the High Representative generally escape judicial control. May the eeas stand before the Court, in its own name, in proceedings concerning operational issues? The analysis of the eeas’s administrative autonomy, conducted above, suggests that the Service can, in abstracto, take in part in 230 hr’s spokesman Darren Ennis, quoted in Andrew Rettman, ‘Ashton Calls off eu ­Ambassador Hearings’ EUObserver (10 April 2010). 231 See further Raube (n 131 p 93), at 76. 232 The other judicial procedures contemplated by eu law are not particularly relevant in the operational domain. The procedure regarding the disputes between the eu and its servants (Article 270 tfeu) regard the relationship between the eeas and its staff (and not with other authorities). The legal proceedings before the Member States’ courts (Article 335 tfeu) and the actions for damages (Article 340 tfeu) are likely to concern administrative issues, rather than issues related to policy management. On the eeas’s locus standi in respect of administrative issues, see Chapter 3.II.3 and 3.II.4. 233 To be sure, this may be done once the decision has been formally adopted by the Commission. 234 However, the Court has jurisdiction to monitor compliance with Article 40 teu and to rule on proceedings for annulment, brought by natural or legal persons, reviewing the legality of restrictive measures (Article 275(2) tfeu).

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judicial procedures, given its legal personality.235 However, it would seem that the Service’s standing should not extend to the operational sector. First, the eeas does not appear to have passive standing with respect to the procedure for annulment. Whereas the eeas has quasi-institutional status in the field of administrative management, and adopts acts of its own, it functions as a proper ‘service’ in the operational areas, and merely supports the High Representative, the Commission and the Council in the preparation of their acts.236 The instrument that these authorities adopt, in their own name, are attributed to them, and not to the services that prepare them. Hence, it is for these authorities, and not for the eeas, to defend them in Court. Furthermore, the instruments that the eeas produces for the purpose of supporting other authorities, such as draft proposals or policy documents, are not definitive acts producing legal effects, and consequently cannot be annulled under Article 263 tfeu. The eeas’s passive standing in the procedure for failure to act may raise ­further issues. Article 265 tfeu stipulates that an action may be brought against any eu institution, body, office, and agency that ‘fail[s] to act’, in infringement of the Treaties. A literal interpretation of this provision suggests that any failure to ‘act’, including the failure to adopt non-binding acts, may fall within the scope of Article 265 tfeu.237 The eeas seems to be required to ‘act’ in the operational field, since it must ‘support’ and ‘assist’ eu institutions and offices; it should also cooperate with other administrations, notably Commission departments (ex Article 3 of Decision 2010/427). If the eeas failed to consult with the services of the Commission, in violation of said Article 3, would the institution be able to bring proceedings against the Service under Article 265 tfeu?238 I contend that this is not the case. Whenever the eeas assists another authority, it works under its authority, as if it were one of its services. As the Commission cannot bring action against one of its dgs, it should not be able to take the eeas to Court.239 After having discussed the eeas’s (lack of) passive standing, it is worth ­wondering whether the Service may also have active standing in operational 235 See Chapter 3.II.1. 236 As noted in Chapter 3.II.3, a body may defend in Court only the acts that may be attributed to it, taking into account the substance of the act, having regard to its content and all the circumstances in which it was adopted, see inter alia Parliament v Council, C-181/91 and C-248/91, eu:c:1993:271, para 14. 237 The issue is discussed further in Chapter 3.II.3. 238 On the consultation with Commission services, see further Chapter 5.II.1 and 5.II.2. 239 In fact, the eeas’s duty to cooperate with other administrative bodies with respect to operational issues seems to be more political than legal, see Chapter 5.I.2.

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matters. If that were the case, the eeas may use judicial procedures to reinforce its autonomy and its power. For instance, if Commission departments prepared a proposal for a development cooperation instrument without the participation of the eeas, in violation of Article 9 of Decision 2010/427,240 and the institution later adopted such a proposal, the Service might potentially bring action against the Commission, alleging an infringement of an essential procedural requirement. However, the eeas would seem not to have standing in such a case. The Service was not conferred powers in the operational sphere, and consequently operates in its capacity as a ‘service’, not as an autonomous body.241 Like the services of the Commission, the eeas should be considered, in this respect, as functionally attached to the institution and, consequently, incapable of standing before the Court.242 The eeas can hardly bypass these obstacles by relying on the Chernobyl case-law. As is well known, in Chernobyl the Court held that observance of the institutional balance means that each of the institutions must exercise its powers with due regard for the powers of the other institutions, and that it should be possible to penalise any breach of that rule.243 Since the eeas is not formally conferred powers in the operational field, it would be difficult to argue that other eu bodies should exercise their powers with the regard for the eeas’s ‘powers’. Thus, for instance, a Commission act violating Article 9 of Decision 2010/427 would not seem to breach the rule whereby each eu organ must have due regard for the powers of other bodies: this provision indeed gives the Service a mere role of administrative assistance, and not a decisionmaking power.244

Conclusion of Chapter 4

Having been created to coordinate the main decision-makers of eu ­foreign affairs, the eeas should be sufficiently independent not to be ­considered as an ‘agent’ of any of them. In fact, if the Service were the longa manus of the States, 240 See Chapter 6.I.2.2. 241 See Chapter 4.I.2. 242 In addition, one may note that the aforesaid Commission act would constitute a nonlegislative decision having general application, which does not affect the legal position of the eeas, and – therefore – cannot be challeged by the Service under Article 263(4) tfeu. See further Gatti, ‘Diplomats at the Bar’ (n 99 p 122), at 672. 243 Parliament v Council, C-70/88, eu:c:1991:373, para 22. 244 See further Chapter 6.I.2.2 and 6.I.2.3.

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or of the Commission, it would be redundant: these entities may coordinate with each other just as well. The analysis conducted in this chapter suggests that the eeas has an ample margin of independence, which is likely to be greater than that of the other administrations of the Union, for three reasons. First, the multiplicity of tasks of the eeas’s main master (i.e. the High Representative): he/she hardly has the time and resources to control the eeas in practice. Secondly, the absence of a design for the control of the Service: whereas the Treaties regulate the control over the Commission in an explicit manner, the control over the eeas is defined by the combination of diverse rules, which have not been conceived in a systematic manner, and whose effects are uncertain. Thirdly, and most importantly, the potential conflicts between the eeas’s principals: the adoption of sanctions against the Service, which may regard financial, staff, or organisational issues, often require the agreement of different authorities (­notably, the  hr, the Council, and the Commission) which normally have ­different agendas. In other words, being a servant of many masters, the eeas is not completely subjected to any of them. This peculiar status should arguably give the Service the credibility that it requires to mediate between the different actors of eu external relations, in order to promote coordination and, ultimately, coherence. If one were to represent graphically the autonomy of, and the control over, the eeas, the picture may appear as Figure 1 below. In relative terms, the High Representative has the closest control over the Service, even if his/her ­authority is somehow diminished in the non-cfsp sphere by the influence of the Commission. This institution indeed exerts control over the Service, mostly when the latter operates in the formerly ‘Community’ sector. The Council, on the contrary, may closely control the Service in all areas, especially in respect of the cfsp, where the institution has the monopoly on legislative decisionmaking. Similarly, the relevance of the Member States’ influence may vary: whereas the importance of each State’s views in the non-cfsp area is relatively modest, they acquire distinct relevance in the cfsp field (which is subject to unanimity in the Council). The States’ influence over the eeas’s staff, and the European Council’s control over the Service, on the other hand, are not likely to be decisive. Finally, the Parliament’s grip on the Service appears quite tenuous at present; one may perhaps hypothesise that, in the f­ uture, the Parliament may manage to impose its influence on the Service, by relying on its legitimacy as the sole eu body elected by the citizens. This outcome will arguably depend, in any event, on the more general success of the Parliament in addressing the democratic deficit of the eu.

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Figure 1

Control over the European External Action Service

part 3 Activities of the eeas: Coordinating Foreign Affairs

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The first part of the analysis has suggested that the eu’s external action is fragmented because of the separation between the powers of the main decision-makers. To foster coherence, the Union needs a ‘coordinator’ with two main characteristics. In the first place, the coordinator should be ‘autonomous’; Chapters 3 and 4 have indeed shown that the eeas is largely independent from the main decision-makers of the external action. Secondly, it has been argued that the ideal coordinator of eu external relations should conduct coordinating activities, without impinging on the powers of coordinated authorities. For that purpose, the coordinator should be able to cooperate and integrate with other entities. The present part investigates the eeas’s coordinating activities, thus completing the analysis of the Service’s coordinating potential. It is submitted that the eeas regularly cooperates with other authorities, by consulting with them, exchanging information and providing support (Chapter 5). The Service can also integrate with other entities, by operating as their administration, or by absorbing their structures in its own (Chapter 6).

chapter 5

Cooperation with Other Authorities Cooperation plays a crucial role in ensuring coherence, as noted in Chapter 2. Consequently, it should be an essential part of the eeas’s coordination activity. Decision 2010/427 explicitly acknowledges that the eeas must cooperate with other authorities ‘to ensure consistency’ between the different areas of the Union’s external action and between those areas and its other policies.1 However, the exact content of the eeas’s duty of cooperation is not always described in detail in Decision 2010/427 (Section i). An assessment of the law and of the practice suggests that the eeas discharges the duty of cooperation by collaborating with other authorities in different ways: by consulting with other entities (Section ii), by exchanging information (Section iii), and by providing material support to the States’ diplomatic and consular relations (Section iv). i

General Considerations on the eeas’s Duty of Cooperation

There are numerous provisions, in primary and secondary law, that require the eeas and other authorities to cooperate (1). From a formal perspective, these provisions would not seem to provide for judicially enforceable obligations, but are nonetheless relevant for the conduct of the eeas’s activities in practice (2). Hence, a clarification of the rules regarding the eeas’s cooperation with other authorities is in order. Three issues are particularly relevant: the identification of the authorities with which the Service should collaborate (3), the delimitation of the substantive scope of the duty of cooperation (4), and the determination of its content (5). 1 Sources of the eeas’s Duty of Cooperation The eeas’s duty to cooperate with the Member States is expressly provided for in Article 27(3) teu, which stresses that the Service ‘shall work in cooperation with the diplomatic services of the Member States’. This phrase is echoed in Article 3 of Decision 2010/427 – a provision aptly titled as ‘cooperation’ – pursuant to which the eeas ‘shall support, and work in cooperation with,’ the diplomatic services of the Member States. Primary and secondary law further specifies the content of this duty with respect to the management of 1 Decision 2010/427 (n 132 p 94), Article 3.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004323612_009

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d­ iplomatic relations. Article 221(2) tfeu generically holds that eu Delegations ‘shall act in close cooperation with Member States’ diplomatic and consular missions’. The teu provides for more detailed obligations: national diplomatic missions and eu Delegations must cooperate in the formulation of common approaches (Article 32), in their implementation, and in ensuring that common approaches are complied with (Articles 32 and 35). In addition, they must exchange information, and carry out ‘joint assessments’ (Article 35). Decision 2010/427 teu echoes these provisions, by asserting that the Union Delegations must work ‘in close cooperation’ and ‘share information with’ the diplomatic services of the Member States (Article 5(9)). They must also ‘support’ the Member States in their diplomatic relations and in their role of providing consular protection to citizens of the Union in third countries (Article 5(10)). The eeas’s duty to cooperate with eu organs is not expressly provided for in any primary law provision. This lacuna is filled by secondary law. Article 3(1) of Decision 2010/427 affirms that the eeas ‘shall support, and work in cooperation with’ the General Secretariat of the Council and the services of the Commission. The content of this provision is specified by Article 3(2), which holds that the eeas and the services of the Commission ‘shall consult each other’ on all matters relating to the external action of the Union. Article 3(4) widens the scope of cooperation, by stipulating that the eeas ‘shall extend appropriate support and cooperation’ to the other institutions and bodies of the Union, and that it ‘shall benefit’ from their support and cooperation.2 It would seem established, therefore, that the eeas must cooperate with the main decision-makers of the external action. Nonetheless, there are some aspects of the eeas’s duty to cooperate that remain obscure. Does the duty of cooperation consist of a legal obligation? Which bodies are addressed by this duty? Is this duty applicable in all policy areas? What is its precise content? The next four paragraphs address these issues in turn. 2 Nature of the Duty of Cooperation At first sight, the eeas’s duty to cooperate with other authorities may perhaps be interpreted as a legal obligation, as suggested by the recurring usage of the word ‘shall’ in both primary and secondary law. It has been argued, in fact, that the terminology of cooperation used in Article 3 of Decision 2010/427

2 One may perhaps mention Article 4(5), too, which affirms that the High Representative and the eeas ‘shall be assisted where necessary’ by the General Secretariat of the Council and the relevant departments of the Commission. However, this provision would seem to concern administrative issues, rather than the management of eu policies.

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­recalls the terms of Article 4(3) and of Article 13(2) teu.3 Hence, the ‘obligation’ of cooperation between the eeas and other actors of the eu external ­action should allegedly find its ultimate foundations in the teu, and could be enforced accordingly at the judicial level.4 Such an interpretation of Article 3 of Decision 2010/427 appears appropriate in relation to administrative issues, as seen above,5 but does not seem convincing if applied to operational activities – which are the most important for the purpose of promoting coherence. To demonstrate this, one may recall that Article 13(2) teu stipulates that ‘each institution shall act within the limits of the powers conferred on it in the Treaties’, and that ‘the institutions shall practice mutual sincere cooperation’. Arguably, the letter of Article 13(2) suggests that conferral of powers and sincere cooperation are linked: the institutions must display loyalty when exercising their powers.6 The case-law seems to confirm the link between the duty of cooperation and conferred powers: the Court of Justice has expressly held that cooperation is exercised ‘within the limits of the powers conferred by the Treaties on each institution’.7 This argument is further corroborated by the fact that the bodies that are not conferred ­powers – such as eu services – are not formally autonomous and do not have legal personality.8 Consequently, they are incapable of being subject to any ­obligation  – i­ncluding the obligation of sincere cooperation.9 This arguably 3 Blockmans and others (n 3 p 1), at 16. 4 If this were true, the arrangements concluded by the eeas and other bodies (see infra) may represent the fulfilment of a legal duty of cooperation and, as such, they might be binding and judicially reviewable, see Blockmans and others (n 3 p 1), at 17. 5 See Chapter 3.II.2. 6 Klamert (n 130 p 45), at 12. 7 Parliament v Council, C-48/14, eu:c:2015:91, para 58; see also Council v Commission, C-73/14, eu:c:2015:663, para 84. 8 See Chapter 3.II.1 and Chapter 4.I.2. 9 The same conclusion may be reached by reasoning ab absurdo. Let us postulate, for the sake of argument, that services are bound by the obligation of sincere cooperation. Knowing that the interinstitutional agreements concluded by eu bodies may be binding insofar as they represent the fulfilment of the duty of cooperation, we would have to admit that any service that is bound by that duty may also enter into legally binding commitments vis-à-vis any other service. For instance, the Commission Secretariat may stipulate an agreement with the Council Secretariat and the Parliament’s administration to define the arrangements implementing the ‘conciliation’ procedure under Article 294(10) tfeu. By doing so, the services may potentially prevent their respective institutions from regulating as they wish the procedures applicable to their own activities (i.e. the conciliation procedure). Such an outcome is not acceptable, since administrative bodies would restrain the autonomy of the institutions from which they depend: the relationship between political and bureaucratic ­authorities

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means that the provisions that require cooperation between different services (such as Article 3 of Decision 2010/427) should not be seen as a specification of the duty of sincere cooperation stemming from Article 13(2) teu.10 Nonetheless, the provisions on the eeas’s cooperation, and the instruments adopted to implement them, are not entirely irrelevant from a legal perspective. They may actually have two purposes. First, they may constitute a ­specification of the duty of cooperation that is binding on the High Representative. For instance, in March 2012 the Commission and the High Representative ­adopted a Joint Decision providing for Cooperation Mechanisms concerning the Management of Delegations of the European Union,11 ostensibly to ‘set up collaborative arrangements’ between the eeas and the Commission Services for the management of Delegations. This instrument explicitly mentions the duty of cooperation enshrined in Article 3(1) of Decision 2010/427, and may reasonably be considered as a sui generis agreement which represents a fulfilment of the duty of cooperation, enshrined in Article 3(1) and ultimately founded on Article 13(2) teu. It is important to note, in any event, that this instrument was adopted by the High Representative, and not by the eeas. This indicates that the duty of sincere cooperation was considered as binding, not on the eeas, but on the High Representative.12 Hence, the provisions that ­regulate the eeas’s cooperation with the Commission, and the instruments that implement such provisions, may serve as an aid to the interpretation of Article 13(2) teu in judicial cases that concern the exercise of the High Representative’s powers. There is also a second, and more important, reason why the rules and instruments regarding the eeas’s cooperation with other authorities are relevant: they provide for ‘soft law’ guidance to the entities concerned. One may indeed argue that the duty of cooperation, though not binding, is aimed at producing practical effects, in that it influences the expectations of the actors concerned. Hence, this duty may have a ‘de facto effect’, even if it has not been attributed legally binding force as such.13

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would thus be reversed. Since administrative bodies cannot enter into binding arrangements, one may argue that they cannot implement the obligation of sincere cooperation and, presumably, are not directly bound by it. Rectius, Article 3 of Decision 2010/427 may constitute a specification of the obligation of sincere cooperation, but only with respect to administrative issues, see Chapter 3.II.2. Joint Decision of the Commission and of the High Representative, join(2012) 8 final, not published in the oj. A different view is expressed in Blockmans and others (n 3 p 1), at 17. Cf. Senden (n 54 p 150), at 112–113.

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This ‘de facto effect’ is presumably reinforced by the inter-service arrangements concluded by the eeas and other administrations. Article 3(4) of Decision 2010/427 allows the eeas to enter into service-level ‘arrangements’ with the services of the General Secretariat of the Council, the Commission, or other offices or bodies of the Union. These arrangements may have binding force when they concern administrative issues.14 On the other hand, when the arrangements concern operational issues (which are more relevant for policy coordination), they are unlikely to produce legal effects, since the Service is not bound by the duty of cooperation in this area. The Service has already concluded inter-service arrangements regarding operational issues. The most important one probably is the ‘Working Arrangements between Commission Services and the European External Action Service (eeas) in Relation to External Relations Issues’ (hereinafter: Working Arrangements).15 This instrument takes the form of a working document of the Commission Secretariat, but was negotiated ‘word by word’16 by eeas and Commission officials, and therefore constitutes an ‘arrangement’ between the two bodies. Although this instrument is formulated in a peremptory manner, it is arguably not binding on the eeas, since it regulates the exercise of the powers of the High Representative and those of the Commission, such as the issuing of instructions to Delegations, or the programming of development ­cooperation instruments. Besides the Working Arrangements, there is another important instrument, the Vademecum on Working Relations with the European External Action ­Service (hereinafter: Vademecum),17 which was also adopted as a working document of the Commission, but which was was not negotiated with the eeas.18 Therefore, the Vademecum may be seen as a codification of Commission procedures, which the eeas must respect when it takes part in the preparatory work relating to acts to be prepared by the institution (that is, when it ­operates

14 15 16

17 18

See Chapter 3.II.2. sec(2012) 48, not published in the oj. This is a quotation from a Commission official, involved in the negotiation of the ­Working Arrangements, (interview 19, September 2012); an eeas official, also involved in the n ­ egotiation, made similar remarks on the Working Arrangements (interview 17, ­September 2012). sec(2011) 1636, not published in the oj. In fact, eeas staff allegedly complained about the fact that they were not consulted ­during the preparation of the Vademecum, see Hrant Kostanyan, ‘The Rationales behind the European External Action Service: The Principal-Agent Model and Power Delegation’ (2014) 10 Journal of Contemporary European Research 166, at 176.

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like a service of the Commission).19 On the other hand, the eeas does not seem to be either legally or politically bound to respect the Vademecum when it prepares the acts of the High Representative. 3 Subjective Scope of the Duty of Cooperation After having discussed the nature of the eeas’s duty of cooperation, it is opportune to verify its subjective scope. In other words: which authorities is the eeas required to cooperate with? According to primary and secondary law, the eeas should cooperate with several authorities. The Treaties and Decision 2010/427 stress the importance of cooperation with three partners in particular: (i) the diplomatic services of the Member States, that is, foreign ministries, including ‘diplomatic missions’, consular missions, and headquarters in European capitals; (ii) ­Commission services; and (iii) The Council General Secretariat.20 Besides the duty of ­cooperation with the main decision-makers, Decision 2010/427 envisages the ­collaboration with the ‘other institutions and bodies of the Union’.21 This would seem to indicate that the eeas should cooperate with all the organs of the Union, irrespectively of their area of action and their status. Such an extensive interpretation appears logical. All policies may potentially interact with the eu’s external action: the Service must consequently cooperate, at least in principle, with any body of the Union. Furthermore, policy decisions may be taken at different political or administrative levels:22 it would be inopportune to limit the eeas’s cooperation to administrative organs, or to political ones. The original proposal for a Decision establishing the eeas did not contain any further specification of the subjective scope of the duty of cooperation. The final version of the Decision, on the contrary, provides for some details, probably introduced at the insistence of the European Parliament. The eeas must support ‘in particular’ the Parliament itself, it should cooperate with the 19 20

21 22

See Chapter 6.I.2.1. See also Article 18(4) teu and Decision 2010/427, Article 3(2). Interestingly, the requirement of cooperation extends to a single administration of eu Members (the foreign ministry): it is indeed the task of foreign ministries to coordinate national foreign policies, and make it possible for the eeas to coordinate them with each other and with the policies of the Union. On the contrary, the duty of cooperation with the main eu-level administrations extends to all services, including those having responsibility for foreign policy issues (e.g. Commission dg Devco) and those that manage ­internal activities. The eeas must indeed ensure coherence, not only between the different areas of the eu’s external action, but also between these and the other policies of the Union. Cf. Article 21(3) teu. Decision 2010/427 (n 132 p 94), Article 3(4). See Chapter 4.I.4.

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internal auditor of the Commission and with Olaf,23 and it must ‘fully cooperate’ with the institutions involved in the budget discharge procedure.24 It should also receive cooperation from other institutions and bodies ‘including agencies’. These specifications, in any event, seem redundant, since they reiterate the general requirement of cooperation originally proposed by the High Representative, or the duties imposed by other instruments.25 Once it is established that the eeas must cooperate with other authorities, one may wonder whether such authorities must also extend cooperation to the eeas. In some cases, reciprocity would seem impossible. Article 5(10) of D ­ ecision 2010/427, in particular, stipulates that, upon request by Member States, the Delegation will ‘support’ the States in their role of providing consular protection. The competence to protect eu citizens indeed belongs to eu States, not to the Union as such, and the eeas, in principle, may only ‘support’ the States in the conduct of their activities.26 In other cases, reciprocity is theoretically possible, but certain provisions of Decision 2010/427 may raise the suspicion that cooperation between the eeas and the Member States should be unilateral. Article 3(1), in particular, affirms that the eeas ‘shall support’ the diplomatic services of the Member States (a reference that was absent from the original proposal of the High Representative). Along the same lines, Article 5(9) stipulates that eu Delegations ‘share information’ with the diplomatic services of eu Members – whereas the original proposal affirmed that Delegations and diplomatic missions would have, ‘on a reciprocal basis’, provided all relevant information. Despite the formulation of these provisions, cooperation should arguably be bilateral. The eeas would be unable to perform its tasks if the other ­authorities did not cooperate. One may doubt whether the Service may ‘work together’ (co-operate) with someone that refuses to work with it.27 The ­Treaties indeed confirm that cooperation must be reciprocal: the eeas must work ‘in cooperation’ with diplomatic services (Article 27(3) teu) while Delegations 23 24 25

26 27

Decision 2010/427 (n 132 p 94), Article 3(4). Id., Article 8(6). For instance, Article 3(4) of Decision 2010/427 requests that the eeas adopt without delay the decision on the terms and conditions for internal investigations, as ‘required by’ the Regulation on Olaf’s investigations. Cf. Regulation 883/2013/eu/Euratom concerning investigations conducted by Olaf (n 61 p 152). See Chapter 5.Iv.2. Cf. Gianluca Rubagotti, ‘Il Servizio europeo per l’azione esterna e il ruolo delle delegazioni dell’Unione nei Paesi terzi’ in Alessandra Lang and Paola Mariani (eds), La politica ­estera dell’Unione europea: inquadramento giuridico e prassi applicativa (Giappichelli 2014), at 74–75.

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and diplomatic missions must ‘cooperate’ (Articles 32 and 35 teu). It may be wondered why the final version of Decision 2010/427 contains references to a unilateral support to national diplomacies, while the letter of the Treaties goes in another direction. Probably, the Council insisted on the use of misleading formulas for political, rather than legal, reasons. With the establishment of the eeas, eu Delegations became similar to national embassies.28 This may have generated concerns on the part of some eu Members, who might have felt that Delegations were turning into competitors of national missions. The Council might have decided not to emphasise the bilateral duties binding embassies and Delegations to avoid placing them on the same level, thus assuaging the concerns of national capitals. 4 Substantive Scope of the Duty of Cooperation The duty of cooperation between the eeas and other bodies is problematic, not only because of its nature and its subjective scope, but also because of its substantive one. It is unclear, in fact, whether the Service should cooperate with other bodies in all the areas of its operations, or if the duty of cooperation concerns specific issues. One may argue that the eeas’s duty of cooperation extends to the whole of eu competences. Article 3(1) of Decision 2010/427, in fact, expressly stipulates that the cooperation with other services of the Union is conducive to ‘consistency between the different areas of the Union’s external action and between those areas and its other policies’. This extensive interpretation of the substantive scope of cooperation ­implies that it concerns both ‘supranational’ and intergovernmental (cfsp) ­issues. It is worth noting that the duty of cooperation covers the Common ­Security and Defence Policy, too. To be sure, Article 3(2) affirms that the eeas and the services of the Commission shall ‘consult’ each other on all matters ‘except on matters covered by the csdp’. Consultation, however, appears as a specification of cooperation; hence, the limitation that applies to the former does not necessarily apply to the latter. Had the legislature wanted to restrain, not only the duty of consultation, but, more generally, the duty of cooperation, it would have done it expressly. The practice confirms this interpretation of Article 3(2). For instance, when the eu launched a csdp mission in the Central African ­Republic, the Commission’s humanitarian department remained ‘in  systematic contact with its eeas counterparts’, to ensure that military

28

See Chapter 6.II.2.1.

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a­ ctors had a clear understanding of the humanitarian issues, and respect for the modus operandi of humanitarian aid.29 Primary law may seem to introduce another restraint to the substantive scope of the eeas’s duty to cooperate with the Member States. Two Treaty provisions requesting cooperation in the diplomatic sphere, Article 32 and 35 teu, belong to the cfsp chapter: does this mean that eu Delegations and national embassies should only cooperate on cfsp matters, and should not cooperate on non-cfsp issues such as trade? This is not the case, since Article 221(2) tfeu, which is part of a title that concerns both cfsp and non-cfsp aspects, generically stipulates that Delegations, which represent the entire Union (in cfsp and non-cfsp areas alike) must act in close cooperation with Member States’ missions. Hence, it would seem that the duty of diplomatic cooperation extends to the entire spectrum of the external action.30 5 Content of the Duty of Cooperation If the subjective and substantive scope of the eeas’s duty of cooperation is quite evidently broad, its content is not straightforward: two or more entities may cooperate by conducting a number of activities. Law-makers seem to have clarified the content of the eeas’s duty of cooperation in primary and secondary norms, by employing different expressions, which, in principle, may have different meaning. Some provisions generically refer to ‘cooperation’. Articles 32 and 35 teu affirm that Delegations must ‘cooperate’ with national diplomatic missions. Similarly, Article 3(4) of Decision 2010/427 stipulates that the Service must ‘cooperate’ with Olaf and the Commission auditor. Other provisions are less succinct, but would seem to have the same meaning. Article 27(3) teu and Article 3(1) of Decision 2010/427 pleonastically affirm that the eeas must ‘work in cooperation’ with diplomatic services, Commission services, and the Council General Secretariat.31 Article 221(2) tfeu and Article 5(9) of Decision 2010/427 add another level of redundancy, by stressing that Delegations must work in ‘close’ cooperation with diplomatic missions. Another pleonasm is found in 29 30

31

Annual Report on the European Union’s Humanitarian Aid and Civil Protection Policies and their Implementation in 2014, com(2015) 406, 21 August 2015. In addition, one may note that even Article 35 teu – which is located in the cfsp chapter – does not have solely cfsp content, since it stipulates that eu Delegations must ‘­contribute’ to the implementation of the eu citizens’ right to diplomatic and consular protection (a non-cfsp issue). Hence, one may hypothesise that, similarly, the duty of cooperation enshrined in Article 35 teu has both cfsp and non-cfsp content. ‘Work in cooperation’ literally means ‘work in working together’.

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Article 3(4) teu, whereby the eeas ‘extends’, and benefits from, cooperation; this arguably means that the eeas ‘cooperates’ with other institutions and bodies. Finally, Article 8(6) – like Articles 221 and 5(9) – stresses that the eeas must ‘fully’ cooperate with budgetary authorities, but adds little to the picture: one may wonder whether cooperation in other cases should be less than ‘full’. Other provisions mention the duty to ‘support’, instead of the duty to ­cooperate. In theory, the action of supporting may be seen as a unilateral provision of assistance.32 Probably, the legislature used the word ‘support’ – in this sense in Article 5(10) of Decision 2010/427 – to describe the eeas’s duty to assist national consular missions, as seen above.33 In other provisions, however, the words ‘support’ or ‘assist’ are coupled with the word ‘cooperation’. ­Article 3(1) of Decision 2010/427 holds that the eeas must ‘support’ and work in ­cooperation with the diplomatic services of the Member States. Similarly, Article 3(4) affirms that the Service must ‘extend appropriate support and cooperation’ to eu institutions and bodies. In these cases, the notion of support is ­absorbed by the one of cooperation: how may a body cooperate with another one without supporting it? It would seem, therefore, that these provisions are pleonastic as well.34 There would seem to be only two areas in which the content of the duty of cooperation is spelled out in an intelligible manner. First, Article 3(2) of Decision 2010/427 stipulates that the eeas and the services of the Commission must consult each other on all matters relating to the external action of the Union (except on matters covered by the csdp). This duty of consultation, and the means used to implement it, are analysed in the next section. Secondly, ­Articles 32 and 35 teu clarify some of the duties of diplomatic missions and Delegations: contribute to formulating and implementing common approaches (to the cfsp), ensuring that cfsp decisions are complied with and implemented, exchanging information, and carrying out joint assessments. This ­issue is addressed in sections  iii and iv. These sections also take into ­account other forms of cooperation that exist in practice, although they are not ­expressly envisaged in Decision 2010/427. 32 33 34

Thus, for instance, eu administrations ‘support’ eu bodies ex Article 298 tfeu, while the eeas assists the High Representative ex Article 27(3) teu. See Chapter 5.I.3. Similar considerations are applicable to Article 5(4) of Decision 2010/427, which affirms that the eeas is ‘assisted’ by Commission services and by the Council General Secretariat: Article 3 clarifies that these administrations must ‘work in cooperation’. On the synonymity between assistance, support and cooperation in Decision 2010/427 see Blockmans and others (n 3 p 1), at 18.

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Consultation between the eeas and Other Authorities

The general discussion of the cooperation duty that concerns the eeas and other authorities, conducted above, may be completed by looking more ­indepth at the specific forms that cooperation takes in practice. This section discusses the main form of the eeas’s cooperation with other authorities, that is, consultation. The duty of consultation is expressly envisaged by Decision 2010/427, especially with respect to eeas-Commission relations (1). The ­instruments and procedures that implement the duty of consultation between the eeas and the Commission may indeed have significant repercussions on ­policy-making (2). The consultation between the eeas and other entities, on the contrary, is more evanescent and less capable of influencing decision-­ making in practice (3). 1 Duty of Consultation with Commission Services Article 3(2) of Decision 2010/427 explicitly introduces a duty of mutual consultation for the eeas and Commission services, by stipulating that ‘the eeas and the services of the Commission shall consult each other on all matters relating to the external action of the Union’. This provision raises four interpretative issues. The first derives from the last sentence of Article 3(2), which reads ‘this paragraph shall be implemented in accordance with Chapter 1 of Title v of the teu, and with Article 205 tfeu’. Chapter 1 of Title v of the teu consists of the ‘General provisions on the Union’s external action’, which apply to both cfsp and non-cfsp actions.35 Article 205 tfeu merely recalls that the eu’s action on the international scene is conducted in accordance with the general provisions on the Union’s external action. The relationship between these provisions and the duty of mutual consultation between the eeas and Commission services, contained in Article 3(2) of Decision 2010/427, is not evident. All external action procedures – and not only the consultation between the eeas and other services – should be implemented in accordance with the principles set out in Chapter 1 of Title v of the teu.36 Therefore, one may surmise that the last sentence of Article 3(2) is redundant. The second interpretative issue is more significant, and regards the scope of the duty of mutual consultation. As seen above, the eeas’s duty of ­cooperation 35

36

It is composed by Article 21 teu, setting out the principles and objectives of the eu’s f­oreign policy, and Article 22 teu, which regulates the adoption of the European Council’s decisions on the strategic interests and objectives of the Union. Blockmans and others (n 3 p 1), at 19–20.

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covers, in principle, all areas of foreign affairs.37 The duty of consultation with Commission services is narrower in scope, since Article 3(2) affirms that the eeas and Commission service must consult each other on all matters, ‘except on matters covered by the csdp’. Since the csdp is mainly under the responsibility of the High Representative (and of the eeas) the first sentence of ­Article 3(2) would seem to introduce a restriction to the duty of consultation that binds the eeas: the Service is not required to consult Commission departments in the preparation of csdp acts. It is worth noting that this exception was absent from the original proposal of the High Representative, and was introduced during the quadrilogue that led to the adoption of Decision 2010/427, presumably at the insistence of the Council. The reason for the States’ concern probably depends on their jealous control of defence issues, and their mistrust of the Commission in this field.38 The eeas is likely to be more sensitive to the States’ priorities, since it is more closely controlled by the Council. Given its composition and its smaller size, the eeas is also likely to be better capable of protecting the confidentiality of defence-related information. Hence, one may suppose that the Council wanted the eeas to manage csdp issues free from the Commission’s interference. Since Article 3(2) introduces an exception, it implicitly acknowledges the existence of a rule: the eeas and Commission services must consult each other on all issues other than the csdp. This means that Commission services must consult the eeas in the preparation of decisions relating to any foreign affairs issue under their responsibility. On the other hand, the eeas must consult Commission services in the preparation of non-cfsp instruments, which it manages under the responsibility of the Commission itself, as well as in the conduct of cfsp activities that do not have csdp content. For instance, the eeas must consult the Commission in the preparation of documents related to the ­promotion of human rights in eu foreign policy.39 The third, and main, interpretative issue raised by Article 3(2) is related to the definition of consultation. The Decision does not describe which a­ ctions the eeas should perform in order to ‘consult’ Commission services (and ­vice-versa). One may nonetheless identify the content of such a consultation 37 38

39

See Chapter 5.I.4. In fact, the Member States accepted the transfer of csdp structures from the Council to the eeas on the condition that the latter be autonomous from the Commission, ­Christoffersen (n 9 p 2), at 99. This is the case, for instance, of the eu Guidelines on the Promotion and Protection of freedom of Religion or Belief, 25 June 2013, doc. 11491/13; on the cfsp nature of this instrument see Gatti, ‘The Log in Your Eye’ (n 99 p 36), footnote 66.

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through an analogy with legislative procedures. Article 289(1) tfeu stipulates that the special legislative procedures consist of the adoption of an act by the Council with the participation of the Parliament, or by the latter with the participation of the Council. This means, in practice, that the Council (or the Parliament) may adopt legal acts ‘after consulting’ the Parliament (or the Council).40 The Court held in Roquette Frères that the Council’s duty to consult the Parliament means that the former must not only request but also obtain the opinion of the latter. The provision of the Parliament’s opinion is indeed necessary to enable it to play a part in the legislative process.41 The duty of ­consultation that is imposed on the eeas and on Commission services is arguably of a similar kind. One service should obtain the opinion of the other(s) before finalising policy documents, or before submitting preparatory acts to political authorities for approval. Therefore, the Commission services should consult the eeas before submitting documents to the College of the Commissioners, and the eeas should consult Commission services before submitting documents to the High Representative, or to other Commissioners. The rationale for such a duty of consultation is transparent. The eeas and Commission departments conduct similar and complementary activities. The Service ensures the administrative management of the cfsp and of a few ­non-cfsp policies (under the authority of the Commission), while the Commission departments are responsible, at the administrative level, for the other non-cfsp actions. Despite their separation at a legal level, the different policies of the Union partially overlap in practice.42 It is necessary to ensure some kind of connection between the different strands of the external action. Given the crucial role played by administrations in policy-making, the eeas and Commission services should cooperate in the performance of their respective functions, to foster coherence in foreign affairs, from the beginning of the policy-making process. The duty of mutual consultation aims at promoting such a cooperation, by enabling the eeas to play a part in the administrative process of all non-cfsp actions related to foreign affairs, while Commission departments may play a part in the policy-making of the cfsp and of the noncfsp initiatives under the responsibility of the Service. Fourthly, and lastly, one may wonder whether Article 3(2) of Decision 2010/427 requires the eeas and Commission services to do more than simply consulting. The second sentence of Article 3(2) indeed stipulates that the eeas is to ‘take part in the preparatory work and procedures relating to acts to be­ 40 41 42

See e.g. Article 262 tfeu. sa Roquette Frères v Council, Case 138/79, eu:c:1980:249, paras 33–34. See above, Chapter 1.II.1 and 1.III.3.

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prepared by the Commission in this area’, i.e. in ‘the external action of the Union’.43 It has been contended that this entails ‘participative rights’ of the eeas in policy shaping in all areas of eu external action, which go further than mere consultation; such an interpretation is allegedly corroborated by the existence of communications adopted jointly by the hr and the Commission.44 However, this interpretation does not seem entirely satisfactory. The eeas does not seem to have any ‘right’ stricto sensu with respect to participation in any Commission activity.45 The adoption of joint communications, in fact, is not a consequence of Article 3(2), but a corollary of the distribution of powers in the Treaties. Joint communications, by definition, have both cfsp and non-cfsp components and must consequently be adopted, not only by the Commission, but also by the hr, acting in his/her capacity as High Representative (not as a Vice-President of the Commission).46 Hence, the hr’s Service, i.e. the eeas, must ‘take part’ in their preparatory work, beside Commission services.47 To better interpret the second sentence of Article 3(2) one should arguably see it as a specification of the first sentence: Commission services must 43

44 45

46

47

One may note that a literal appraisal of Article 3(2) of Decision 2010/427 may seem to suggest that the expression ‘this area’ refers to the ‘matters covered by the csdp’, which is indeed the last ‘area’ mentioned by the first sentence of that provision; see Blockmans, ‘­Beyond Conferral’ (n 79 p 31), at 12. The drafting history of Decision 2010/427, however, suggests another interpretation. The original proposal of the hr did not contain any reference to a csdp exception at the end of the first sentence (which ended with a reference to ‘the external action of the Union’). Hence, it would seem that the subsequent sentence (‘The eeas shall take part in the preparatory work […] in this area’) allows the eeas to take part in the Commission preparatory work relating to ‘the external action’. In fact, it would not seem probable that, by inserting the csdp exception at the end of the first phrase, the legislature actually intended to restrain the substantive scope of the subsequent phrase. Blockmans and others (n 3 p 1), at 19. A partial exception applies to development cooperation issues. The eeas has a role in the preparation of some programmes managed by the Commission, as required by Article 9 of Decision 2010/427 (see Chapter 6.I.2.2). At any rate, that is a consequence of Article 9, not of Article 3(2). Cf. Vademecum (n 17 p 199), at 10: ‘The ‘joint’ nature of a Communication or Report is decided based on its substance, not because of the services involved in its preparation: i.e. only if the substance is a mixture of Commission competences and cfsp/csdp issues does the document become a Joint Communication or a Joint Report’. Similar considerations apply to the situations in which participation of the eeas in the Commission structure is allegedly required by the Treaty provisions (cf. Articles 215 and 222 tfeu), Blockmans and others (n 3 p 1), at 19.

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cooperate with the eeas by allowing it to ‘take part’ in its preparatory work and procedures. The eeas is not generically ‘consulted’ by the Commission, but ­actually contributes to the activities of its departments as if it were one of them. Such an interpretation appears logical, in particular, in light of Article 18(4) teu, which stipulates that in exercising these responsibilities within the Commission the High Representative is bound by Commission procedures. One may assume that the hr’s Service should also be bound by those procedures, and consequently ‘take part’ in Commission procedures on equal footing with other departments of the institutions. The practice, discussed in the next paragraph, would seem to confirm this interpretation of Article 3(2). Implementation of the Duty of Consultation with Commission Services The duty of mutual consultation between the eeas and Commission services is implemented mainly through the participation of the Service in two ­administrative procedures. In the first place, the eeas takes part in the socalled Inter-Service Groups (isg). An isg may be defined as ‘a group or a network of Commission services, set up formally and characterised by its internal composition, the continuity of coordination and the definition of a clear remit which is unchanged throughout the life of the group’.48 In other words, the isg is an informal meeting of the representatives of Commission services interested in a specific policy area, which is chaired by the service having the main responsibility in that field. There are more than 250 isgs, several of which present an external dimension.49 isgs function as informal groups for discussion, where the DirectorateGeneral with the main responsibility for an area can obtain the views of other services, and where the latter may share their thoughts and voice their discontent about the lead dg’s initiatives. The discussion in the isg is not meant to generate any binding outcome, but nonetheless contributes to foster coordination before policy proposals are made, by fostering debate among the different services.50 2

48

49

50

European Commission, Inter-service Coordination Group, internal document, cit. in AnneClaire Marangoni, ‘Coordination of External Policies: Feudal Fiefdoms to C ­ oordinate – Organisational and Procedural Frameworks of Consistency within the European Commission’ in Astrid Boening, Jan-Frederik Kremer and Aukje van Loon (eds), Global power Europe. Volume 1 (Springer 2013), at 44. Marangoni (n 48 supra), at 44; Alan Hardacre, ‘The European Commission’ in Alan Hardacre (ed), How the eu Institutions Work and … How to Work with the eu Institutions (Harper 2011), at 27. Marangoni (n 48 supra), at 44; Hardacre (n 49 supra), at 27.

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Before the Lisbon reform, dg Relex chaired isgs on a wide range of bilateral, multilateral, and cfsp-linked issues (e.g. Group on non-proliferation and disarmament).51 After the establishment of the eeas, such responsibility fell to the Service, which should invite other services to participate in the groups it chairs.52 Conversely, Commission services chairing Commission inter-service groups with an external relations dimension should invite the eeas, either on an ongoing basis, or where an agenda item has important external implications. The participation in isgs evidently gives the eeas an opportunity to ‘take part in the preparatory work and procedures’ relating to acts to be prepared by the Commission, to the extent that the Service is treated as if it were a department of the institution. This arguably increases the eeas’s potential as a coherence-maker, by giving it the possibility to enter into multilateral dialogue with all the services concerned by the implementation of the Commission’s external actions, at the onset of the policy-making process. Secondly, the eeas participates in Commission activities through Inter-­ Service Consultation (isc). The isc is a procedure for the mutual consultation of Commission dgs, which must take place with regard to any document that is to be submitted to the College of the Commissioners, or which is to be presented to an outside body (e.g. Staff Working Documents).53 This procedure often takes place after one or more Inter Service Group meetings,54 and concerns instruments that are in a sufficiently advanced state of drafting. The Inter Service Consultation begins when the lead department uploads its ­proposal in the Commission intranet, and then circulates it through the electronic platform ‘cis-net’. The lead department also sets a deadline before which the other ­services must respond (with a minimum of 10–15 days). In theory, the department that launches the isc should include in the procedure all the services ‘with a legitimate interest in the initiative by virtue of their powers or responsibilities or the nature of the subject’55 – generally those that have also participated in the Inter Service Group.56 The lead department usually consults other departments in practice, too: a proposal that integrates the views of different departments is more likely to be accepted at later stages.57 51 Marangoni (n 48 p 209), at 44. 52 Vademecum (n 17 p 199), at 12. 53 Cf. id., at 9 and 11. 54 isg meetings may nonetheless be held while the isc is pending, to find compromises on the proposal. 55 Article 23(2) and (3) of the Commission rules of procedure (n 112 p 86). 56 Hardacre (n 49 p 209), at 35. 57 Marangoni (n 48 p 209), at 49.

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The services consulted through the Inter Service Consultation may either approve or oppose the proposal.58 A negative opinion does not prevent the leading department from submitting its proposal to the College of the Commissioners, but discourages it from doing so: the College normally uses the swift ‘silent assent’ procedure, but a proposal on which at least one service disagrees must be discussed through the more lengthy ‘oral procedure’.59 This explains why Commission departments generally seek to reach a compromise before submitting the proposals to the College. The eeas has been included from the onset in iscs, and is consequently an ‘entity’ in cis-net.60 Hence, the eeas must consult Commission services through cis-net when preparing a proposal for adoption by the Commission, i.e. whenever it drafts non-cfsp acts. This is a consequence of both Article 3(2) of Decision 2010/427 and of Article 18(4) teu, which requires the High Representative to respect Commission procedures.61 Similarly, Commission services must consult the eeas through cis-net when they launch a consultation with a foreign affairs dimension. The Service may thus ‘take part’ in Commission procedures, within the meaning of Article 3(2) of Decision 2010/427. This participation of the eeas in the Inter Service Consultations gives it the ability to know all the external relations initiatives of Commission departments b­ efore they are discussed at the political level: the Commission indeed votes only on proposals that have gone through the isc. Moreover, this procedure gives the eeas the opportunity to express its views on the activities of Commission ­departments and to influence their conduct before proposals are formalised. If a Commission department circulates via cis-net a document that the eeas does not approve (e.g. because it is incoherent with the eu’s strategy), the ­Service may respond with a negative opinion to the Consultation. This should

58

59 60 61

Approval can come in three ways: tacit approval, explicit approval without comments and favourable opinion subject to taking comments into account. In the last case, the consulted department approves the proposal, but submits comments and formulates a­ dvice. The leading dg may decide not to follow the advice, but must motivate its ­decision not to take the comments into account. Cf. Commission rules of procedure (n 112 p 86), Articles 8, 12 and 23(3). Vademecum (n 17 p 199), at 9. One may note that, while the eeas must consult Commission departments in respect of non-cfsp instruments, it may launch a Consultation on proposals to be adopted by the hr in the field of cfsp; cf. Vademecum (n 17 p 199), at 9. The Service is indeed bound by Commission procedures when exercising its responsibilities within the Commission, and ‘only for these responsibilities’ (Article 18(4) teu). In any event, the eeas must consult Commission departments on cfsp proposals, through cis-net or via other means.

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prompt Commission departments to negotiate the content of their proposals with the Service, and eventually to revise parts of their drafts. Duty of Consultation with the Member States and eu Bodies, Offices or Agencies While Decision 2010/427 explicitly provides for a duty of consultation between the eeas and Commission departments, it is silent in respect of the consultation with other eu bodies and the Member States. One may nonetheless ­hypothesise that the eeas should consult with the other main decision-­ makers of the external action. The Member States should arguably consult the eeas, at least, in all situations in which the Union has already adopted a (cfsp) position. The pfos judgement suggests that, whenever the eu has defined an external ‘strategy’, the Member States cannot dissociate from it without violating their duty of sincere cooperation.62 Moreover, they are bound to consult European authorities before acting at the international level, as made clear in Inland Waterways.63 The European authority concerned, in the csfp domain, would be the High Representative and, thus, the eeas. The States’ obligation to consult the eeas in the cfsp area is, of course, non-enforceable before the Court, differently from the obligation to consult the Commission in the non-cfsp field. One may surmise that the obligation may nonetheless have some relevance in practice, since the eeas might invoke the States’ obligations as a political argument in the internal debate. 3

62 See Commission v Sweden (pfos) (n 126 p 44). This judgement concerns non-cfsp issues, but the interpretation of sincere cooperation it enucleates seems applicable to the cfsp too. Arguably, when the Council has defined a cfsp position, the States should not contradict it through their policies. Article 24(3) teu confirms this argument, since it expressly affirms that the States must ‘refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations’. 63 See the Inland Waterways cases: Commission v Luxembourg and Commission v Germany (n 123 p 44). In these cases, the cjeu held that the adoption of a decision authorising the ­Commission to negotiate an agreement on behalf of the Community ‘marks the start of a concerted Community action at international level’ and gives rise to a duty of close cooperation, which implies that the Member States consult the European representative ­before entering, in their own capacity, into international agreements whose conclusion may negatively affect concerted Union action. One may argue that, when the eu agreement deals with non-cfsp issues, the Member States should consult the Commission (i.e. the non-cfsp representative). If the agreement belongs to the cfsp sector, on the contrary, the States should consult the negotiator for the cfsp, i.e. the High Representative (and, therefore, the eeas). On the role of the Commission and of the hr as eu negotiators, see Gatti and Manzini (n 156 p 51), at 1708–1709.

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The existence of a duty of consultation between the eeas and eu bodies, offices, or agencies is more dubious. One may argue that eu bodies with external relations responsibilities are under an implicit duty to consult the eeas, which descends from a teleological reading of the duty of cooperation enshrined in Article 3 of Decision 2010/427.64 The cooperation between the eeas and other bodies is indeed meant to ensure ‘consistency between the different areas of the Union’s external action and between those areas and its other policies’, as recognised by Article 3(1). The case may be made that the eeas would not be able to ensure coherence if it were not even consulted before other bodies take action on the international stage. For instance, the administrative arrangements that Frontex concludes with the border management authorities of third States may have an impact on the eu’s external relations, notably because said authorities may not conduct their operations with an exemplary respect for the human rights of migrants.65 Frontex should at least ask for the eeas’s opinion before entering into such arrangements. The effectiveness of such a duty of consultation, in any event, is likely to be dependent on the establishment of specific administrative procedures, especially through interservice (or service-agency) arrangements, which seem to be lacking at present. iii

Exchange of Information

The second form that cooperation may take in practice, after consultation, is the exchange of information. It is frequently affirmed that the eeas has an important role to play in providing information to different authorities involved in eu foreign affairs.66 The Service is indeed at the centre of the eu’s system for the exchange of cfsp-related information (1). It also contains structures that allow it to collect, analyse and disseminate information in different sectors, notably diplomacy (2), intelligence (3), and crisis response (4). 1 Exchange of cfsp Information: eeas and Coreu The exchange of information among the Member States has been critical to the creation of cfsp, and has paved the way to its institutionalisation.67 The 64 65

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Blockmans and others (n 3 p 1), at 19. Claire Rodier, ‘L’action de frontex: quelle transparence pour quelle legalité?’ in L­ aurence Dubin (ed), La legalité de la lutte contre l’immigration irrégulière par l’Union ­Européenne (Bruylant 2012), at 174–175. See e.g. Helwig, Ivan and Kostanyan (n 131 p 168). Federica Bicchi and Caterina Carta, ‘The coreu Network and the Circulation of Information within eu Foreign Policy’ (2011) 34 Journal of European Integration 465, at 478.

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pre-Lisbon text of the teu expressly acknowledged the importance of information sharing, by stipulating that Member States had to ‘inform’ and consult one another within the Council on any matter of foreign and security policy of general interest (Article 16). The current version of the teu no longer mentions the duty of information, but refers only to the States’ obligation to ‘consult’ one another (Article 32). This does not mean, of course, that the Member States should not ‘inform’ each other: consultation would be impossible w ­ ithout the exchange of information. Since the Court has very limited jurisdiction on the cfsp, the duty ­enshrined in Article 32 teu cannot be enforced judicially. Moreover, this duty is rather vague, since the Treaties do not specify which information the States should share. This suggests that the obligation to ‘inform’ is more political than legal.68 Nonetheless, the Member States seem to have taken this duty seriously, as testified by the establishment, in 1973, of a system for the exchange of information relating to the epc/cfsp: ‘Coreu’ (CORrespondance EURopéenne). Coreu is a network linking the main cfsp decision-makers. The physical infrastructure supporting Coreu is called Cortesy (COReu TErminal SYstem), and may be described as ‘a sophisticated telex system via encrypted transmission with dedicated terminals’.69 Each participant in the Coreu/Cortesy network has a single office capable of sending and receiving messages, the ‘European ­Correspondent’, which ensures that the information inserted in Coreu represents an official position. Once a message is introduced in Coreu, it is normally circulated to all the other participants in the network. The original aim of the Coreu network was to facilitate the exchange of ­confidential information about foreign policy among Member States, and ­especially officials based in national capitals.70 Coreu seems to have worked well in practice: according to Bicchi, the participants exchanged some 5000 messages in 1983 and 13000 in 2002. There has been a decline in the number of messages exchanged after 2007, but in 2011 there were still 30 to 100 messages exchanged per day.71 The content of the messages varies: they may include policy analyses and reports, as well as documents in which States summarise the content of their bilateral discussions with third countries.72

68 69 70 71 72

Cf. Bicchi and Carta (n 67 p 213), at 466. Ibid. Federica Bicchi, ‘The European External Action Service: A Pivotal Actor in eu Foreign Policy Communications?’ (2012) 7 The Hague Journal of Diplomacy 81, at 83. Id., at 84. Bicchi and Carta (n 67 p 213), 476.

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The Coreu network initially comprised only the Member States, but later came to include also the Commission and the Council Secretariat. Before the Lisbon reform, the administration of the network was entrusted to the Council General Secretariat. The main providers of input were, besides the biggest Member States, the Council Rotating Presidency and the General ­Secretariat itself. The role of the Presidency in Coreu was linked to the exercise of its ­powers: setting the agenda for the Council, and circulating proposals in ­advance of meetings. The General Secretariat’s activity, on the other hand, reflected its role of support to the Council; the Secretariat submitted mainly minutes of meetings, reports from the eu Special Representatives, and briefings about the state of negotiations.73 The establishment of the eeas brought about a significant change in the functioning of Coreu. The Service was included from the onset in the network, and was entrusted with its management. Because of its multiple functions, the eeas is bound to become the main actor in this field. It indeed substitutes for the administration of the Presidency, since it assists the President of the Foreign Affairs Council (i.e. the High Representative), and chairs numerous Council preparatory bodies. What is more, the eeas distributes information that it ­collects autonomously – notably, reports from the Heads of eu Delegations, and reports on the negotiation of agreements with third countries. This explains why, already in the first semester of 2011, the eeas circulated about 27% of Coreu documents.74 The eeas’s contribution to Coreu is likely to acquire even greater importance in the future, considering that the Member States’ officials acknowledge the ‘increasing quality’ of the reports the Service circulates.75 The eeas’s contribution to the distribution of information, at any rate, ­encounters an obstacle. While the Service may reinforce cooperation by distributing information, it cannot force the Member States to feed information into the system. This problem depends, at least in part, on the possibility that messages transferred via the network may be ‘leaked’ to third parties. Coreu messages, in principle, are confidential, like typical diplomatic telegrams,76 and their content normally is not disclosed either to the governments of third 73 74 75

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Bicchi (n 70 p 214), at 86–87. Id., at 88. See also Helwig, Ivan and Kostanyan (n 131 p 168), at 25. Andrea Frontini, ‘Allegro ma non troppo: The European External Action Service and ­Italian Diplomacy’ in Rosa Balfour and Kristi Raik (eds), The European External Action Service and National Diplomacies (European Policy Center – Finnish Institute of International Affairs 2013), at 28. Olli Mattila v Council, T-204/99, eu:t:2001:190, para 49, emphasis added.

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countries, or to other eu bodies.77 Nonetheless, certain third States – such as  the United States, Russia, and Israel – are apparently able to get hold of draft documents prior to discussion. For instance, Denmark shared with the us a Coreu document regarding the relations with the self-proclaimed republic of Abkhazia in 2009, even if this document was labelled as ‘restreint’ (i.e. restricted), meaning that its disclosure could be disadvantageous to eu interests.78 Consequently, national officials do not feed very sensitive information into the system79 – and are unlikely to do so notwithstanding the eeas’s intervention. 2 Exchange of Information at the Diplomatic Level The Coreu system, which links the headquarters of the eeas with those of the Member States, is mirrored by the exchange of information between eu Delegations and Member States’ embassies in the capitals of third countries. Retrieving information is one of the primary tasks of diplomatic missions. The ability of a subject to conduct an external policy depends indeed on its capability to acquire information, not only on international relations as such, but also on the politics and policies of other international actors. To collect information, States may establish permanent offices in other countries, known as diplomatic missions or embassies. Diplomatic missions retrieve information, in particular, on bilateral relations between the sending and the receiving State; on local political, social, and cultural events; on the relations of the State of accreditation with other States; and on the local repercussions of facts ­occurring in the sending State.80 Although eu Delegations are not ‘embassies’ stricto sensu (since this ­definition applies only to the offices set up by States),81 they have always

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Although Coreu documents are classified, their content may be disclosed, whenever such disclosure is not likely to harm the interests of the Union or of its Members. See, inter alia, Council v Heidi Hautala, C-353/99, eu:c:2001:661; Olli Mattila v Council, C-353/01 P, eu:c:2004:42. See the us diplomatic cable ‘Georgia/Abkhazia: mfa Explains FM Moeller’s ­Visit’, 14  October 2009, disclosed by Wikileaks and available at accessed 18 November 2015. Bicchi and Carta (n 67 p 213), at 475. Article 3(1) of the Vienna Convention on Diplomatic Relations, 18 April 1961, un Treaty Series, vo1. 500, p. 95, expressly recognises this function of diplomatic missions, by stipulating that they may ascertain ‘by all lawful means conditions and developments in the ­receiving State’. See further Adolfo Maresca, La missione diplomatica (Giuffrè 1967), at 151. See Chapter 6.II.2.1.

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­gathered information on behalf of their sending authorities.82 eu Delegations continue collecting information about diverse aspects, such as the protection of fundamental rights in third countries.83 Given the importance of information for diplomacy, the establishment of the European Political Cooperation and of the cfsp soon led to the exchange of information between the Member States’ missions, as well as between the States and the Commission. The Amsterdam Treaty recognised that the diplomatic and consular missions of the Member States and the Commission Delegations in third countries, and their representations to international organisations, ‘shall step up cooperation by exchanging information’.84 This provision is now part of Article 35 teu. Article 5(9) of Decision 2010/427 similarly stipulates that Union Delegations must ‘share information’ with the diplomatic services of the Member States. As seen above, these provisions provide for a symmetric duty to collaborate: both the Delegations and the Member States’ missions must share information.85 Moreover, one may argue that Delegations and embassies should share information on all issues, in cfsp and non-cfsp areas alike. Article 5(9) of Decision 2010/427 is indeed formulated in general terms. The symmetric character of the duty to share information and its broad content may perhaps suggest that Delegations may function as ‘information hubs’, which collect information from the States and then distribute it.86 This may potentially reinforce the eeas’s coordinating potential. 82

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The very first European delegation, an office opened in 1954 in London by the European Coal and Steel Community, originally served as an information and communications office. Michael Bruter, ‘Diplomacy without a State: The External Delegations of the ­European Commission’ (1999) 6 Journal of European Public Policy 183, at 183. Cf., e.g., the Local eu Statement on demolitions and forced evictions, by the eu Delegation to Azerbaijan, 12 August 2011, available on the website of the eu Delegation to ­Azerbaijan, accessed 18 November 2015. The Binayak Sen case constitutes another example: observers from the eu delegation to new Dehli and the diplomatic missions of some Member States monitored the hearing of a alleged member of the Indian Maoist Party in 2010, see Mohua Chatterjee, ‘eu Observers Want to Watch Binayak’s Trial’ The Times of India (23 January 2011) accessed 19 December 2015. Article J.10 teu, as modified by the Amsterdam Treaty. See Chapter 5.I.3. Cf. Frauke Austermann, Towards Embassies for Europe? eu Delegations in the Union’s D ­ iplomatic System (dseu Policy Paper 2012) accessed 19 ­December 2015, at 5.

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Nonetheless, the potential of the Delegation should not be overestimated. The duty enshrined in Articles 35 teu and 5(9) of Decision 2010/427 is rather vague: which information should the Delegations and the Member States share? One cannot expect that the States’ missions will share all the information they possess, since this would question the very possibility of conducting autonomous national foreign policies. A possible interpretation may be that national embassies should share the information that is necessary to formulate and implement common eu positions, as envisaged by Articles 32 and 35 teu. Moreover, they should avoid withholding information in a way that is ‘contrary to the interests of the Union’ (Article 24(3) teu). Even this interpretation, however, does not permit to identify with precision the margin of discretion of the actors involved. The practice seems to suggest that eu Delegations are generally willing to share information, while the States’ missions, and especially the embassies of some countries, are not always prone to do so.87 Some authors have expressed the ‘hope and expectation’ that this state of affairs will change as Member States’ diplomatic representations come to trust, and get used to, their eu counterparts.88 Increased trust may perhaps prompt eu States to be more active but is unlikely to eliminate the discretion that they enjoy in this area, or the States’ concern for the protection of sensitive information. Even in the long run, it is to be expected that the choice to share information at the diplomatic level will be motivated by national interests, rather than by considerations for the coherence of the eu’s foreign policy. This means that the effectiveness of the eu’s diplomacy, and of the eu’s external action as a whole, is likely to be linked to the eeas’s ability to retrieve information autonomously, through its staff in Delegations. Hence, the eeas should strengthen the information-collecting potential of the Delegations: eu missions should seek the exchange of information with the Member States’ embassies ­whenever ­possible, but should not be dependent on it. 3 Intelligence Exchange: The eeas’s Intelligence Support Architecture The exchange of ‘political’ information in Europe (via Coreu) and in third countries (through diplomatic missions) is complemented by the exchange of security-related information, notably intelligence. The eeas may play a pivotal role in this field too, thanks to its specialised structures. It must be stressed from the onset, at any rate, that the potential of the eeas (and of the Union

87 88

González Alonso (n 3 p 1), at 22. Blockmans and others (n 3 p 1), at 34.

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at large) is not unrestrained: lacking a secret service, the eu is largely dependent on the intelligence that originates from the Member States. The eeas’s role in the area of intelligence is indeed related to the ­analysis and distribution of the information retrieved by the States. For this purpose, the eeas set up an Intelligence Support Architecture,89 composed by two (­pre-existing) main bodies. Military intelligence is distributed through the eu Military Staff (eums), an organ originally created through Decision 2001/80/cfsp as a department of the Council General Secretariat. Decision 2010/427 transferred the eums to the eeas. This organ performs early warning, situation assessment, and strategic planning for csdp missions, by relying on national intelligence capabilities.90 Civilian intelligence, on the other hand, is distributed through the eu Intelligence and Situation Centre (IntCen), previously named Joint Situation Centre (SitCen). Like the eums, IntCen was originally a Council department, which Decision 2010/427 transferred to the eeas.91 IntCen is not a proper intelligence agency, since it does not collect information on the terrain, but simply provides strategic analysis.92 The work of IntCen is based on information provided by open sources (e.g. websites), eu organs (Delegations and csdp missions), as well as the Member States’ 89 90

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See the High Representative Decision hr dec (2012) 013, not published in the oj. Council Decision 2001/80/cfsp on the establishment of the Military Staff of the ­European Union, oj 2001 L 27/7. See also Council Decision 2008/298/cfsp amending Decision 2001/80/cfsp, oj 2008 L 102/25. It has been argued that IntCen lacks ‘any formal legal basis’, see Chris Jones, Secrecy Reigns at the eu’s Intelligence Analysis Centre (Statewatch 2013) accessed 19 December 2015, at 3. However, this criticism would not seem justified. To be sure, there would seem to be no specific piece of primary or secondary law calling for the ­establishment of SitCen, but such an instrument is not indispensable. IntCen was created through an internal decision of the Council, which may organise its internal departments as it sees fit, on the basis of its power of self-organisation (see Chapter 3.I.1). Similar considerations are applicable (mutatis mutandis) to the hr and the eeas. See also eeas 2011 Discharge, Answers by the High Representative/Vice President Catherine Ashton to the Written Questions of the Committee on Budgetary Control (2013) acces­sed 19 December 2015, para 3. eu IntCen Factsheet, 5 February 2015, available at http://eeas.europa.eu/factsheets/ docs/20150206_factsheet_eu_intcen_en.pdf (accessed 14 November 2015). In other words, the Intelligence and Situation Centre is not ‘in a position to tell someone that there might be an [improvised explosive device] on the roadside near Kandahar’, but simply provides for an outlook into the development in some of the crisis areas, Ilka Salmi, quoted in Kristof Clerix, ‘Ilkka Salmi, the eu’s Spymaster’ Mondiaal Nieuws (4 March 2014) accessed 19 December 2015.

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a­ uthorities. IntCen offers several ‘products’, including strategic papers, reports on the follow-up of a crisis, and threat assessments, focusing on risks for eu personnel in a given country.93 The potential ‘customers’ of eums and IntCen are the High Representative, eeas departments, Council bodies, as well as some eu agencies (such as Europol94 and Eurojust).95 The directors of these bodies decide on the distribution of reports and on the ‘need to know’ status of the officials that may access them.96 Thanks to the eums and IntCen, the eeas may function as an ‘information hub’97 in the field of intelligence, by collecting, analysing, and distributing ­intelligence to the authorities that need to know it to perform their tasks. The reports of eeas bodies may be attractive to the Council Members since they may ‘produce value added to any one national source’, by pooling the different national analyses.98 However, the potential contribution of the eums and of IntCen has two limits. First, the process whereby the States share intelligence with the eeas is relatively slow and would seem not to be appropriate for providing support to csdp missions.99 Secondly, and most importantly, ‘the Lisbon Treaty has not explicitly mandated that member state agencies must share information’ with the eeas.100 The Member States may provide the eeas with 93 94

eu IntCen Factsheet (n 92 p 219). Cf. Council doc. 14050/05, 7 November 2005, which contains the framework for exchanging classified information between Europol and the Council (Sitcen); according to a ­Europol e-mail communication to the author of June 2011 this framework was still ­applicable after the establishment of the Service. 95 Cf. Council Decision 2002/187/jha, Article 26(1), as amended by Council Decision 2009/426/jha, oj 2008 L 138/14: ‘Eurojust shall establish and maintain cooperative ­relations with at least: […] (d) the Council, in particular its Joint Situation Centre’. 96 Cf. eeas 2011 Discharge, Answers by the High Representative/Vice President Catherine ­Ashton to the Written Questions of the Committee on Budgetary Control (n 91 p 219). 97 eeas, ‘The eu Situation Room’, accessed 17 November 2015. 98 Simon Duke, ‘Intelligence and eu External Relations: Operational to Constitutive Politics’ in Tannelie Blom and Sophie Vanhoonacker (eds), The Politics of Information: The Case of the European Union (Palgrave Macmillan 2014), at 257. 99 Duke (n 98 supra), at 251. 100 Director of SitCen, quoted in Terri Beswick, eu Early Warning and Early Response C ­ apacity for Conflict Prevention in the Post-Lisbon Era (Clingendael 2012) accessed 19 December 2015, at 7. Even in the case of a terroristic attack against an eu country, and the subsequent activation of the Solidarity Clause (Article 222 tfeu), intelligence contributions should be made available ‘voluntarily’ by the Member States, ­Decision 2014/415, oj 2014 L 192/53, Article 6.

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some intelligence, notably in the ambit of cfsp and csdp initiatives, but such a collaboration remains voluntary; it is difficult to assess how complete the intelligence the States provide is. As in the case of diplomatic information, in the absence of a clear duty to share intelligence, cooperation remains dependent on the good will of the States, and ultimately on their short-term interests. There is little that the eeas may do to obviate this shortcoming: whereas the  Service might perhaps reinforce the Delegations’ potential in terms of ­information collection, as noted above, it can hardly establish a secret service of its own.101 Exchange of Information on Disasters and Political Crises: The eu Situation Room The eeas’s support to the exchange of security-related information extends beyond the domain of intelligence, to encompass information on crises, including natural and man-made disasters, as well as political events, such as wars. In these cases, in fact, the structures and procedures discussed above are insufficient, because of the need to rapidly collect and distribute the information related to the crisis, and that information only (to avoid overloading the response system with unnecessary data). The eeas set up a division – the eu Situation Room – that facilitates the exchange of information during crises. The eeas Executive Secretary-General created this body in 2011, by merging assets previously part of Council’s SitCen and the Commission’s dg Relex.102 The Situation Room monitors political crises and disasters worldwide, providing situation awareness 24 hours a day, 7 days a week. This division acquires information from Delegations, csdp missions, other eu bodies, the eu Satellite Centre, the Member States, and open sources (e.g. mass media and social media). It then distributes information to other eeas departments, by ensuring an alert service, by reviewing weekly 4

101 Cf. James Igoe Walsh, The International Politics of Intelligence Sharing (Columbia University Press 2010), at 99 ff; Pierluigi Salvati, ‘Intelligence cooperation in the European Union after Charlie Hebdo: What Role for the eu Intelligence Analysis Center?’ (2015) 10 Studi sull’integrazione europea 291, at 307–318. 102 See eeas 2011 Discharge, Answers by the High Representative/Vice President Catherine ­Ashton to the Written Questions of the Committee on Budgetary Control (n 91 p 219), para 3; Steven Blockmans, ‘L’Union fait la force: Making the Most of the Solidarity Clause (Article 222 tfeu)’ in Inge Govaere and Sara Poli (eds), eu Management of Global Emergencies: Legal Framework for Combating Threats and Crises, Studies in eu External Relations (Brill | ­Nijhoff 2014), at 131, footnote 61.

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a list of countries and regions at risk, and by producing a daily brief on worldwide international relations issues.103 Differently from Delegations and intelligence bodies, the Situation Room is not likely to lack information. The Room does not depend solely on the States’ contribution; in any event, the States probably have no interest in withholding emergency-related data. The main legal problem regarding the Situation Room is its relationship with a similar office, the Emergency Response Coordination Centre (ercc), formerly called Monitoring and Information Centre (mic). The ercc is a department of Commission dg Echo, which, like the Situation Room, monitors emergencies around the globe 24 hours a day, 7 days a week. ercc then distributes this information to the civil protection authorities of eu Members, and to the other departments of Echo. The coexistence of the emergency centres may potentially raise two problems. The most obvious one is duplication of resources: the Situation Room and the ercc make use of similar materials, such as computers, televisions, and satellite imagery. Secondly, there may be a duplication of functions. The mandates of the two centres overlap, at least to a certain extent.104 The Working Arrangements implicitly recognise this, when they stipulate that in case of a crisis outside the eu, the Commission and the eeas will cooperate, and that the ‘nature’ of the crisis will determine whether the ercc or the Situation Centre ‘will initiate the exchange of information’.105 This presumably means that the Situation Room should take the lead in case of ‘political’ (cfsp) crises, whereas the ercc should have a primary role in ‘humanitarian’ ones. Yet, who defines the nature of the crisis? Most crises are ‘complex’, since they involve 103 Julia Manchin, ‘Overview of Crisis Rooms’ in Patryk Pawlak, Andrea Ricci and Amir ­Mahmoud Abdulla (eds), Crisis Rooms: Towards a Global Network? (eu Institute for Security Studies 2014) accessed 21 August 2015, at 167–168. In addition, The Situation Room should ‘strengthen relations with relevant crisis coordination centres in the 27 Member States’, see Council press release, ‘High Representative Catherine Ashton visits the new eu Situation Room’, 18 July 2011, accessed 18 November 2015. 104 European Court of Auditors (n 136 p 94), para 20. The duplication of functions between the two centres, to be sure, is not perfect. Their areas of interest do not coincide: the Situation Room is concerned primarily with foreign affairs, while ercc monitors crises outside the eu and crises within the eu. The scope of their activity, moreover, is not identical, since ercc works on humanitarian issues, while the eu Situation Room is interested in all political crises, even if they do not raise humanitarian concerns. Finally, and most importantly, the Situation Room functions solely as an information hub, while the ercc has a wider mandate (see infra). 105 Working Arrangements (n 15 p 199), at 30.

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both humanitarian and security-related elements. May one easily distinguish between pieces of information relevant to cfsp crises and those that are relevant to non-cfsp ones? Given the similarity between the Situation Room and the Emergency ­Response Coordination Centre, eeas officials proposed to merge them, but the Commission refused.106 The creation of a single eu Emergency Response Centre, in fact, would raise legal and political issues. It would be difficult to ­justify the absorption of an organ that monitors political crises, such as the Situation Room, by a division of a humanitarian department, such as dg Echo. The reverse situation would seem equally unlikely, not only because of the predictable opposition of the Commission, but also because the mandate of ercc is wider than the one of the Situation Room. The Emergency Response Coordination Centre indeed provides financial support to eu Members and requests the mobilisation of the Member States’ resources under the Union Civil Protection Mechanism. One may wonder why a department of the European External Action Service should provide financial support to eu Members and request the mobilisation of their resources in case of internal disasters. The creation of a ‘joint’ situation room, in the form of a common organ of  the Commission and of the eeas, may constitute a possible alternative. Such an organ may be staffed and directed by officials of both authorities, and ­receive instructions from each of them, in their respective areas of operation. Hence, it may operate as a department of both the Commission and of the eeas. One may hypothesise that such an organ would be viable, at least in terms of i­ nformation exchange. The priorities of the eeas and of dg Echo are not irreconcilable, since the two services need similar information. It may perhaps be more problematic, from a political perspective, to allow such a joint centre to perform the activities that currently characterise the ercc, such as the provision of financial support to the States. eeas representatives would be likely to  participate in the steering organs of the new joint centre, and  one may ­wonder, again, why they should be involved in the adoption of decisions ­relating to the management of the internal aspects of eu civil protection. The High Representative made a less ambitious proposal in 2013, s­ uggesting that the Situation Room should be simply ‘co-located’ with ercc.107 ­Co-locating

106 This information was provided by a member of the eeas’s staff (Interview 7, May 2012), and is confirmed by the interviews performed by Mariya Lazarova, Re-Arranging eu’s ­External Action Competences after the Treaty of Lisbon: The Case of Crisis Response (Central European University – ma Thesis 2014), at 46. 107 eeas Review (n 13 p 3), at 5.

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the two centres in the same building would contribute to address the duplication of resources, and may perhaps limit the issues of functional duplication. If Echo and eeas officials worked side by side, it would be easier to develop collaborative practices such as the production of joint reports. Although the two organs would remain legally distinct and would independently conduct some operations (such as the request to mobilise the States’ resources), they might operate de facto as a single situation room for information-sharing purposes. ­Nonetheless, the Commission would not seem enthusiastic about this ­proposal, ­presumably because it fears it would be monopolised by the eeas; there would seem to be no prospect for the merging of the two centres in the near future. iv

Support for the Diplomatic and Consular Missions of the Member States

After having discussed the consultation and the exchange of information between the eeas and other authorities, it is opportune to turn to the third, and last, kind of cooperation that involves the Service: the provision of material support. As seen in Chapter 2, material support may come in the form of financial assistance, or through the provision of other forms of assistance (notably, logistics). The eeas, unlike the Commission, does not manage the operational lines of the eu budget, and can hardly use money as a lever to influence the conduct of other authorities. However, the Service possesses infrastructures – notably, the Delegations – that it may use to aid other entities and, eventually, to influence their conduct. Article 5(10) of Decision 2010/427 expressly recognises the Delegations’ duty to ‘support’ the Member States ‘in their diplomatic relations and in their role of providing consular protection’. However, the precise content of the eeas’s duty to support the States is not self-evident. Therefore, it is opportune to assess the implementation of Article 5(10) in practice, focusing firstly on the support to diplomatic relations (1), and then on the eeas’s contribution to the protection of eu citizens (2). Support for the Member States in the Conduct of Diplomatic Relations Article 5(10) of Decision 2010/427 stipulates that eu Delegations should p ­ rovide support to the Member States in the conduct of diplomatic relations, and that they should act ‘upon request by Member States. However, this provision does not specify what form the Delegations’ ‘support’ should take.

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Since Article 5(10) affirms that Delegations support the Member States ‘in their diplomatic relations’, one may perhaps suppose that eu missions should provide assistance to the national ones in respect of the political aspects of their relations. For instance, a Delegation may show ‘support’ by delivering to the host country the same message sent by a national embassy, thus ­amplifying the ‘voice’ of a single eu Member.108 In theory, this kind of action may enhance the effectiveness of Europe on the world stage, by reinforcing the message sent by the eu Member. In practice, the relevance of this form of ‘support’ is limited by the nature of eu Decision-making. If a Member State asked a Delegation to uphold an established eu position, the Delegation would be able to give immediate support.109 If, on the contrary, an embassy requested the Delegation to embrace a position that the Union never upheld, the situation would be more complicated. Neither the Delegations nor the eeas can define the Union’s external stance. Hence, after having received a request for support, the eeas would have to propose that the Council Members approve an eu position that confirms the proposal of the requesting embassy. Since such ‘­political’ ­positions are likely to concern the cfsp, the opposition of a single Member State would be sufficient to prevent the Council from adopting a decision and, consequently, would hinder the provision of support at diplomatic level. Besides political support, Delegations may also offer (and do offer, in ­practice) logistical assistance to the Member States. The Delegation may 108 The eu Delegation to India did so in 2011 regarding the case of the Italian marines on trial in that country: after the Italian government requested the ‘involvement’ of its European partners, the eu Delegation made demarches with its Indian counterparts. Q ­ uestion E-002729/2012 to the Commission, subject: ‘vp/hr – Arrest of Italian Marines in India’, available online at accessed 19 December 2015; Commission’s joint answer to questions E-002620/2012, ­subject: ‘Piracy on the High Seas’; and E-002791/2012, subject: ‘Incident in the Indian Ocean’, ­available online at accessed 19 December 2015. See further Federico Forni, ‘Diplomatic Protection in eu Law: What’s New under the Sun?’ (2014) 9 The Hague Journal of Diplomacy 150. 109 For instance, the Council adopted Guidelines on consular matters in February 2000, ­stipulating that European missions should conduct a démarche when a citizen of a Member State is threatened by the death penalty in a third country. Hence, whenever an embassy asks the Delegation to join it in the conduct of a démarche, the latter may arguably do it on the basis of the 2000 Guidelines, without waiting for further instructions. Cf. Guidelines for a common approach to the cooperation between Missions of the Member States and the contacts on consular matters with third countries, Council doc. 6281/00, Part 4.

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­temporarily host the so-called ‘laptop diplomats’ of the Member States.110 While diplomatic missions are permanent representations, there are situations in which States may be unwilling or incapable of maintaining a permanent ­office in a third country. If they nonetheless intend to conduct relations with that country, or look after their citizens, they may send a diplomat on a provisional basis: the so-called ‘laptop diplomat’. The eu Delegation is an excellent location where laptop diplomats may work. Delegations have secure channels of communication with Brussels, and may thus provide the States’ diplomats with up-to-date information. In addition, the physical presence of the laptop diplomat in the premises of the Delegation may simplify the collaboration on dossiers that are of interest for both the Union and the diplomat’s State. Delegations may provide logistical support for laptop diplomats on a r­ outine basis for the eu Members, especially for those that have a small diplomatic network, such as Malta or Luxembourg.111 The eeas has indeed ­established ‘bureaux de passage’ for the Member States in several Delegations (Djibouti, Iceland, Norway, Taiwan, Malawi, Russia, Nicaragua, usa, Singapore, and Philippines) since 2011.112 In addition, the Delegations may provide support in case of crises. For instance, the eu Delegation in Damascus hosted diplomats from four Member States in 2012, after the closure of their embassies.113 Laptop diplomats are, by definition, a temporary solution. The Delegation may facilitate the setup of permanent solutions too, through the co-location of the European and national offices.114 As seen in the case of the eu Situation Room, ‘co-locating’ different offices means placing them in the same premises 110 See further Elisa Baroncini, ‘Le delegazioni dell’Unione Europea dopo il Trattato di Lisbona: struttura, status e funzioni’ (2014) Diritto comunitario e degli scambi internazionali 1. 111 Cf. N. Westcott, Managing Director for Africa, eeas, in uk House of Lords, The Select Committee on the European Union, Inquiry on European External Action Service, 22 January 2013, at 3–4, available at accessed 3 October 2015. 112 eeas 2012 Discharge, Answers by the High Representative/Vice President Catherine Ashton to the Written Questions of the Committee on Budgetary Control (n 56 p 115), para 82. 113 Andrew Gardner, ‘eu Embassy Stays Open as Expulsions Escalate: Member States ­Expel Syrian Ambassadors after Massacre in Houla’. European Voice (30 May 2012); ep ­Directorate-General for External Policies, The Role of the European External Action Service in Consular Protection and Services for eu Citizens: Workshop Summary (2013) accessed 19 December 2015, at 8; Kristi Raik, Serving the Citizens? Consular Role of the eeas Grows in Small Steps (European Policy Centre 2013) accessed 19 December 2015, at 4. 114 See further Baroncini (n 110 p 226).

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(on a permanent basis), without merging them from a legal perspective.115 In the field of diplomacy, co-location brings about significant benefits. It enhances the visibility of the Union and its image of cohesiveness vis-à-vis third parties. It may also foster cooperation, by bringing European diplomats in closer contact. Finally, co-location reduces the costs for all the parties involved, by permitting to avoid duplication of resources.116 The eeas shares offices with national diplomatic services in several countries, including Afghanistan, Azerbaijan, Belarus, Colombia, East Timor, Ethiopia, Iraq, Mauritania and Yemen.117 One may expect co-location to become more widespread in the future, since the economic crisis has generated budget cuts for the foreign services of most eu Member States, many of which have closed several embassies due to financial constraints.118 The eeas has indeed made the assessment of the options for colocation a prior requirement for any new real estate project regarding Delegation buildings.119 Delegations may thus become a ‘logistical hub’, around which the (decreasingly numerous) embassies of the Member States revolve. 2 Support for the Protection of eu Citizens Abroad The eeas’s support to the consular and diplomatic missions of the Member States is not limited to the conduct of diplomatic relations, but extends to the protection of eu citizens. The protection of nationals abroad is a typical activity of consular missions – that is, the offices that States open in the territory 115 See Chapter 5.III.4. 116 For instance, some Delegations share security services with the Member States. European and national missions may also share human resources, such as clerks, and conduct procurement procedures, eeas 2012 Discharge, Answers by the High Representative/Vice President Catherine Ashton to the Written Questions of the Committee on Budgetary Control (n 56 p 115), para 85. 117 Id., para 82. In addition, Delegations and national offices share the same compound in Nigeria and South Sudan. 118 Rosa Balfour and Kristi Raik, ‘Introduction’ in Rosa Balfour and Kristi Raik (eds), The European External Action Service and National Diplomacies (European Policy Center – Finnish Institute of International Affairs 2013), at 7–8. See also Madalina Moraru, ‘Securing ­Consular Protection of the eu Citizens Abroad: What Role for the eu?’ in Inge Govaere and Sara Poli (eds), eu Management of Global Emergencies: Legal Framework for Combating Threats and Crises, Studies in eu External Relations (Brill | Nijhoff 2014), at 153 (­particularly, footnotes 21 and 22). 119 eeas 2013 Discharge: Answers by the European External Action Service to the Written Questions of the Committee on Budgetary Control (2015) accessed 19 December 2015, para 1.

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of other States to provide services to the citizens of the receiving country, and to assist and protect their own citizens.120 Diplomatic missions may perform consular functions, too.121 The protection of a State’s citizens abroad may take two main forms. In the first place, consular protection, which, in turn, has two sides: (i) consular protection proper, i.e. the action of a consul or a diplomat before foreign authorities, in favour of citizens who have been wronged; and (ii) consular assistance, that is, the provision of support to the sending country’s citizens.122 Such provision of assistance is particularly important when the sending country’s citizens are in distress. Diplomatic and consular missions may indeed provide money to citizens who have been robbed, provide legal assistance to those that are arrested, and evacuate their citizens in case of wars and disasters. States give assistance to their citizens abroad also in non-emergency situations, by acting as notary and civil registrars, or by settling disputes among the members of the crews of ships having the nationality of the sending State. The second form of protection of a State’s citizens is the diplomatic one. The International Law Commission’s draft Articles on diplomatic protection define this concept as the invocation by a State of the responsibility of another State for an injury caused by an international wrongful act of the latter State to a natural or legal person that is a national of the former State.123

120 Consular missions perform several functions. A non-exhaustive list is contained in Article 5 of the Vienna Convention on Consular Relations, 24 April 1963, un Treaty Series, vo1. 596, p. 261 (hereinafter: Vienna Convention 1963). One may categorise them in five types: retrieving information, protecting citizens abroad, promoting the economic interest of the sending State, developing the commercial, economic, cultural and scientific relations with the receiving State, providing services to citizens of the receiving State (or of other States). 121 See Article 3(2) of the Vienna Convention on Diplomatic Relations, 18 April 1961, un ­Treaty Series, vo1. 500, p. 95 (hereinafter: Vienna Convention 1961); See also Vienna Convention 1963 (n 120 supra), Article 3. 122 This distinction may be inferred from the catalogue of the functions of consular missions, contained in the Vienna Convention 1963 (n 120 supra), at Article 5(a) (protection) and (e) (­assistance). See also Adolfo Maresca, Le relazioni consolari (Giuffrè 1966); Monica Guzman Zapater, ‘La protecion consular como derecho derivado de la ciudadania’ (2015) 28 Revista de derecho de la Unión europea 259, at 262–263, footnote 14; Simonetta Izzo, ‘La  dimensione esterna della cittadinanza europea: tutela consolare e protezione diplomatica nell’ambito dell’Unione europea’ (2015) Il diritto dell’Unione europea 397, at  406–407. 123 United Nations, 62nd session, Resolution adopted by the General Assembly, 8 January 2008, 62/67, Diplomatic Protection, Annex, Article 1.

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In theory, diplomatic and consular protection are distinct:124 while consular protection may be offered in any situation, diplomatic protection presupposes the commission of an internationally wrongful act on the part of the receiving State.125 In practice, the distinction between the two forms of protection is more complicated:126 whenever a State protests against the arrest of one of its citizens in another country, it arguably exerts consular protection in favour of that citizen, but if that citizen is then condemned to a prison term, in violation of international law and without the possibility of further appeals, the protection may become diplomatic.127 The protection of citizens abroad is traditionally considered as a ‘basic pillar’ of state sovereignty.128 However, the process of globalisation and the increasing frequency of catastrophes worldwide suggests the need for international cooperation mechanisms in this area.129 eu countries have been cooperating in this ambit for decades and, with the establishment of European citizenship, this cooperation gave rise to an ‘entitlement’ of eu citizens.130 Both the Charter and the tfeu recognise that every citizen of the Union is ‘entitled’ to protection by the diplomatic or consular authorities of any Member State, on 124 Cf. Draft Articles on Diplomatic Protection with commentaries 2006, Yearbook of the ­International Law Commission, 2006, vol. ii, Part 2, para 9. 125 Moreover, the two forms of protection have different objectives: consular protection is aimed at defending the interests of individuals, while diplomatic protection defends the interests of the State: the offense to a citizen allegedly constitutes an ‘indirect injury’ to his/her country, cf. Annemarieke Vermeer-Künzli, ‘As If: The Legal Fiction in Diplomatic Protection’ (2007) 18 European Journal of International Law 37. 126 Draft Articles on Diplomatic Protection with commentaries (n 124 supra), para 10. 127 His/her condemnation may indeed amount to the commission of an internationally wrongful act, notably when the domestic remedies are exhausted; hence, the citizen’s State may invoke the responsibility of the other country. 128 Ana Mar Fernández Pasarín, ‘Consular Affairs in the eu: Visa Policy as a Catalyst for Integration?’ (2008) 3 The Hague Journal of Diplomacy 21. 129 Arjen Boin and Mark Rhinard, ‘Managing Transboundary Crises: What Role for the ­European Union’ (2008) 10 International Studies Review 1. 130 Since the ‘entitlement’ of eu citizens to protection is provided for in the Charter of ­Fundamental Rights, one may argue that it constitutes a ‘right’. However, some commentators argue that primary law imposes only an obligation of non-discrimination on eu Members. See, in particular, annex to European Scrutiny Committee, Sixteenth Report (House of Commons 2007) accessed 19 December 2015: Cf. Forni (n 108 p 225), at 162–163; Rosanna La Rosa, ‘La protezione diplomatica nell’Unione europea: un esempio di evoluzione delle norme internazionali in materia’ (2009) 4 Studi sull’integrazione europea 133, at 150–151.

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the same conditions as the nationals of that State, in the territory of a third country in which the citizen’s State is not represented (Article 46 of the Charter, Articles 20 and 23 tfeu).131 The scope of the primary law provisions on the protection of eu citizens abroad is unclear. Since they refer to protection ‘by the diplomatic or consular authorities’ of the Member States, one may argue that they request both diplomatic and consular protection. Alternatively, one may suppose that they regulate consular protection only (which is, in fact, ensured by both diplomatic and consular authorities). The former interpretation would seem more ­appropriate, as testified by the title of Article 46 of the Charter, i.e. ‘Diplomatic and consular protection’, and by the German version of Article 23 tfeu, which mentions ‘diplomatic and consular protection’ (‘diplomatischen und konsularischen Schutz’). In any event, the legislature has never implemented diplomatic protection at the level of secondary law; even Consular protection has been implemented unevenly. The main instruments in this area are Decision 95/553132 and ­Directive 2015/637133 (the latter entered into force in 2015 and will repeal Decision 95/553 with effect from May 2018).134 Article 4 of Decision 95/552 and Article 9 of Directive 2015/637 envisage cooperation in two principal fields of consular assistance: in normal times, such as the illness, death, or arrest of an eu citizen, and the commission of a crime against him/her; and in emergency situations, especially those that require the repatriation of eu citizens (e.g. natural disasters and wars).

131 One may wonder whether these provisions are entirely compatible with international  law, since it is generally assumed that, under general international law, States have the right to assist their own citizens (and not the citizens of other States). A discussion of this issue,  at any rate, is not indispensable for the purpose of the present analysis. One  may  note, moreover, that no third country seems to have ever opposed the exercise of protection on the basis of Article 23 tfeu (or its predecessors), see Moraru (n 118 p 227), at 174. 132 Decision of the Representatives of the Governments of the Member States 95/553/ec, oj 1995 L 314/73. Another piece of legislation, the Decision of the Representatives of the Governments of the Member States 96/409/cfsp, meeting within the Council of 25 June 1996, regulates a specific aspect of consular assistance, i.e the creation of a common format emergency travel document for issue by Member States to citizens of the Union in places where those citizens’ Member State of origin has no permanent diplomatic or consular representation. 133 Council Directive 2015/637/eu, oj 2015 L 106/1. 134 This is also the date by which the Member States must transpose the Directive.

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These instruments, on the other hand, do not expressly address consular protection proper, i.e. the action before foreign authorities.135 This omission may depend on the Member States’ tendency to consider this activity ‘as part of the cfsp’. The Council has regulated cooperation in the field of consular protection proper through non-binding cfsp guidelines in 2000.136 The 2000 Guidelines and Directive 2015/637 are further complemented by non-binding guidelines on consular protection adopted by the Council in 2010.137 Notwithstanding the lacunae in the arrangements regarding the protection of eu citizens, it emerges clearly from the instruments mentioned above that the missions of eu Members and of the Union must cooperate. The 2000 Guidelines stipulate that eu Members should monitor the respect for eu ­citizens’ rights in third States, and, in case of a violation, they may conduct a ‘common eu demarche’ to the authority of the receiving country.138 The content of Directive 2015/637 and of the 2010 Guidelines is more articulate. The principle, enshrined in Article 10 of the Directive, is that Member States’ diplomatic and consular authorities shall ‘closely cooperate with one another’. This cooperation is normally implemented through ‘local cooperation meetings’ of the States’ consular and diplomatic missions, which include a regular exchange of information on matters relevant to unrepresented citizens.139 The local cooperation meetings are normally chaired by a State’s consular or diplomatic official, defined by the representatives of eu States present in the country (i.e. not necessarily by the Rotating Presidency). Such a pragmatic solution appears logical, considering that eu Members are not equally represented in the different countries. The Directive and the 2010 Guidelines provide for reinforced cooperation in the context of emergencies. The States’ representations should inform each other about their crisis preparedness arrangements, and should formulate them by taking into account unrepresented citizens. Local cooperation 135 In principle, there is the possibility that Directive 2015/637 (n 133 p 230) may apply to consular protection proper, since the list of situations contained in Article 9 of the Directive is not exhaustive. Moreover, the preamble of the Directive states that, since the protection needed depends on the factual situation, ‘consular protection should not be limited to the situations specifically mentioned’. 136 Guidelines for a common approach to the cooperation between Missions of the Member States and the contacts on consular matters with third countries, Council doc. 6281/00. 137 Guidelines on Consular Protection of eu Citizens in Third Countries, Council doc. 15613/10. 138 In diplomatic parlance, démarches consist of messages that the sending country transmits, via the diplomatic mission, to the receiving State, to persuade, inform, protest or object to actions by its government, see text to n 66 p 251. 139 See Guidelines on Consular Protection of eu Citizens (n 137 supra), paras 9.1–9.12.

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meetings should then be used to review the effectiveness of the Member States’ crisis preparedness plans.140 The Guidelines on Consular Protection adopted in 2010 specify that the States’ missions should decide amongst themselves how they will share responsibilities for ensuring that nationals of all Member States are covered by contingency plans.141 As a general rule, responsibility should fall on the mission of a single eu Member, the so-called ‘lead State’. The Lead State should include unrepresented citizens in its crisis preparedness plans, and should support the other Member States’ missions, notably by making situation assessments, and by providing a processing centre if an evacuation were necessary.142 To facilitate the cooperation during emergencies, eu States should exchange information, not only through Coreu, but also via Consular on-Line (so-called CoOl): a website for exchanging consular information, which functions as a platform for eu Member States’ representatives to post and receive developments in real time about citizens in crisis areas.143 This instrument has allegedly proved useful in practice – for instance, during the evacuation of eu citizens from Libya in 2011.144 The provision of consular assistance may be further facilitated through the use of other resources: (i) national officials, since a Member State may decide to send a consular and medical support team (consisting of staff with experience of consular work) to facilitate the work of its mission, by providing reception facilities and psychological support for its citizens;145 (ii) crisis management (csdp) structures, which may be employed to mobilise military resources (such as ships), especially to evacuate eu citizens; and (iii) civil ­protection resources, through the Union Civil Protection Mechanism (ucpm). This instrument, contained in Decision 2013/1313, regulates the cooperation between eu Members146 in civil protection matters, with regard to the 140 Id., para 9.5. 141 Id., para 7.1. 142 Political and Security Committee, Lead State Concept, Council doc. 10715/07, at 3. See also Directive 2015/637 (n 133 p 230), Article 13(3). 143 Bicchi (n 70 p 214), at 92. 144 Raik (n 113 p 226), at 2. See also Moraru (n 118 p 227), at 166. 145 Other countries may decide to complement any such team, by entering into the necessary arrangements with the aforesaid Member State. See Guidelines on Consular Protection of eu Citizens (n 137 p 231), para 13. Moreover, the Commission may send teams, composed of officials of eu Members, on the spot, in order to support a common assessment of the situation, to provide technical advice and to facilitate coordination, see Decision 1313/2013 (n 83 p 77), Article 16(3)(a)(ii). 146 The Union Civil Protection Mechanism is open to non-eu Members of the European Economic Area, as well as acceding countries, candidate countries and potential candidates, see Article 28 of Decision 1313/2013 (n 83 p 77).

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­ anagement of disasters within and outside the Union. The Mechanism has m been used for consular assistance in several occasions. For instance, a Swedish plane evacuated six eu Citizens after the attacks in Mumbai (2008), a Hungarian plane evacuated about 90 eu citizens (including 60 non-Hungarian ones) from Libya (2011), and a Luxembourgish plane evacuated British nationals from Sierra Leone (2015).147 Requests for activating the ucpm may come from either the State whose nationals require assistance, or by the Lead State.148 It emerges from the analysis that the protection of eu citizens remains primarily a responsibility of the States. Each eu country must protect its nationals. If the latter are not represented by the missions of their States, they may rely on the missions of other eu countries. This would seem to explain why Article 5(10) of Decision 2010/427 stipulates that the eu Delegations are only to ‘support’ the Member States, upon their request, in ‘their role’ of providing consular protection to European citizens. Directive 2015/637 and the soft law instruments adopted in this area would seem to give a ‘pragmatic and limited supporting role’149 to the eeas and its Delegations. Nonetheless, the ‘supporting’ role of Delegations may be wider than it ­appears at first sight. In the first place, Delegations may facilitate the exchange of information between Member States’ embassies and consulates, consistently with their general mandate of favouring information exchange between ­European diplomatic missions.150 They should, in particular, share information on local practices that have an impact on consular protection,151 and should be involved in information-sharing during emergencies, through CoOL and e­ mergency radio networks among European representatives.152 The Delegation may also function as a bridge between civil protection authorities (­coordinated by the Commission under the ucpm) and diplomatic representations, since the eeas should be informed by the Commission upon the ­activation of the Civil Protection Mechanism.153

147 See the website of the Luxembourgish government, ‘Flight organised by the government of Luxembourg in cooperation with Luxembourg Air Rescue (lar) will repatriate a ­British national’, accessed 21 December 2015. 148 See Directive 2015/637 (n 133 p 230), Article 13(4); Decision 1313/2013 (n 83 p 77), Article 16(7). 149 See Lead State Concept (n 142 p 232), at 4. 150 Directive 2015/637 (n 133 p 230), Article 11. 151 Guidelines on Consular Protection of eu Citizens (n 137 p 231), para 9.10. 152 Id., annex i, para 4. 153 Decision 1313/2013 (n 83 p 77), Article 16(4). See also Commission Decision 2014/762/eu, oj 2014 L 320/1, Article 42.

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Secondly, Delegations may provide logical support to the national experts,154 by providing for office space, temporary accommodation and use of transport resources.155 By doing so, Delegations may arguably render cooperation easier from a practical and financial perspective. For instance, during the Gaza crisis in 2009, 100 people were evacuated in armoured buses with the support of the (then Commission) Delegation.156 Finally, Delegations may act as the ‘lead’ actor in case of crises.157 As noted above, a Member State should take the lead during emergencies, at least in theory. In practice, however, the situation would seem to be partially different. Delegations may indeed serve as a focal point in a crisis situation. In 2011, for instance, the eu Delegation in Tokyo took the lead during the Fukushima nuclear disaster.158 One may expect eu Delegations to play an increasing role in this ambit, since the protection of eu citizens at large (including unrepresented ones) is likely to be one of their core interests (whereas the missions of eu Members probably focus on the protection of their nationals). In addition, each Delegation may take stock of the experience acquired by Delegations in other countries: whereas an eu State may be leading in a few countries, ­Delegations are involved in the coordination of European diplomacy throughout the globe. One may wonder whether eu Delegations’ role should remain confined to the support for eu Member States’ missions, or if it may extend to the direct assistance to European citizens. The Union has developed some margin of autonomous intervention in the field of diplomatic protection, by virtue of its competence in external relations. One may argue that, if the eu can undertake all the measures capable of assuring the correct application of an agreement, it can also claim the injuries produced by the treaty violation,159 including the invocation of the responsibility of other States in case of violation of eu citizens’ rights. The eu has indeed brought action against third States in several occasions, to defend the ­interests of European fishermen who were damaged by the infringement of a­ greements 154 Guidelines on Consular Protection of eu Citizens (n 137 p 231), paras 4 and 13.3; Decision 1313/2013 (n 83 p 77), Article 16(5). 155 Lead State Concept (n 142 p 232), at 4. 156 See Ana Mar Fernández Pasarín, ‘Towards an eu Consular Policy?’ in Jozef Bátora and David Spence (eds), The European External Action Service: European Diplomacy Post-­ Westphalia (Palgrave Macmillan 2015). 157 Directive 2015/637 (n 133 p 230), Article 12. 158 ep Directorate-General for External Policies (n 113 p 226), at 6. 159 Forni (n 108 p 225), at 166; see also AG Jacobs in Racke v Hauptzollamt Mainz, Case C-162/96, eu:c:1997:582, para 50.

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in which the Union is a contracting party.160 Some fishery a­greements ­concluded by the eu foresee, in particular, the performance of diplomatic protection by Union Delegations, in the form of actions before third countries’ authorities.161 Moreover, Delegations play a role in the field of consular protection proper, since they bring démarches before foreign authorities in favour of citizens who have been wronged, following the process of coordination with the Member States (which is discussed in the next chapter).162 The Delegations’ role in the consular assistance, on the other hand, is almost non-existent.163 The Report of Michel Barnier to the European Council of 2006 hypothesised the creation of European consulates ‘around the existing Commission delegations’.164 The setting up of common offices would indeed ‘help to streamline functions and save on the fixed costs of the structures of Member States’ diplomatic and consular networks’, as noted in the Commission Green Paper on Diplomatic and consular protection of Union citizens in third countries of 2006.165 Some Member States, however, do not agree with this view. The uk, in particular, expressed in 2006 its concern about ‘the suggestion that, in the longer term, the eu should provide consular assistance through Commission delegations’.166 The uk government lists three possible sources of concern. First, international law allows States, not international organisations, to provide consular assistance. This problem, however, is not insurmountable, since the eu may enter into ad hoc arrangements with third countries. As the British government itself notes, receiving states are generally content for 160 Cf. Forni (n 108 p 225), at 169. 161 In the Odigitria case, the Court of First Instance recognised that a fishery agreement placed the eu Delegation under a ‘duty to provide diplomatic protection’ to eu fishermen see Odigitria v Council and Commission, T-572/93, eu:t:1995:131, paras 77 and 85. 162 See Chapter 6.I.1.3. 163 See, to that effect, Pia Kerres and Ramses A Wessel, Apples and Oranges? Comparing the European Union Delegations to National Embassies (cleer 2015). 164 Michel Barnier, For a European civil protection force: Europe aid, 2006, accessed 18 December 2015, at 24. 165 com(2006) 712, para 4.1. Of course, increased efficiency in the provision of assistance to eu citizens would not be sufficient if eu institutions did not fill the ‘information gap’ that characterises this area, see Massimo Fragola, ‘Protezione diplomatica dei cittadini e politica estera dell’Unione europea’ in aavv (ed), Il Trattato di Lisbona: due anni di ­applicazione – Atti della giornata di studio in ricordo di Francesco Caruso (Editoriale ­scientifica 2013). 166 European Scrutiny Committee (n 130 p 229), para 4.8.

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­assistance to be provided by eu Member States to citizens of other eu countries.167 Probably they may be equally sympathetic about the role of the eu. The second (alleged) problem is the lack of expertise of eu officials. This issue is also of relative importance. eu officials, like national ones, may be trained for this purpose. What is more, the secondment of national officials to the eeas may provide the eu with consular expertise at a reasonable cost. Thirdly, the Member States’ nationals allegedly ‘expect consular assistance from consular staff of their own nationality’.168 This argument, albeit prima facie not unreasonable, is not entirely convincing, since it would not seem to be based on any evidence. One may even argue that most European citizens are likely to prefer the provision of assistance by the eu Delegations over the protection offered by other States. At any rate, the British position has prevailed so far, and it is unclear whether any development is to be expected in the near future.

Conclusion of Chapter 5

The process of coordination, by definition, concerns a plurality of policies and of decision-makers. Cooperation, therefore, is indispensable if one is to ensure coordination. This is the case, in particular, of the eeas (a body without decision-making powers) that should coordinate other authorities’ activities from ‘below’, i.e. at the administrative level. The assessment of the eeas’s cooperation with other authorities suggests that the Service is placed at the centre of a network, which it may use to strengthen the coherence of foreign policy. To be sure, the cooperation between the eeas and other authorities is not a panacea to ensure coherence on the most divisive issues in European ­foreign policy. For instance, one may doubt whether eu Members are willing to share all their intelligence, or the information retrieved through diplomatic missions, solely because there are ‘information hubs’ within the Service. On the other hand, the cooperation arrangements between the Service and other authorities are likely to foster coherence in the areas where the interests and policies of the different actors are not completely at odds and may thus foster coordination in day-to-day policy management. For example, the Service may prompt Commission services to drop policy proposals at odds with the eu strategy, by using a procedure such as the interservice consultation, which discourages objections.

167 European Scrutiny Committee (n 130 p 229), para 5.1. 168 Id., para 4.2.

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In the long run, this cooperation may perhaps contribute to increase trust among the actors of the eeas’s network, and to change their perception of their role and interests, thus reducing the divisions and conflicts among policy-makers in European foreign affairs. The effectiveness of cooperation as a means to ensure coordination is thus dependent on the eeas’s ability to elicit trust, by taking the initiative and showing the advantages of a ‘joined-up approach’.

chapter 6

Integration with Other Authorities The coordination of policy management, as argued in Chapter 2, is ensured not only through cooperation, but also through integration between coordinating and coordinated authorities. Given its status as a ‘service’ that assists other entities, the eeas is quite naturally integrated into the administration of other bodies. Decision 2010/427 makes this clear, by stipulating that the eeas ‘assists’ and ‘supports’ the High Representative, the Commission and, more or less indirectly, intergovernmental organs. What is not apparent is how, legally speaking, the Service is to ­integrate into the administration of other entities, and to what extent the eeas may use its apparently subordinate role to coordinate foreign affairs (Section i). The integration between the eeas and other authorities may take another, less obvious, form: the Service may absorb, in its own structure, the administrations of other authorities. This second genre of integration, in principle, should enable the Service to exert authority over other administrative bodies, which it may use to foster coordination. However, one may wonder how the eeas’s authority over other administrations may be coupled with its own subordination to political organs, and with the distribution of power set in the Treaties (Section ii). I

Integration of the eeas in the Administration of Other Authorities

The capacity to integrate within the administrations of other bodies is one of the most peculiar features of the eeas. The Service may indeed operate contemporarily in different institutional frameworks, thereby contributing to steer the conduct of separate authorities and coordinate their actions. On the one hand, the Service takes part in the activities of intergovernmental organs, thereby fostering coherence among the Member States, and between them and Union policies (1). On the other hand, the eeas participates in the Commission structure, operating like a service of the institution, thus contributing to horizontal coherence (2). 1 Integration in Intergovernmental Organs The work of intergovernmental bodies is fundamental for the promotion of coherence, among the positions of eu States, between them and the action © koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004323612_010

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of the Union, as well as among the different policies of the eu. The next paragraphs investigate the eeas’s activity in the intergovernmental framework, its coordinating potential, and the legal problems it raises. The study begins by focussing on the eeas’s assistance to the President of the Foreign Affairs Council (i.e. the hr). Then, the attention turns to the eeas’s role in the Council preparatory bodies, and to the peculiar arrangements that define it. The study of the eeas’s integration in the intergovernmental framework is concluded through an assessment of its role in a sui generis ‘body’: the meeting of the diplomats of eu Members in third countries. 1.1 Support for the fac Presidency The role of the eeas in the Council is largely a corollary of two primary law provisions. Pursuant to Article 27(3) teu, the Service assists the High Representative; according to Article 18(3) teu, the hr presides over the Foreign ­Affairs Council. Article 2(1) of Decision 2010/427 explicitly confirms that the eeas ­assists the hr ‘in his/her capacity as President of the Foreign Affairs Council’. This assistance is likely to enhance the coherence-making potential of the Service, in three ways. In the first place, the eeas may facilitate the adoption of legislative acts on external relations, in cfsp and non-cfsp areas alike. The Council Presidency has the capacity to facilitate the attainment of consensus among the institution’s members, by directing the discussions and proposing compromise texts on which the Member States’ positions may converge.1 In the performance of this task, the Presidency is normally aided by the Council General Secretariat. The assistance to the Presidency has indeed become one of the main activities of the Secretariat, through which it exerts significant ­influence on policy-making.2 Does the eeas’s ability to support the hr mean that it should substitute for the General Secretariat in the task of assisting the fac President? At first sight, this would not seem to be the case. Article 2(1) of Decision 2010/427 expressly acknowledges that the eeas’s support for the fac President is without prejudice to the ‘normal tasks’ of the General Secretariat. However, the notion of the Secretariat’s ‘normal tasks’ is not entirely clear.3 The Secretariat presumably 1 Cf. Article 20 of the Council Rules of Procedure (n 104 p 84). 2 Cf. Jean-Paul Jacqué, ‘Le Conseil’ in aavv (ed), Le Parlement européen. Le Conseil. La Commission. La Cour des comptes. Le Comité économique et social. Le Comité des régions. La Banque européenne d’investissement. Le Fonds européen d’investissement (Editions de l’Université de Bruxelles 2000), at 146; Ana E Juncos and Karolina Pomorska, ‘Invisible and Unaccountable? National Representatives and Council Officials in eu Foreign Policy’ (2011) 18 Journal of ­European Public Policy 1096, at 1103. Christiansen (n 77 p 154); Christiansen and Vanhoonacker (n 77 p 154); Dijkstra, ‘Explaining variation in the role of the eu Council Secretariat’ (n 77 p 154). 3 Cf. Blockmans and Laatsit (n 79 p 31), at 143.

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r­etains the monopoly on the performance of its administrative functions, which are indubitably ‘normal’, since they are recognised by the Council Rules of Procedure. For instance, one may hypothesise that the Secretariat continues to draw up the minutes of each Council meeting, as required by Article 13 of the Rules of Procedure. The political functions of the Secretariat, in any event, seem less ‘normal’, since they evolved in the practice, and are not clearly defined in the Rules of Procedure.4 Hence, one cannot exclude a priori that the eeas may substitute for the General Secretariat in the task of giving ‘political’ support to the fac Presidency. It is opportune to point out, moreover, that the Service seems better placed to assist the fac President, given its close relationship with the hr and its expertise in foreign affairs. The eeas is also likely to have a broader view of eu’s foreign affairs, given its integration in the Commission. Therefore, the Service may contemporarily foster consensus within the Council, and promote compromise texts that foster synergy with the Commission’s initiatives (thereby contributing to both vertical and horizontal coherence). This suggests that a systemic interpretation of Articles 18(3) (hr mandate as fac President), 27(3) teu (eeas’s mandate as hr assistant), and Article 21(3) teu (principle of external action coherence) indicates that the Service should substitute for the Council Secretariat in its task of ‘political’ assistance to the hr.5 The problem is that the General Secretariat, at the time of the creation of the eeas, retained several posts for external policy tasks, and maintains two directorates tasked with ‘Foreign Affairs Council Support’.6 This may generate duplications between the work of the eeas and that of the Secretariat, and may hamper the Service’s coordinating potential. As requested by the High Representative in 2013, a ­re-allocation of human resources, through the downsizing of the ­General Secretariat’s external relations departments, would seem opportune.7 The second coherence-making activity that the eeas may conduct by assisting the fac President lies in the proposal of soft law instruments, which may steer the conduct of the other bodies. The Council routinely uses 4 Article 23, for example, stipulates that the Secretariat is generally ‘involved in organising, coordinating and ensuring the coherence of the Council’s work’ and assists the Presidency ‘in seeking solutions’. 5 On the contrary, the Council legal service argues that the General Secretariat ‘role is set out in the Treaties (Art. 240(2) tfeu) and the Council RoP [Rules of Procedure] (Art. 23): it s­ upports the Council as a whole, including of course the Presidency’, See ‘eeas Review – indications relating to the legal and institutional issues raised by the recommendations’, Council doc. 14458/13, para 20. 6 Directorates 1 and 2 of Directorate-General C. 7 See eeas Review (n 13 p 3), at 10.

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non-binding instruments to informally direct eu foreign affairs. This is the case, in particular, of the Council Conclusions and Strategies, which often contain provisions of a requesting nature, calling upon other Union organs or the Member States to take certain actions. These instruments may thus serve as a political starting point for the development, at a political level, of more concrete action in a certain area.8 Another instrument, called ‘Guidelines’, may have an impact on the administrative practice, since it may contain references for the conduct of the staff of the Union and of its Members.9 The eeas, via the hr/fac President, may propose the adoption of Con­ clusions, Strategies, and Guidelines, place them on the agenda and direct the discussion, to make sure that a draft is effectively debated by the institution’s members. The High Representative explicitly acknowledged in 2013 that the Service produces ‘draft Council conclusions on specific and topical issues’.10 By drafting the Council’s instruments, the eeas may contribute to set the political priorities of the entire external action. The Service has done so, in particular, in the aftermath of the crisis in North Africa in 2011, with the ‘Strategy for Security and Development in the Sahel’,11 approved by the Council in March 2011.12 This strategy is a policy document, which is not meant to produce legal effects, but which defines a framework for the coordination of the eu’s engagement in the region ‘with the common objective of reinforcing security and development’. An even greater contribution to external action coherence may come through the drafting of all-encompassing ‘Global Strategy’ of the Union. The European Council requested High Representative Mogherini to prepare such a document by June 2016,13 to update (or replace) the European Security Strategy adopted in 2003. It is not clear, at the time of writing, whether such a document will be adopted, and which form it will take.14 One may assume that, 8 9

10 11

12 13 14

Cf. Senden (n 54 p 150), at 195–196. For instance, the guidelines on the promotion of human rights may provide for ‘political lines to officials of eu institutions and eu Member States’. See, for instance, the Guidelines on the Promotion and Protection of freedom of Religion or Belief (n 39 p 206), para 8. eeas Review (n 13 p 3), at 8. Formally speaking, this document was proposed by the High Representative and the Commission (document sec(2011)331/F1, not published in oj), but it was drafted by the eeas on both the hr and the Commission sides (on the eeas’s role within the Commission see Chapter 6.I.2.1). The text of the strategy is available at the eeas website accessed 18 November 2015. Council doc. 8030/11. European Council meeting (25 and 26 June 2015), Conclusions, euco 22/15, para 10(b). At any rate, the hr published a strategic review document in June 2015, calling for a ‘­comprehensive and consistent eu global strategy’, See High Representative, ‘The

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after having been discussed in the framework of Council preparatory bodies, and perhaps approved by the Foreign Affairs Council, it will be adopted by the European Council. It might be expected, at any rate, that through this document the High Representative (and her Service) may define the challenges to eu’s interests, and the priority objectives that the Union must pursue in all its external actions.15 The third main coherence-making activity of the eeas, in its capacity as ­assistant of the fac President, consists in facilitating the adoption of a specific category of cfsp instruments – i.e. international statements – by combining the prerogatives of the fac President and of the cfsp executive. When the hr (or the Commission) submits a proposal for a Council act, the institution normally discusses and approves it through an oral procedure. However, on a request of its Presidency, the Council may act by a simplified written procedure.16 This is the case, in particular, in the field of the cfsp, since the Union must swiftly react to political crises in other parts of the world.17 Article 12(2)(d) of the Rules of Procedure contemplates a specific formula for this purpose, called ‘Coreu silence procedure’.18 The procedure begins when the Council Presidency, i.e. the hr/eeas,19 ­circulates a cfsp proposal via Coreu and sets a deadline, before the expiry of which the Member States may object. Given the need to react quickly to international events, the deadline can be as short as within two hours of the

15 16 17

18 19

­European Union in a changing global environment A more connected, contested and complex world’, accessed 17 November 2015. See Sven Biscop, Global and Operational: A New Strategy for eu Foreign and Security Policy (Istituto Affari Internazionali 2015)accessed 19 December 2015, at 8. Cf. Article 12(1) of the Council Rules of Procedure (n 104 p 84). In the absence of permanent bodies meeting on a continuous basis, the ‘simplified’ ­procedure may be described as the oil that allows the cfsp machinery to respond relatively swiftly to international developments, see Tannelie Blom and Sophie Vanhoonacker, The European External Action Service (eeas), the New Kid on the Block (Paper prepared for  the ecpr General Conference at the University of Glasgow, 3–6 September 2014) accessed 19 December 2015, at 6. On the Coreu network, see Chapter 5.III.1. The references to the Presidency in the Council Rules of Procedure (n 104 p 84) indeed apply to any person chairing one of the Council configurations (not to the Country having the Council presidency at a given time), as specified in Article 1(5). See also Robert Bottner and Ramses A Wessel, ‘Article 30 [Initiatives in cfsp; Extraordinary Council Meetings]’ in Hermann-Josef Blanke and Stelio Mangiameli (eds), The Treaty on European Union (teu): a Commentary (Springer 2013), at 1048.

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s­ending of the text.20 Having to rapidly respond to Brussels’ proposals, the Member States tend to exercise a certain ‘self-restriction’: they normally do not ask for changes to the relatively ‘minor’ aspects of the proposed texts.21 The Coreu silence procedure thus appears to have a ‘built-in bias against objections’, which makes it a useful instrument for coming to an agreement.22 Being able to introduce cfsp proposals (thanks to the hr’s power of initiative) and to launch silent procedures (through the hr’s role as fac President), the eeas may arguably use Coreu to facilitate the attainment of consensus, thus fostering coherence between the positions of eu Members and ultimately vertical coherence. One should acknowledge, at any rate, that the Coreu silence procedure has two limits. To begin with, its substantive scope is not unrestrained. The Council Rules of Procedure stipulate that the use of the Coreu silence procedure should be circumscribed to certain cfsp acts,23 notably ‘statements’24 (that is, informal texts intended to be made public).25 This limit, on the other hand, .

20 21 22

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Bicchi and Carta (n 67 p 213), at 476. Ibid. Federica Bicchi, ‘The eu as a Community of Practice: Foreign Policy Communications in the Coreu Network’ in Helene Sjursen (ed), The eu’s Common Foreign and Security Policy: The Quest for Democracy (Routledge 2012), at 56–57. More precisely, a footnote to Article 12(2)(d) of the Council Rules of Procedure (n 104 p 84) stipulates that ‘the Coreu network must be used in accordance with the Council ­conclusions of 12 June 1995’, see Council Conclusions, 12 June 1995, doc. 7896/95. The latter document stresses that the Coreu network cannot be used ‘to set out or deal with Community ­subjects’ or to prepare policy documents. The Council should indeed avoid the development of ‘parallel’ channels for dealing with files: ‘texts intended for the Council must be prepared by working parties’. Council Conclusions, 12 June 1995, doc. 7896/9, para 13. The Conclusions of 12 June 1995 and the practice distinguish between ‘statements’ proper and ‘declarations’, which are also texts setting out the eu’s position. The difference between statements and declarations is that the former should be approved by Coreper or through Coreu, while the latter are normally approved by the Council, even if ‘in exceptional cases, for example outside the Council’s normal working periods, ‘Declarations by the European Union’ may be ­approved via Coreu’ (see Council Conclusions, 12 June 1995, doc. 7896/95, annex ‘Common Positions – Joint Actions – Statements: Use and detailed procedures for adoption’, para 14, footnote 16). Given the similarity between these instruments, the possibility that they may be adopted via Coreu, and the propensity of the Member States to make use of Coreu in practice (see infra), this paragraph addresses both statements and declarations at once, using only the word ‘statements’ for ease of presentation. See Council Conclusions, 12 June 1995, doc. 7896/95, annex ‘Common Positions – Joint Actions – Statements Use and detailed procedures for adoption’, para 6.

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should not be overemphasised. Notwithstanding their informal character, cfsp statements may have a ‘very significant’ political impact, as acknowledged by the Council, and may even ‘have more political weight than formal texts’.26 Indeed, the adoption of statements has always been at the core of the cfsp and the focus of changes made in its framework.27 The other limit of the Coreu silence procedure seems much more relevant: this mechanism can hardly be used in respect of the most controversial issues. The Member States are perhaps willing to accept, more or less passively, the eeas’s proposals on minor aspects of the cfsp, but they are likely to object to initiatives that manifestly contradict their own policies. This kind of discussion cannot be performed through a silence procedure, but must take place in the Council proper. 1.2 Chairmanship of Council Preparatory Bodies The eeas integrates into the Council (and promotes coherence), not only by assisting its Presidency, but also by chairing several of its preparatory bodies. As is well known, the Council is assisted by diverse organs. The most important one is the Committee of Permanent Representatives (Coreper), which is composed of the diplomatic representatives of the Member States at ambassadorial level, and is responsible for preparing the work of the Council (Article 16(7) teu and Article 240 tfeu). Coreper is ‘an auxiliary body’ of the Council, for which it carries out preparation and implementation work.28 Nonetheless, it plays a crucial role, since it normally examines in advance all items on the agenda for a Council meeting.29 This organ may thus ‘ensure consistency of the European Union’s policies and actions’30 and foster the reaching of compromises before the meetings of Council members.31 Coreper is assisted, in turn, by other bodies.32 The Political and Security Committee – an organ composed of State representatives at senior or 26 27

28 29 30 31 32

Id., para 7. Tina Vončina, ‘Speaking with One Voice: Statements and Declarations as an Instrument of the eu’s Common Foreign and Security Policy’ (2001) 16 European Foreign Affairs Review 169, at 170. Commission v Council (fao) (n 46 p 68), para 26. Coreper also adopts procedural decisions, in cases provided for in the Council’s Rules of Procedure. Council Rules of Procedure (n 104 p 84), Art. 19(2). Id., Art. 19(1). See further Paolo Ponzano in Vlad Constantinesco and Denys Simon (eds), Le Coreper dans tous ses États (Presses universitaires de Strasbourg 2001), at 85. As a general rule, Coreper decides upon ‘political’ issues, while preparatory bodies ­address ‘technical’ ones, but ‘when one delves deeper into the way the Council functions, the distinction between technical and political issues is rarely so clear-cut’, Eves ­Fouilleux,

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­ambassadorial level – is the pivotal body of the cfsp. Pursuant to Article 38 teu, the Committee monitors the international situation in the areas covered by the cfsp, as well as the implementation of agreed policies. Decision 2001/78/cfsp further specifies that the Political and Security Committee ensures political control and strategic direction of military crisis-management operations.33 The psc also contributes to the definition of policies by delivering opinions to the Council,34 and by coordinating, supervising, and monitoring discussions on cfsp issues in various Working Parties. The other bodies that assist Coreper – which are also composed of representatives of the Member States – are set up by, or with the approval of, Coreper itself.35 They carry out preparatory work36 to iron out technical difficulties raised by the proposal under discussion, unless there are substantive or institutional problems that require discussion in Coreper.37 This means, in practice, that the Committees normally represent the first procedural step for discussion within the Council structures. The proposals coming from the Commission (in the non-cfsp area), and from the High Representative or the Member States (in respect of the cfsp), normally transit through the Committees and are later moved up to Coreper to sanction the agreement reached within the Committees – or to solve possible disagreements. The statistics on this issue vary considerably. Depending on the sample chosen, the period of analysis and the topic under investigation, the analyses conducted in the past suggest that Coreper and preparatory bodies may adopt de facto 50% to 90% of Council decisions.38 There are currently 38 preparatory bodies in the foreign affairs area, variously termed as ‘Committee’, ‘Working Party’, or ‘Group’. These bodies may be Jacques de Maillard and Andy Smith, ‘Technical or Political? The Working Groups of the eu Council of Ministers’ (2005) 12 Journal of European Public Policy 609, at 612. 33 Council Decision 2001/78 setting up the Political and Security Committee, oj 2001 L 027/1. 34 See also Article 222(3) tfeu. 35 Council Rules of Procedure (n 104 p 84), Art. 19(3). See, for example, Council doc. 5603/04, ‘Monitoring and evaluation of restrictive measures (sanctions) in the framework of cfsp – Establishment of a “Sanctions” formation of the Foreign Relations Counsellors Working party (relex/Sanctions)’, 22 January 2004. It is worth noting that the tfeu provides for the creation of some Committees, see Articles 71 (internal security), 99 (transport) 134 (economic and financial committee), 150 (employment), 160 (social protection), 207(3) (trade negotiation), 218(4) (negotiation of international agreements). 36 Council Rules of Procedure (n 104 p 84), Art. 19(3). 37 Council, Handbook of the Presidency of the Council of the European Union (2011), at 32. 38 See further Frank M Häge, ‘Who Decides in the Council of the European Union?’ (2008) 46 Journal of Common Market Studies 533.

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c­ ategorised in five clusters, namely39 (i) bodies in the area of trade;40 (ii) ­bodies in the areas of development cooperation and humanitarian aid;41 (iii) geographic bodies (i.e. bodies dealing with a specific region);42 (iv) csdp-related bodies, including those that plan and direct crisis management operations (notably, the Military Committee);43 and (v) so-called ‘horizontal preparatory bodies’, that is, bodies working on diverse issues (the institutional aspects of the cfsp,44 specific themes, like human rights or non-proliferation,45 relations with international organisations,46 the eu’s position regarding international law issues,47 and consular affairs).48 The work of Coreper, psc, and preparatory bodies is facilitated by the chairpersons. Like the Council Presidency, they draft the agenda of their bodies, ensure that the discussions are conducted smoothly, and introduce policy documents for discussion. The chairpersons of Coreper, psc, and preparatory bodies may also ascertain the positions of the members of their organs and decide – if there is sufficient convergence of views – to pass the dossier to 39

40

41

42

43

44 45

46 47 48

The Council lists four categories, since it places together the Committees on development and those on trade. Although there are overlapping issues, it would seem possible to draw a distinction between the two areas. Article 207 Committee, Working Party on efta, Working Party on Dual-Use Goods, ­Working Party on Trade Questions, Working Party on Commodities, Working Party on the ­Generalised System of Preferences, Export Credits Group. acp Working Party, Working Party on Development Cooperation, Working Party on ­Preparation for International Development Conferences, Working Party on Humanitarian Aid and Food Aid. Mashreq/Maghreb Working Party, Working Party on Eastern Europe and Central Asia, Working Party on the Western Balkans Region, Middle East/Gulf Working Party, AsiaOceania Working Party, Working Party on Latin America, Working Party on Transatlantic Relations, Africa Working Party. Military Committee, Military Committee Working Group, Politico-Military Working Party, Committee for Civilian Aspects of Crisis Management, Working Party on European Arms Policy. Working Party of Foreign Relations Counsellors, Working Party on cfsp Administrative Affairs and Protocol, Nicolaidis Group; on the latter, see also Council doc. 8441/03. Working Party on Global Disarmament and Arms Control, Working Party on Non-­ Proliferation, Working Party on Conventional Arms Export, Working Party on Human Rights, Working Party on Terrorism (International Aspects), Working Party on the application of specific measures to combat terrorism, Ad hoc Working Party on the Middle East Peace Process. Working Party on osce and the Council of Europe; United Nations Working Party. Working Party on Public International Law and Working Party on the Law of the Sea. Working Party on Consular Affairs.

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the upper level (from preparatory body or psc to Coreper, or from Coreper to Council). The compromises brokered by the presidencies of Coreper, psc, and preparatory bodies may thus become de facto the decisions of the Council – even before the meetings of the institution take place. Before the Lisbon reform, the chairmanship of Coreper, psc, and preparato­ ry bodies was generally entrusted to the representatives of the country having the presidency of the Council, i.e. to an official of a Member State.49 After the Lisbon reform, the situation became more complex. There is indeed a tension between Article 16(9) teu, which entrusts the presidency of the Council to a Member State (on a rotational basis), and Article 18(3) teu, which entrusts the permanent chairmanship of the Foreign Affairs Council to the High Representative. One may wonder whether Coreper, psc, and the preparatory bodies of the fac should be chaired by the presidency (in continuity with the pre-­Lisbon arrangements), or if the eeas – which assists the fac President – should now chair all these bodies. Primary law does not regulate this issue, and Decision 2010/427 is quite vague. As noted above, Article 4(4) of the Decision laconically stipulates that the High Representative designates the chairpersons of preparatory bodies that are chaired ‘by a representative of the High Representative’, in accordance with the arrangements laid down by previous decisions of the Council.50 ­Intergovernmental organs indeed defined the rules regarding the chairmanship of preparatory bodies through two acts adopted as soon as the Lisbon Treaty entered into force (1 December 2009): European Council Decision 2009/881/EU51 and Council Decision 2009/908/EU.52 These decisions raise, first of all, an issue of competence. Could intergovernmental institutions lawfully adopt decisions on the chairmanship of preparatory bodies in the foreign affairs domain? The Decision of the European Council is founded on Articles 16(9) teu and 236(b) tfeu, which enable the 49

50 51 52

There were (and still are) three exceptions to this rule. First, the preparatory bodies dealing with administrative affairs, such as ‘electronic communication’, are chaired by the Council General Secretariat. Second, the sui generis bodies composed of both State ­representatives and Commission officials (e.g. the Employment Committee) elect their own chair. Third, the Military Committee (eumc) elects its own chair (whose mandate lasts three years). See Council Decision 2001/79/CFSP setting up the Military Committee of the European Union, oj 2001 L 27/4. The Military Committee also designates the chair of the European Union Military Committee Working Group, which assists the eumc itself. See Chapter 4.II.1.3. See n 147 p 172. See n 146 p 171.

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institution to adopt acts regarding the presidency of Council configurations, ‘other than that of Foreign Affairs’. It would not seem very reasonable to regulate the presidency of foreign affairs preparatory bodies on the basis of Treaty provisions that expressly exclude foreign affairs from their scope. The rationale for the choice of Articles 16(9) and 236(b) appears political, rather than legal. Probably, the Member States wanted to regulate the presidency of preparatory bodies before the establishment of the eeas, to avoid negotiating this matter with the Commission (whose assent was necessary for the adoption of a ­Decision establishing the eeas).53 Doing so through a European Council Decision, founded on specific legal bases, probably gave the arrangement more political legitimacy and reduced the probability that the Commission could question it. Secondly, and most importantly, the acts of intergovernmental organs are problematic because of their content. The European Council Decision directly defines the chairmanship arrangements of Coreper (chaired by the rotating presidency) and of the Political and Security Committee (chaired by the eeas).54 These arrangements seem quite natural, considering that Coreper does not operate solely in the area of external relations, and consequently can hardly be chaired by an eeas official; on the other hand, the Political and ­Security Committee operates only in the cfsp area, which is at the core of the eeas’s mandate (and consequently should be chaired by an eeas official). The arrangements regarding the other preparatory bodies are not defined in the European Council Decision, which allows the Council to regulate this issue.55 Council Decision 2009/908/eu, adopted on the basis of the European ­Council Decision, seems to distribute responsibilities in an arbitrary manner. The Rotating presidency maintains the chair of trade and development bodies. The eeas, on the other hand, is given the chairmanship of geographic preparatory bodies and of csdp-related bodies. Horizontal preparatory bodies ­follow more intricate rules: the bodies dealing with international law, consular affairs, terrorism, and one body managing the institutional issues of the cfsp are chaired by the presidency; the others are chaired by the eeas. Given the political rationale of the Decisions of intergovernmental organs, this seemingly arbitrary division of labour may perhaps appear not to be noteworthy. It is nonetheless remarkable that the Council voluntarily decided to entrust the chairmanship of half of its foreign affairs preparatory bodies to the 53 54 55

See Article 27(3) teu. European Council Decision 2009/881/EU (n 147 p 172), Article 2. Id., Article 1, third subparagraph, and Article 4.

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eeas, instead of preserving the role of its own presidency. Moreover, one may note that the Council’s Decision appears to follow a pattern: the eeas chairs the bodies that operate in areas where the Service has significant responsibilities in terms of policy management. The Service is indeed best placed to coordinate the activities of geographical bodies, since it contains ‘geographic desks covering all countries and regions of the world’.56 Similar considerations apply to csdp-related bodies, since several crisis management structures were ­transferred to the Service.57 Conversely, the presidency maintained the chairmanship of the bodies dealing with issues that the eeas does not directly manage, notably trade and consular affairs. Only two areas – terrorism and development cooperation – seem to make an exception to this trend: the presidency chairs the relevant preparatory bodies, despite the eeas’s prominent (if not leading) role in terms of policy initiative and implementation. The approach of intergovernmental institutions to division of labour in this area suggests that the eeas’s mandate, rather than being rigidly delimited in the black-letter law, is dynamic, and dependent on its capability to bring about added value in practice. Hence, one may argue that the Council has defined the mandate of the eeas, not in light of considerations related to the division of powers, but taking into account (albeit implicitly) the concern for external action coherence. This consideration has two corollaries. First, the Council should arguably revise the arrangements regarding the chairmanship of the working groups on terrorism and development cooperation: given its ­primary role in terms of policy implementation in these areas, it is probable that the eeas may bring added value to these Council working groups.58 ­Second, if the Service’s area of intervention were to expand in practice, the Council should reconsider its internal arrangements. The growing role of Delegations in consular protection, for instance, may suggest that the eeas should be e­ ntrusted with the chairmanship of the working group on consular affairs in the future.59 1.3 Chairmanship of Diplomatic Coordination Meetings The eeas’s role in the intergovernmental sphere is not limited to participation in the work of the Council structures, but extends to the diplomatic sphere. The arrangements regarding the chairmanship of Council preparatory groups in Brussels are indeed mirrored, to a certain extent, by those on diplomatic 56 57 58 59

Decision 2010/427 (n 132 p 94), Art. 4(3). See Chapter 6.II.1.2. To that effect, see eeas Review (n 13 p 3), at 6. See further on the protection of eu citizens Chapter 5.Iv.2.

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coordination meetings in the capitals of third countries. It is worth noting from the onset that diplomatic meetings, from a legal perspective, differ from the Council’s preparatory bodies, since they are not organs of an international organisation. However, they meet with similar frequency and have the same membership, since they comprise the representatives of the Member States; it seems appropriate, therefore, to address them in this section of the analysis. The black-letter law has never regulated diplomatic meetings in detail. The informal rules applicable in this area developed in the practice. The diplomatic missions of the Member States started to maintain close links early in the integration process, namely through regular meetings chaired by the rotating presidency. The London Report of foreign Ministers of eec Members on the European Political Cooperation (1981) acknowledged the relevance of this practice, asserting that it was ‘important that the Heads of Mission of the Ten maintain the practice of meeting regularly in order to exchange information and co-ordinate views’.60 eec foreign ministers went so far as to affirm that the first instinct of European diplomats should have been ‘to co-ordinate with their colleagues of the Ten’. The Commission was originally excluded from these meetings, which were part of the intergovernmental framework of the European Political Cooperation. Since the institution was to be ‘fully associated with the proceedings of Political Co-operation’,61 the Member States gradually started to include it in almost all the meetings of their diplomats.62 The progressive expansion of diplomatic meetings reinforced the trend. From merely ‘political’ events, they soon started to address Community issues, too. Therefore, the presence of Commission representatives was not only tolerated, but appreciated because of their expertise.63 The Single European Act partially codified the practice of diplomatic cooperation in Article 30(9), by requesting the Member States and the Commission to ‘intensify co-operation between their representations accredited to third countries and to international organizations’. The Maastricht Treaty further stipulated that the diplomatic and consular missions of the Member States and Commission Delegations were to cooperate in ensuring that the common positions and joint actions adopted by the Council were complied with and implemented. It also affirmed that they should have exchanged information, 60 61 62 63

Report on European Political Cooperation issued by the Foreign Ministers of the Member States on 13 October 1981. Article 30(3)(b) of the Single European Act. See Ben R Bot, ‘Cooperation between the Diplomatic Missions of the Ten in Third Countries and International Organisations’ (1994) 10 Legal Issues in European Integration 149. On the activities of Commission Delegations, see Bruter (n 82 p 217), at 193.

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carried out joint assessments, and contributed to the implementation of the right to diplomatic and consular protection of European citizens.64 In the daily activity of European diplomatic missions, cooperation was organised in a pragmatic manner. The frequency of the meetings depended on the requirements of each specific situation, and on the strategies of the Member States. Generally, European diplomats met at least once a month. The functions of diplomatic meetings varied as well. Sometimes they were used to foster cooperation on practical issues; in other cases, they pursued political purposes, such as: the exchange of information, the preparation of joint reports for the Council and its preparatory bodies, the management of cooperation in case of local crises, and the adoption of joint positions within international organisations.65 The most visible outcome consisted perhaps in the adoption of common positions, in the form of joint statements, ‘démarches’ or ‘local statements’. In diplomatic parlance, démarches consist of messages that the sending country transmits, via the diplomatic mission, to the receiving State, to persuade, inform, protest, or object to actions by its government.66 Local statements, in eu parlance, are an instrument of ‘public diplomacy’, and consist of messages published in open sources, e.g. a website.67 These statements are similar to the statements adopted by the Council,68 though they are less solemn, since they are adopted at the ‘diplomatic’, not at the ‘political’ level.69 64 65

Article 20 teu, in the pre-Lisbon consolidated version. See the Guidelines on cooperation between Member States’ missions and Commission delegations in third countries and within international organisations in cfsp matters, Council doc. 12094/00. On the cooperation of the European missions accredited to international organisations see Maximilian B Rasch, The European Union at the United Nations: The Functioning and Coherence of eu External Representation in a State-Centric Environment, Studies in eu External Relations (Martinus Nijhoff 2008), at 59ff. 66 Cf. us Department of State, Foreign Affairs Manual, Volume 5 Handbook 1, 5 fah-1h-613 demarches, accessed 18 November 2015. 67 There is no universally accepted definition of ‘public diplomacy’, but it can be described as a government’s process of communicating with foreign publics in an attempt to bring about understanding for its nation’s ideas and ideals, its institutions and culture, as well as its national goals and current policies, see Hans N Tuch, Communicating with the World: u.s. Public Diplomacy Overseas (Palgrave Macmillan 1990), at 3. On eu public diplomacy see Steffen Bay Rasmussen, ‘The Messages and Practices of the European Union’s Public Diplomacy’ (2010) 5 The Hague Journal of Diplomacy 263, at 273–276. 68 On the adoption of statements in the Council see further Chapter 6.I.1.1. 69 Local statements may pursue several purposes, such as congratulating the host country about an accomplishment (such as the abolition of the death penalty), expressing ­concern about a political crisis, condemning criminal acts, expressing condolences,

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European diplomatic missions made ample use of these common positions in the past, since they brought about an evident advantage, i.e. ensuring the unity of the eu’s external representation vis-à-vis third parties. The message agreed upon in coordination meetings could be delivered separately by the different European representatives, or by the representative of the eu, i.e. the Commission Delegations (in the ec area), or the Ambassador holding the presidency (with respect to the cfsp).70 In any event, the message remained unchanged, to impress upon the local authorities the common purpose of the European missions.71 Nonetheless, the pre-Lisbon practice evidenced some limits of diplomatic meetings. The Member States were not always eager to cooperate with each other, especially when their core interests relating, in particular, to trade and defence, came into play.72 The Commission could not function as an effective coordinator, since the Member States’ officials sometimes distrusted the scarce secrecy of the institution and the lack of diplomatic background of its officers. The missions of the Council presidency, which chaired diplomatic missions, could be more effective, in theory, but were not perfect. First, they were perceived as non-neutral, since other Member States could suspect that the presidency used European coordination as a means to foster its own priorities.73 Second, they had limited resources. Several Member States have relatively few diplomatic missions. Hence, coordination often had to be performed by other Member States. Finally, the presidency did not ensure continuity, since it changed every six months. This issue was internally problematic, since the missions of the Member States did not have a permanent point of reference, and had also an external dimension: the ‘voice’ and ‘face’ of the eu changed every six months.

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­ roposing solutions to international or internal problems, and in case of alleged violations p of ­democracy and human rights. Several examples of such statements can be r­ etrieved in the eeas’s website, accessed 18 November 2015. Bot (n 62 p 250), at 157. For a list of Presidency démarches in the field of cfsp, see accessed 18 November 2015. Roger Tomkys, ‘European Political Cooperation and the Middle East: A Personal Perspective’ (1987) 63 International Affairs 425, at 435. Tomkys (n 71 supra). Rasch notes, however, that, at the un, ‘the Presidencies are unable to use their semester in order to put into practice their exclusive interests […] when an eu ms, which regularly has strong national positions, has the Presidency, it has a problem bringing forward its national positions during its term, since it has to refrain from any position-taking’, Rasch (n 65 p 251), at 38.

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One may hypothesise that the Lisbon reform, and the creation of the eeas, may have contributed to solve these problems and to exploit the full potential of coordination meetings. As noted above, the Treaties make numerous references to the cooperation between European diplomatic missions.74 Articles 32 and 25 teu, in particular, stipulate that the diplomatic missions of the Member States and the Union Delegations (in third countries and at international organisations) must cooperate and contribute to formulating and implementing common positions. Article 221(2) tfeu further requests Delegations to act in close cooperation with Member States’ diplomatic and consular missions. Article 34 teu requests the Member States to coordinate their actions in multilateral fora, and demands the High Representative to organise such coordination. Last but not least, the very Article 27(3) teu affirms that the eeas must work in cooperation with the ‘diplomatic services’ of the Member States. While the Treaties contain several references to diplomatic cooperation, they do not describe either the form that this cooperation should take, or the precise role of the eeas in this ambit. The formulation of the aforesaid provisions, in fact, is not very different from that of pre-Lisbon rules. Decision 2010/427 adds little to the picture, reiterating that the Delegations must ‘work in close cooperation and share information with the diplomatic services of the Member States’,75 and that they must support the Member States in their ­diplomatic relations and in the provision of consular protection.76 Notwithstanding the imprecision of formal rules, the Member States readily accepted that Delegations were to perform a leading role in this area. eu representatives now chair the meetings of European missions accredited to third States and international organisations,77 and often represent the eu and 74 75 76

See Chapter 5.I.1. Decision 2010/427 (n 132 p 94), Article 5(9). Id., Article 5(10). It has been argued, in fact, that the relationship between the Delegations and national embassies is ‘very vague’, see Francesco Munari, ‘Azione Esterna [dir. ue]’, Treccani.it (Treccani 2014)accessed 19 December 2015 (translation by the author). 77 Internal eu coordination meetings take place in different formats. They include i­ nter alia ‘Heads of Mission, Deputy Heads of Mission, Political Counsellors, Trade Counsellors, Development Counsellors, Consular/Schengen, Administration, Press and Information etc’. The meetings are not held regularly: ‘[Head of Mission] meetings should be held at least once a month. Meetings in other formats can be organised according to need on a regular basis. In practice in many third countries, eu co-ordination meetings will ­occur more ­frequently’. In any event, ‘the Head of Delegation will ensure that regular eu co-ordination meetings are held and will chair meetings of eu Heads of Missions’. See eeas, eu Delegations’ Guide (Not published in open sources, 2014), section ‘Delegation Organisation: The Delegation’, para 1. On the coordination meetings within international

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its Members in the delivery of common statements, in cfsp and non-cfsp areas alike. These arrangements are remarkable: neither primary law nor secondary law expressly entrust the eeas (or the hr) with the power to chair diplomatic coordination meetings or to speak on behalf of eu Members.78 In general terms, primary law does not prevent Member States from associating eu bodies with procedures set up outside the Treaty framework,79 but the States are not obliged to do so, and may theoretically entrust the chairmanship of diplomatic meetings and their representation to their own diplomatic missions or to the rotating presidency. Yet, generally speaking, the Member States opposed little resistance to the growing role of eu Delegations.80

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organisations, see, e.g., Zappia M, ‘The United Nations: A European Union Perspective’ in Christine Kaddous (ed), The European Union in International Organisations and Global Governance: Recent Developments (Hart 2015), at 29. One may note that Article 34 teu stipulates that the hr ‘organises’ the coordination of the Member States in international organisations. However, it should also be noted that Article 34 teu concerns the coordination in international organisations only, and not in third States (while most eu Delegations indeed operate in third States). Moreover, Article 34 teu specifies that the ‘High Representative’ ‘organises’ a ‘coordination’, but does not specificy the role of the eeas, the content of the hr’s task of ‘organising’, or the notion of ‘coordination’. Rectius, the Member States are entitled, in areas which do not fall under the exclusive competence of the Union, to entrust tasks to the institutions, outside the framework of the Union, provided that those tasks do not alter the essential character of the powers conferred on those institutions by the Treaties, see Pringle v Government of Ireland et al., C-370/12, eu:c:2012:756, para 158. See also Parliament v Council and Commission, C-181/91 and C-248/91, eu:c:1993:271, para 20; Parliament v Council, C-316/91, eu:c:1994:76, para 41. The coordinating role of the Delegation, at any rate, does not seem particularly ­problematic from a legal viewpoint. The Delegation’s tasks evidently do not interfere with the powers conferred on eu bodies. In addition, this is not an instance of differentiated integration, which may possibly generate some difficulties, see Paul Craig, ‘Pringle and Use of eu Institutions Outside the eu Legal Framework: Foundations, Procedure and Substance’ (2013) 9 European Constitutional Law Review 263, at 284; cf. Steve Peers, ‘Towards a New Form of eu Law?: The Use of eu Institutions Outside the eu Legal Framework’ (2013) 9 European Constitutional Law Review 37, at 54–55. To be sure, there was some controversy regarding the Delegations’ leadership in the ­external representation, in both bilateral and multilateral fora. The United Kingdom, in particular, blocked more than 70 eu statements to un committees, because it insisted those statements should be delivered on behalf of the ‘eu and its Member States’ rather than ‘on behalf of the eu’. Even the uk, at any rate, did not dispute the role of the eu’s Delegation as a representative of the Union and its Members, but simply sought to prevent the ‘erosion’ of the States’ prerogatives in areas covered by shared competences not

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In other words, the role of eu Delegations in practice is wider than the Treaties would suggest. This is a rare occurrence in the external relations field: the Member States have entered into ambitious foreign policy commitments in the Lisbon Treaty, but often disavowed them in practice. For instance, Council members still make use of pre-Lisbon practices in the conclusion of international agreements, even when they no longer have any legal ground.81 The situation of diplomatic cooperation is the opposite: despite the absence of precise commitments in primary law, the Member States agreed to entrust to the eeas some of the functions that their own missions had been performing for decades. One may explain this irony by noting that, with all probability, eu States are aware that entrusting coordinating functions on the post-Lisbon Delegations brings about significant benefits. They are indeed likely to be more ­neutral than the missions of the Rotating presidency, since they genuinely coordinate European foreign policies, rather than promoting the national interest of a specific country. Delegations have more resources than most presidencies, since the diplomatic network of the eu is among the largest in Europe. Finally, the Delegations secure the continuity of the coordination, ensuring that the same authority chairs the meetings in perpetuity (instead of being limited to a six months term). It is likely that the Member States did not explicitly insert a reference to the Delegations’ role in the Treaties or in Decision 2010/427, not because they oppose it, but because they do not want to explicitly recognise it. Such a recognition may indeed suggest some form of subordination of their diplomatic missions to the one of the eu. It emerges from the analaysis that, as in the case of the Council’s preparatory bodies, the eeas’s integration into the diplomatic meetings is defined, not in light of an abstract conception of conferral of powers, but in a pragmatic way, arguably inspired by the concern for coherence.

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exercised by the eu. The crisis was solved, in fact, when the Member States, the Council and the Commission agreed that ‘the adoption and presentation of statements does not affect the distribution of competences or the allocation of powers between the ­institutions under the Treaties’, see Coreper, ‘eu Statements in multilateral organisations’, Council doc. 15901/11. See also Wouters and others (n 1 p 1), at 71; Christine Kaddous (ed), ‘­Introduction: The European Union in International Organisations – Functional Necessity or General Aspiration?’ The European Union in International Organisations and Global Governance: Recent Developments (Hart 2015), at 5–7; Jan Wouters, Jed Odermatt and Thomas Ramopoulos, ‘The Status of the European Union at the United Nations General Assembly’ in Inge Govaere and others (eds), The European Union in the World: Essays in Honour of Marc Maresceau (Brill | Nijhoff 2014), at 220; Stephan Keukeleire and Tom ­Delreux, The Foreign Policy of the European Union (Palgrave Macmillan 2014), at 306. Gatti and Manzini (n 156 p 51), at 1726–1729.

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The eeas’s potential, of course, does not necessarily ensure the attainment of coherence in practice. The new arrangements would seem to have generally improved coordination on the ground in third states and at international organisations.82 Yet, much depends on factors beyond the eeas’s control. The attitude of third States affects eu coordination. They may indeed encourage cooperation between the Member States and the Delegation, either voluntarily (to ensure that their message gets across to as many Member States in as short time as possible),83 or involuntarily (by putting pressure on Member States not to unite).84 Third States may also discourage cooperation, by failing to acknowledge the Union as an actor, because of their bias in favour of State-centric ­international relations.85 The attitude of the Member States and of their representatives is even more crucial. If national diplomats have experience with eu institutions, they are likely to be prone to develop a ‘coordination reflex’ and seek the cooperation of other Union Members and of the eeas.86 One may suppose that the secondment of national diplomats to the eeas may lead to better links with national administrations, and to the prevalence of an informal ‘norm’ of consultation among European representatives.87 The pursuit of national interest, at any rate, will always stand in the way of cooperation. In emerging countries, in particular, the Member States tend to ‘stab each other

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Wouters and others (n 1 p 1), at 70. This seems to the case of the us, see Tereza Novotná, ‘The eu’s Voice in Third Countries: The eu Delegations around the World’ (2014) 47 Studia Diplomatica 29, at 35. For an overview of the evolution of eu/us relations, see Günter Burghardt, ‘The eu/us Transatlantic Relationship – the Indispensable Partnership’ in Christoph Herrmann, Bruno Simma and Rudolf Streinz (eds), Trade Policy between Law, Diplomacy and Scholarship: Liber Amicorum in Memoriam Horst G. Krenzler (Springer 2015). 84 Novotná (n 83 p 256), at 37. 85 Id., at 41. 86 An eeas official, formerly posted to one of the main Commission Delegations (interview 17, September 2012) used the expressions ‘coordination reflex’ and ‘Community reflex’ to describe this attitude of national diplomats. It is worth noting that, according to Bale, there was not, at the time of writing (2000), anything that ‘could accurately be described as a coordination reflex’, see Tim Bale, ‘Field-Level cfsp: eu Diplomatic Cooperation in Third Countries’ (2000) 10 Current Politics and Economics of Europe 187. Rasch, on the other hand, argues that a ‘consultation reflex’ exists, but only with limited effects on the policies themselves, see Rasch (n 65 p 251), at 58. 87 Cf. Martin Holland, ‘European Political Co-Operation and Member State Diplomatic Missions in Third Countries – Findings from a Case-Study of South Africa’ (1991) 2 Diplomacy & Statecraft 236.

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in the back’, to ‘cut a bigger slice of the pie’ for themselves.88 Such an attitude is hardly conducive to mutual trust and effective coordination. Integration in the Commission Structure General Considerations on the eeas’s Integration in the Commission The integration of the eeas into the Commission’s activities is of paramount importance for the maintenance of coherence in eu foreign affairs. The ­Service, in fact, assists primarily the High Representative, whose powers in the cfsp sphere mirror those that the Commission exerts in the non-cfsp area. When discussing the cooperation between the eeas and other entities, Chapter 5 elucidated a form of partial integration between the Service and the Commission: the mutual consultation between the eeas and Commission departments.89 The eeas’s integration in the institution may also be more complete, to the extent that the Service may substitute for Commission departments in the conduct of their tasks. The Treaties do not allocate any specific portfolio to the eeas. Decision 2010/427 identifies the eeas’s role in the field of international cooperation (which is discussed below), but is silent with respect to the other responsibilities of the Service. In addition, one may note that Article 18(4) teu stipulates that the High Representative ‘is bound by Commission procedures’ when he/she operates as its Vice-President.90 One may possibly argue, therefore, that the Commission may treat the hr’s service – the eeas – as one of its departments. By virtue of is ­institutional autonomy, the Commission is able to determine the policy management ­responsibilities of its departments.91 The latter may consequently draft legal acts and prepare policy documents connected to the exercise of the Commission’s powers (notably, initiative, policy implementation, and external representation in the non-cfsp field, as well as financial implementation of operational credits). This means, in practice, that the Commission may ­autonomously define the policy management responsibilities of its departments and reshuffle them at will. In light of Article 18(4) teu, it would seem that the Commission should also be free to determine the responsibilities of 2 2.1

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These expressions were used by a diplomat of an eu Member State, posted in an embassy placed in an emerging country (interview 21, August 2015). Cf. Wouters and others (n 1 p 1), at 71. See Chapter 5.II.2. See also Vademecum (n 17 p 199), at 8. See Articles 248 and 249 tfeu.

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the eeas in its capacity as a service of the Commission’s Vice-President (and High Representative). The practice confirms this interpretation of Article 18(4) teu: the Commission has defined and reshuffled the responsibilities of its departments in a seemingly discretionary manner. On the one hand, the institution has entrusted the management of most external action policies to departments ­other than the eeas: external commerce remains with dg Trade, while humanitarian aid is under the responsibility of dg Echo; dg Devco largely controls ­development cooperation, and dg Neighbourhood and Enlargement Negotiations (hereinafter: Near) is in charge of the enlargement policy. This approach is not entirely unreasonable: probably, it would not be logical to entrust all external relations responsibilities on a single bureaucratic structure. Some concerns, however, may be expressed about the possible duplication of work between the eeas and Commission departments. The Service has geographic desks covering all countries and regions of the world, pursuant to Article 4(3) (a) of Decision 2010/427. Commission dgs also have units that oversee the collaboration with specific countries and regions. dg Near, in particular, has desks that seek to manage the bilateral relations of the Union with candidate and potential candidate countries (e.g. Turkey and Kosovo).92 This mandate would seem to overlap with the one of the eeas; in fact, both the Service and dg Near have units for Turkey and Western Balkans. Other possible problems of coordination exist in the fields of international cooperation (which is addressed in the next paragraph), as well as in crisis response and diplomacy (which are analysed in Section ii). On the other hand, there would seem to be two areas in which the Commission voluntarily entrusted the eeas with significant responsibilities. The first area is treaty-making. The eeas is often tasked with drafting the Commission’s proposals relating to the process of conclusion of international agreements,93 even in areas where dgs are generally responsible for policy management.94 92 93

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See the website of dg Near accessed 15 November 2015. More precisely, the eeas often prepares Commission proposals regarding the signing and the conclusion (i.e. ratification) of international agreements, as well as the position that the eu should take within international bodies. The Commission register does not ­contain the recommendations for the opening of international negotiations, but one may suppose that the eeas is likely to play a significant role in this phase too. See, e.g., the Proposal for a Council Decision on the position to be adopted, on behalf of the European Union, in the European Economic Area (eea) Joint Committee concerning an amendment to Annex ii (Technical regulations, standards, testing and certification) of the eea Agreement (Novel foods), com(2015) 76 final. The Commission register

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This situation is arguably explained, not by abstract considerations of institutional balance, but by a pragmatic concern: the eeas has specific foreign policy expertise and is perhaps better suited to deal with international agreements than the services of the Commission. The institution gave the eeas the lead, in particular, with respect to the proposals relating to several agreements ­having both non-cfsp and cfsp components (which may be termed as ‘crossTreaty Agreements’),95 notably Framework Agreements. This solution seems reasonable: the proposals for the negotiation and conclusion of cross-Treaty ­agreements must come from the High Representative (for the cfsp part) and the Commission (for the non-cfsp one). The eeas necessarily prepares the cfsp section of the proposal, and it appears appropriate that it should be in charge of the non-cfsp part as well.96 It is probably for similar reasons that the Commission also gave the eeas the lead in the negotiation of cross-Treaty agreements. In principle, these agreements should be negotiated by the hr (with respect to cfsp issues) and by the Commission (in the other areas).97 Nonetheless, the Commission decided to entrust the eeas with the lead responsibility regarding the non-cfsp aspects of several cross-Treaty agreements. The Commission Secretary-General and the Chief Operating Officer of the eeas adopted a joint note to regulate this situation.98 According to this instrument, the High Representative may nominate a ‘Chief Negotiator’ (a senior eeas staff member), who conducts the negotiation on behalf of the hr (in respect of cfsp issues) and of the Commission (in other areas). The Commission and the eeas may then nominate other ‘experts’ as part of the negotiating team, who operate under the authority of

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­identifies the service responsible for the administrative preparation of a specific instrument (in this case, the eeas), see accessed 17 November 2015. In fact, the cfsp provisions are located within the teu, while non-cfsp legal bases are to be found in the tfeu, see Gatti and Manzini (n 156 p 51), at 1707. The Commission has given the eeas the lead in respect of the preparation of several decisions concerning Association Agreements: JOIN(2015) 4, JOIN(2014) 36, JOIN(2013) 14, JOIN(2013) 6, JOIN(2015) 24, JOIN(2015) 10. On the contrary, it has given the lead to dg Devco for the preparation of a decision authorising the signature of a scientific ­cooperation agreement, see JOIN(2015)29. On the negotiation of cross-Treaty agreements, see Gatti and Manzini (n 156 p 51), at 1720–1723. Commission Secretariat-General and eeas, ‘Note for the Attention of Director-Generals and Heads of Service: Operational Guidelines for the Preparation and Conduct of Negotiations for Framework Agreements with Third Countries Involving Both the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy (hr)’. This document is neither dated nor published in open sources.

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the Chief Negotiator.99 The latter ‘leads the negotiating team’, and gives the floor during the negotiations to the eeas and Commission experts ‘as appropriate’. This suggests that the Chief Negotiator may ensure a coherent action on the part of the negotiating team, thereby guaranteeing unity in the international representation of the Union. The only problem with this arrangement is that, in the future, the Commission may decide not to apply it, by not giving the eeas the lead in the negotiation of the non-cfsp components of crossTreaty agreements. The second area in which the eeas plays a relevant role within the Commission, aside from treaty-making, is the management of the Neighbourhood Policy.100 When the eeas was set up, it absorbed Commission dg Relex, which was previously responsible for the eu’s neighbourhood. Hence, the Commission lost its administrative structure for the management of the Neighbourhood Policy – while it maintained a Commissioner responsible for this area. During a first period (2011–2014), instead of creating new ‘desks’ for the countries of the neighbourhood, the Commission simply ‘used the eeas and its desk officers’.101 The eeas thus supported, not only the hr/vp, but also the ­Commissioner responsible for the neighbourhood policy.102 The Service drafted numerous instruments in this field.103 Such a solution had the advantage of

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The negotiating team for cross-Treaty agreements, in other words, is composed of Commission and eeas staff and is led by an eeas official. Hence, it may be described as an eeas organ that ‘integrates’ Commission structures, and is therefore similar to an eu ­Delegation (see Chapters 6.II.2.2 and 6.II.2.3) – with the difference that the Delegation is a permanent organ, while the negotiating team is not. 100 The management of financial assistance to the eu’s neighbours is discussed in the next paragraph. 101 uk House of Lords, The eu’s External Action Service: 11th Report of Session 2012–13 (n 139 p 95), para 118. 102 Cf. eeas Review (n 13 p 3), at 7: ‘For example in 2012 the eeas prepared more than twice the number of briefings for the President and other members of the Commission as it did for the High Representative’. See also David O’Sullivan, epc Breakfast: The European External Action Service One Year on (2012) accessed 19 December 2015: ‘We also provide briefings for Commissioners (particularly Fule with around 235 last year, Piebalgs with 51, Georgieva and others), and draft joint papers on (e.g. enp)’. 103 For example, the eeas was responsible for the preparation of progress reports regarding Neighbourhood countries; see, e.g. the Joint Staff Working Paper – Implementation of the European Neighbourhood Policy in 2010 – Progress Report: Egypt, sec(2011)647/ F1, ­available at the Commission register, ­accessed 18 November 2015.

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simplifying the administrative framework of eu external relations, but it did not last. In 2014, the new Commission President reshuffled the administrative structure of the institution. The officials that managed the financial aspects of the cooperation with the eu’s neighbours in dg Devco104 were transferred to dg Elarg (renamed as dg Near). The latter dg was charged with the management of both the enlargement and the neighbourhood policy, under the responsibility of the neighbourhood Commissioner. This would seem to indicate that dg Near should take over the relations with the eu’s neighbours in toto. Therefore, the problems of duplication between the eeas and dg Near may risk expanding from the area of enlargement (discussed above) to that of Neighbourhood. One may surmise, nonetheless, that the eeas is likely to maintain a relevant role in the field of Neighbourhood, given its greater resources and expertise. It would seem, in fact, that the eeas led the preparation of numerous neighbourhood-related instruments in 2014 and 2015.105 The eeas plays an even greater role in the field of international cooperation, discussed in the next paragraph. In this case, however, the Commission did not autonomously decide to entrust a role on the Service: it was the legislature that largely defined the eeas’s tasks, thereby raising different legal issues. 2.2 The Puzzle of International Cooperation The eeas’s role in the Commission is most evident with respect to international cooperation. To properly discuss this issue a brief introduction of international cooperation in eu law is in order. One may define international cooperation as the set of practices and acts of eu bodies that are directly or indirectly founded on the chapters ‘development cooperation’ and ‘economic, financial and technical cooperation with third countries’ of the tfeu (Articles 208–213).106 This definition implies that cooperation with third countries is composed of two policies, with different objectives and scope. Development cooperation has as its primary objective the reduction and, in the long term, the eradication of 104 More precisely, Directorate F of dg Devco. 105 This is the case, in particular, of country reports, see e.g. the Joint Staff Working ­Document – Implementation of the European Neighbourhood Policy in Lebanon Progress in 2014 and recommendations for actions, swd(2015)68 final, available at the Commission register, accessed 18 November 2015. 106 Cooperation with third countries encompasses the management of the European Development Fund, too (see infra), which is not provided for in the eu Treaties, but which logically, institutionally and administratively belongs to the framework of international cooperation.

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poverty in developing countries.107 In other words, the ­Treaties configure it as an ‘altruistic’ policy. On the contrary, ‘economic, financial and technical cooperation’ does not have autonomous objectives, and may be used to pursue the general objectives of the eu’s external action, including the promotion of the eu’s interests and security (Article 21 teu), in the relations with ‘third countries other than developing countries’ (Article 212(1) tfeu). It is worth stressing that international cooperation intersects, and supports, other policies, notably the neighbourhood policy. The rules applying to the management of the relations with eu neighbours (in policy terms) have been discussed in the previous paragraph; the ones related to the management of international cooperation (in financial terms) are presented here. The eu’s cooperation with third countries is implemented mainly through the so-called ‘external action instruments’. An external action instrument may be termed as a framework composed by a financial facility and the procedures that regulate its allocation and disbursement. These instruments come in two categories. The main instruments address the cooperation with countries from a specific region (hereinafter: ‘geographic instruments’).108 Two instruments finance cooperation with developing countries: the European Development Fund109 (directed at countries of Sub-Saharan Africa, the Caribbean, and the Pacific), and the Instrument for Development Cooperation110 (mainly for Asian and Latin American countries), which aim primarily at the eradication of ­poverty.111 107 The eu generally identifies developing countries as the recipients of official development assistance, defined by the Organization for Economic Cooperation and Development, i.e. low and middle income countries, with the exception of G8 members, eu ­members, and countries with a firm date for entry into the eu. Seeaccessed 18 November 2015. 108 Stroß rightly defines these instruments as ‘the big three’, because of their financial and political relevance, see Simon Stroß, ‘Programming eu External Action Post-Lisbon: New Opportunities or Business as Usual?’ (2012) Eipascope 25. 109 Council Regulation 2015/322, oj 2015 L 58/1. 110 Parliament and Council Regulation 233/2014/eu, oj 2014 L 77/44. 111 This Fund is not based on a Treaty provision, but on an ‘internal agreement’ of the Member States, whereby they accept to give a voluntary contribution to the Fund, see the 10th edf internal agreement, oj 2006 L 247/32. This internal agreement, in turn, implements the Cotonou agreement concluded by the Union and its Members with the African Caribbean and Pacific (acp) countries, see acp-ec partnership agreement, Signed in Cotonou on 23 June 2000, revised in Luxembourg on 25 June 2005 and revised in Ouagadougou on 22 June 2010, see oj 2000 L 317, oj 2004 L 297, oj 2005 L 209, oj 2005 L 287, oj 2006 L 247, oj 2010 L 287. Notwithstanding its peculiarities, the procedures for the implementation of the Fund and its objectives are similar to those of the other geographic instruments. See,

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The European Neighbourhood Instrument112 (which provides support for the eu’s neighbours), on the other hand, has a wider array of objectives, including the eradication of poverty, as well as promotion of human rights, and the integration of neighbours in the eu’s internal market.113 The other ‘geographic instruments’ are not development-oriented. The Instrument for Pre-Accession Assistance supports the candidates and potential candidates for eu membership, to help them ‘comply with the Union’s values and to progressively align to the Union’s rules’.114 The Partnership Instrument for cooperation with third countries is a flexible instrument that supports cooperation with any country covering initiatives in the interest of third countries, and in the interest of the eu.115 Geographic instruments are complemented by ‘thematic’ instruments and programmes that support projects in specific fields. The Instrument for Development Cooperation contains thematic programmes that support development-related projects, such as food security and civil society, in developing countries.116 The development dimension is more nuanced for the other instruments, which indeed support cooperation with any country: the Instrument for Nuclear Safety Cooperation,117 the Instrument for Democracy and Human Rights (which finances, inter alia, electoral observation),118 and the Instrument contributing to Stability and Peace (which supports crisis response and crisis preparedness projects).119 Being part of the non-cfsp strand of the external action, the eu’s policy of international cooperation is managed by the Commission, which has the power to propose the adoption of legislative acts in this ambit, as well as the power to implement them. The implementation of international cooperation acts comes

112 113 114 115 116 117 118 119

in particular, Article 1(2)(a): ‘the primary objective of cooperation under this Regulation shall be the reduction and, in the long term, the eradication of poverty’. Cf. Parliament v Council, C-316/91, eu:c:1994:76, para 41. Parliament and Council Regulation 232/2014/eu, oj 2014 L 77/27. Id., Article 2(1). Parliament and Council Regulation 231/2014/eu, oj 2014 L 77/11. Parliament and Council Regulation 234/2014/EU, oj 2014 L 77/77, Article 2(2) and (5). Regulation 233/2014/eu (n 110 p 262), Article 6. Council Regulation 237/2014/Euratom, oj 2014 L 77/109. Parliament and Council Regulation 235/2014/eu, oj 2014 L 77/85. Regulation 230/2014/eu (n 166 p 54). More precisely, the instrument enables the disbursement of funds (i) in a situation of crisis or emerging crisis, (ii) for the prevention of ­conflicts and to ensuring capacity and preparedness to address pre- and post-crisis situations, (iii) to address specific global and trans-regional threats to peace, international security and stability (see Article 1(4)).

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through two main phases. The first, known as ‘programming’, is highly relevant from a political perspective, since it consists in the definition of the strategy of the eu’s cooperation and to the allocation of resources (with respect to each country or theme).120 Before the Lisbon reform, the main C ­ ommission departments involved in programming were dg Dev (responsible for the European Development Fund and thematic programmes of the Development Cooperation Instrument) and dg Relex (for the other instruments and programmes). The second phase, known as ‘financial implementation’,121 is more ‘technical’ in nature, since it consists in the identification and financing of specific projects, in light of the previously defined strategy.122 Until 2009, the implementation of external action instruments was entrusted mainly to Commission dg Aidco, which was placed under the responsibility of the ­Commissioner for external relations.123 International cooperation covers a number of activities, such as training, education,124 and even the fight against the proliferation of small arms.125 Hence, it is interwoven with other actions, including, in particular, the Common Foreign and Security Policy. It is well known, in fact, that ‘there can be no sustainable development and eradication of poverty without peace and security’.126 The relationship between development policy and other eu actions is regulated mainly by Article 208(1) tfeu, which stipulates that the Union must take account of the objectives of development cooperation in the policies it implements which are likely to affect developing countries. Another 120 See further, European Commission, Project Cycle Management Guidelines, 2004, ­available at accessed 19 December 2015, at 25ff.; see also European Commission, Guidelines on the Programming, Design & Management of General Budget Support, 2007, available at accessed 19 December 2015, at 39. 121 See Decision 2010/427 (n 132 p 94), Article 9(6). 122 See Parliament and Council Regulation 236/2014/eu, oj 2014 L 77/95. 123 Admittedly, this is a simplification. In fact, dg Elarg gave implementation to the Instrument for pre-Accession, and dg Relex implemented a few programmes, including the short-term part of the Instrument for Stability. 124 Cf., mutatis mutandis, Portugal v Council, C-268/94. eu:c:1996:461, para 63. 125 Parliament v Commission, C-403/05, eu:c:2007:624, paras 85–91. 126 Ibid.; Commission v Council (Ecowas) (n 151 p 50), para 65. See further Dusépulchre G, ‘­Dimension politique de la politique communautaire de coopération au développement, quelle cohérence?’ in Marianne Dony, Lucia S Rossi (eds), Démocratie, cohérence et transparence : Vers une constitutionnalisation de l’Union européenne ? (Editions de l’Université de Bruxelles 2008), at 273.

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norm that comes into play is Article 40 teu, which stipulates that the implementation of cfsp actions must not affect non-cfsp initiatives, and vice-versa. The strict relationship between international cooperation and ‘political’ issues means that coordination is particularly important in this sector. Of course, cfsp acts can hardly interfere with the application of development cooperation rules, ex Article 40 teu.127 One may wonder, however, whether the main administration involved in the cfsp – the eeas – may play a role in this field. The ‘Progress Report’ that High Representative Solana and the Commission presented to the European Council in 2005 suggested that there was ‘no prima facie case’ for integrating the Commission services working on the management of external financial assistance into the eeas.128 The Member States agreed that the establishment of the eeas should not have prevented the Commission ‘from organising its Directorate-Generals’ in the field of ­development cooperation.129 The preparatory work undertaken by the Presidency, the Member States, the Commission, and the Council in 2009, however, led in another direction: the Service ‘should play a leading role in the strategic decision-making’ in this field.130 The subsequent High Representative’s proposal for the establishment of the eeas indicated that thematic programmes would have remained under the responsibility of Commission services,131 but the three principal geographical instruments would have been directed by the eeas. A ­ ccording to the hr’s plan, any proposals in this field, including those for changes in the basic regulations and the programming documents, should have been prepared by ‘the relevant services in the eeas and in the Commission’.132 The eeas would have had a leading role vis-à-vis Commission services, since it would have had ‘responsibility for preparing’ Commission decisions on country allocations and strategic papers.133 The following negotiations between the High Representative, the Council, the Commission, and the Parliament partially modified this framework. On the one hand, the Parliament intended to preserve the role of Commission 127 See Chapter 1.III.3.1. 128 Issues Paper on the European External Action Service, Council doc. 9956/05, Annex ii, para 16. 129 Progress Report on the eeas (n 10 p 3), Annex i, para 9. 130 Presidency report to the European Council on the European External Action Service, Council doc. 14930/09, para 9. 131 Id., Art. 8(6). 132 Draft Council decision establishing the organisation and functioning of the European ­External Action Service, Council doc. 8029/10, Art. 8(4). 133 Id., Art. 8(3).

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d­ epartments, and managed to obtain a change in the wording related to the main development cooperation instruments. Article 9 of Decision 2010/427 specifies that geographical instruments are ‘jointly prepared’ by the eeas and Commission services, and that the former ‘shall contribute to the programming’ of development cooperation. These modifications, however, raise a problem of interpretation: is the eeas to lead the programming of geographic instruments, or should it be placed on equal footing with Commission services? On the other hand, some Member States advocated for a greater role for the eeas, and they obtained a change in the division of labour regarding the instruments that are less concerned with development. Decision 2010/427 stipulates that the Instrument for Cooperation with Industrialised Countries (now Partnership Instrument), election observation missions (under the Instrument for Democracy and Human Rights), and crisis response actions (under the Instrument contributing to stability and peace) are ‘under the responsibility of the High Representative/the eeas’. In addition, the financial implementation of these programmes is ensured by a ‘Commission department’ under the authority of the High Representative/Vice-President of the Commission, and ‘co-located with the eeas’, i.e. the already cited Service for Foreign Policy Instruments.134 Decision 2010/427 also limits the role of Commission services in the programming of thematic programmes, by stipulating that they have exclusive responsibility solely with respect to the thematic part of the Instrument for Development Cooperation. Does this mean that the other thematic instruments are entirely programmed by the eeas? The Working Arrangements between Commission Services and the eeas, mentioned earlier in the text,135 clarify the division of labour between the eeas and the Commission departments in the programming of external action instruments, solving the interpretative issues mentioned above. The Working Arrangements confirm that Commission services are responsible for the programming of the thematic programmes under the Instrument for Development Cooperation (Dg Devco), and for the Instrument for Pre-Accession (dg Near).136 Moreover, the eeas is solely responsible for managing the Partnership instrument, electoral observation,137 and the crisis response part of the Instrument for Stability and Peace.138 The Working Arrangements also clarify the content of the secondary law provisions on thematic instruments (nuclear 134 135 136 137 138

See Chapter 4.II.1.2. See text to n 15 p 199. This instrument, in fact, is not even mentioned in Decision 2010/427. Working Arrangements (n 15 p 199), para 3.5. Id., para 3.7.1.

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safety, democracy and human rights, and crisis preparedness) by giving the lead to the eeas.139 The distribution of tasks regarding the programming of the main geographical instruments seems to follow the preferences of the Parliament: any proposal must be ‘prepared jointly’ by the eeas and Commission services (dg Devco in respect of the European Development Fund and the Instrument for Development Cooperation; dg Near for the Neighbourhood Instrument).140 Finally, the Working Arrangements regulate the financial implementation of external action instruments consistently with the letter of Decision 2010/427: the Service for Foreign Policy Instruments implements the Partnership Instrument and the actions relating to crisis response and electoral observation, while dg Devco implements the rest. The intricate distribution of tasks between the eeas and Commission services raises two further legal questions. First, may an autonomous service, such as the eeas, participate in Commission activities without impinging on the institutional balance of the eu? And may a Council act, such as Decision 2010/427, interfere with the Commission’s internal organisation without jeopardising its institutional autonomy? 2.3 A Puzzle Solved by the Principle of Coherence141 The eeas’s intervention in managing development programmes was soon described as problematic for institutional balance. As has been noted by Van Reisen, ‘the Treaty does not provide for a split of responsibilities between the eeas and the Commission, and there are no arrangements to allow a sharing of policy implementation under the Treaty’.142 From a formalistic perspective, this concern does not seem justified. The eeas Decision does not formally ­allocate any power to the eeas.143 All legal acts relating to development cooperation must be adopted by the Commission, which also sets the rules for the

139 Id., paras 3.5, 3.6. 140 Id., para 3.4. dg Devco was co-responsible with the eeas for the Neighbourhood Instrument; this responsibility was entrusted to dg Near in 2014. 141 Part of this paragraph was originally published in Gatti, ‘Coherence vs. Conferred P ­ owers?’ (n 42 p 148). 142 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) (­Europe External Policy Advisors 2010) accessed 19 December 2015. 143 The Service cannot have any power in respect of the management of development cooperation, because, like Coreper, ‘it is not an institution of the Communities upon which the Treaty confers powers of its own’. See Commission v Council (fao) (n 46 p 68), para 26. See further Van Vooren (n 3 p 1).

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implementation of external action instruments.144 This formalistic perspective, at any rate, appears insufficient, since the eeas’s action in the field of development aid impinges de facto on the exercise of Commission powers. Programming documents are written by relying on the expertise of numerous trained officials, and the College of Commissioners can hardly question their analyses.145 Since the Commission should be the only entity setting the priorities of international cooperation during the implementation phase, and the eeas is formally separate from the Commission, it may theoretically seem logical that certain phases of the programming cycle should remain with the Commission services.146 Why did legislators introduce an apparent compression of the Commission’s powers and a possible modification of the institutional balance? A ­partial answer may be garnered from Article 18(4) teu, according to which the High Representative is responsible within the Commission for responsibilities i­ ncumbent on it in external relations, and for coordinating other aspects of the Union’s external action. Article 9(2) of the eeas Decision confirms the existence of a link between the eeas’s involvement in development cooperation and Article 18(4) teu, by stating that external action instruments are a means for the High Representative to ensure ‘overall political coordination of the Union’s external action, ensuring the unity, consistency and effectiveness of the Union’s external action’. Since the High Representative would be unable to coordinate external action if development cooperation were programmed solely by departments under the responsibility of other Commissioners,147 the solution adopted by legislators may seem to be inspired by a systemic reading of Article 291(2) tfeu and Article 18(4) teu. Even this argument, however, is insufficient. It is not clear, in particular, why the eeas’s involvement in development cooperation should take different forms in different programmes. More generally, it may be asked whether Article 18(4) teu can justify any degree of eeas involvement in Commission policies. A closer look at the division of labour between the eeas and the ­Commission 144 Blockmans, ‘Beyond Conferral’ (n 79 p 31), at 16. Cf. Article 9(3) of Decision 2010/427 (n 132 p 94). 145 See further Chapter 4.I.4. 146 Daniel R Mekonnen, The Draft Council Decision on the Establishment of the European External Action Service and Its Compliance with the Lisbon Treaty: European Solidarity towards Equal Participation of People (Eurostep 2010)accessed 19 December 2015, at 13. 147 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 (European Institute of Public Administration 2010), at 11.

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departments clarifies these issues. The solution adopted by l­egislators, and recalibrated through inter-service negotiation, has a clear rationale, its point being to enable the eeas to intervene where it can bring added value through its officials’ expertise in the political arena. The Service’s authority on diplomacy justifies its exclusive administrative responsibility ­relating to electoral observation. In the prominent role of the eeas in the cfsp area probably lies the rationale for its preponderant influence on sectors close to ‘high politics’, such as human-rights promotion and security management at large (nuclear safety, crisis preparedness, and crisis response).148 Finally, the eeas’s tasks as a political coordinator presumably explain its partial control of the main development-cooperation instruments, which are rather technical in nature but have some political import because of their financial size. In other words, the Service participates in the programming of these instruments in order to make sure that the actions of development specialists in dg Devco are coherent with the Union’s overall political priorities.149 Therefore, the eeas’s involvement appears to be proportional to the functional proximity between development programmes and political issues, and thus to the concern about coherence between cfsp and non-cfsp actions.150 The approach adopted by legislature suggests that the legislature has balanced the principle of coherence against the delimitation of the powers conferred on the Commission. The variable degree of eeas intervention suggests that when there is a strong concern with coherence (e.g. crisis response), a  ­flexible interpretation of Commission powers may be justified; when this concern is not present (e.g. thematic programmes of the Instrument for Development Cooperation), conferred powers are interpreted in a rather rigid manner. Consequently, the distribution of powers is not abstract, rigid, and 148 See Mauro Gatti, ‘The Role of the European External Action Service in the External ­Dimension of the Area of Freedom Security and Justice’ in Catherine Flaesch-Mougin and Lucia Serena Rossi (eds), La dimension extérieure de l’espace de liberté, de sécurité et de justice de l’Union européenne après le Traité de Lisbonne (Bruylant 2013), at 181; Sara Pugliese, ‘Il finanziamento della pesc tra tendenze all’integrazione e istanze centrifughe’ (2013) Il diritto dell’Unione europea 363, at 374. 149 This view was expressed, in particular, by an eeas official working on development cooperation (interview 1, April 2012). 150 It may be noted that the legislature preferred this approach to other scenarios originally suggested by C. Ashton (such as the transfer of the entire programming to the eeas, or a regional division of labour in which the Commission would have been responsible for Africa and the Service would have taken care of Asia and Latin America). See Isabelle Tannous, ‘The Programming of eu’s External Assistance and Development Aid and the Fragile Balance of Power between eeas and dg Devco’ (2013) 18 European Foreign Affairs Review 329, at 334.

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static, as the language of the Treaties would suggest, but pragmatic, multiform, and dynamic. The division of labour between services is also based on practical concerns, it takes diverse forms in the different programmes, and it may change over time, since the eeas and Commission services may negotiate the details of their relations via inter-service arrangements. Such a finding is not entirely novel, since the analysis has shown that the eeas’s tasks in the Council are also defined in light of pragmatic considerations. In the case of the integration within the Commission, however, the concern for coherence seems to be much stronger, to the extent that it has consequences in terms of the interpretation of the division of powers among eu organs – consistently with the interpretation of this principle introduced in Chapter 1.151 If one considers the concern for coherence that characterises the allocation of responsibilities in respect of the programming of external action instruments, the arrangements applicable to the subsequent phase – i.e. financial implementation – may appear quite odd. Decision 2010/427 does not allow the eeas to implement financial credits related to international cooperation. On the contrary, this activity is always performed by Commission services. dg Devco is responsible for the financial implementation of all instruments and programmes, with the exception of those ‘programmed’ primarily by the eeas (Partnership Instrument and the actions relating to crisis response and electoral observation), which are implemented by the Service for Foreign Policy Instruments. As a result, there is procedural fragmentation between programming (under the responsibility of the eeas) and financial implementation (under the responsibility of the fpi). This fragmentation does not appear c­ onducive to increased coherence in European foreign affairs, and seems unnecessary from a legal perspective: as noted above, the Commission may ­delegate financial implementation powers to eeas officials in theory,152 and does delegate such powers in practice.153 ii

Integration of Other Administrations in the eeas

The coordination of eu foreign affairs may come through the cooperation b­ etween the coordinator and coordinated authorities, discussed in Chapter 5,

151 See Chapter 1.III.1. 152 See Chapter 4.II.1.2. 153 See Chapter 6.II.2.3.

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as well as through their integration.154 The previous section has shown that the eeas may integrate within the structures of other authorities, notably the Council and the Commission, thereby influencing their conduct and promoting coherence. The coordinating potential of the eeas is even greater in the reverse situation, that is, when the Service integrates other administrations in its own structure. The eeas is indeed capable of ‘absorbing’, through different means, the ­departments of other bodies. The hierarchical relationship between the Service and other authorities may thus be somewhat reversed: while the eeas should ‘assist’ other entities, it might actually control part of their bureaucracy. The Service integrates other bodies’ administrations in two areas where coherence is especially required: crisis response (1), and diplomacy (2). 1 Integration of Crisis Response Structures Crisis response is one of the most fragmented external actions of the Union: crises have a multidimensional nature, and must be addressed by mobilising numerous tools and actors, which, in the eu’s legal system, are separate. The next paragraph identifies the main threats to the coherence of the eu’s crisis response. Then, the attention turns to the institutional solution that the legislature adopted to foster coordination in the eu’s crisis response: the transfer of certain csdp bodies from the Council to the eeas. This solution, though promising, is insufficient. Greater coordination may come through an innovation introduced in the practice – i.e. the ‘Crisis Platform’, an eeas structure in which Council and Commission departments participate. The last paragraph explores the potential and limits of this peculiar organ. 1.1 Fragmentation of the eu’s Crisis Response The concept of ‘crisis’ is notoriously blurred. For the purpose of the current analysis, one may term it as an event that threatens the security of the eu and of its partners.155 There are several policies of the Union that contribute to respond to crises and foster security. On the one hand, there are noncfsp policies, such as humanitarian aid, international cooperation, civil protection, and  police cooperation. On the other hand, there are cfsp actions, notably the Common Security and Defence Policy, which provides the eu with  an  ­operational capacity to conduct missions outside the Union for 154 See Chapter 2.II.4.2. 155 Admittedly, the concept of ‘security’ is polysemic too, but it would not seem indispensable, for the purpose of the present analysis, to discuss it in depth. Cf. European Security Strategy (n 51 p 23).

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­ eace-­keeping, ­conflict prevention and, generally, ‘strengthening international p security’ (­Article 42(1) teu).156 These different policies are functionally intertwined. The eu may foster ­security by conducting a peace-keeping mission (csdp), by giving financial support to the judicial authorities of other countries (international cooperation), and by providing disaster relief (humanitarian aid and civil protection). Primary law acknowledges this interconnection, to the extent that the preservation of peace, the prevention of conflicts and the strengthening of ­international security constitute objectives transversal to the external action (Article 21(1)(c) teu).157 eu institutions are aware of this interconnection. The European Security Strategy explicitly recognises that ‘the challenge now is to bring together the different instruments and capabilities: European assistance programmes and the European Development Fund, military and civilian capabilities from Member States and other instruments’.158 The Joint Communication of the High Representative and the Commission on the eu’s comprehensive ­approach to external conflict and crises (2013) confirms that the relevant actors should work ‘in a joined-up and strategic manner’ and ‘across eu institutions and with Member States’.159 However, this is easier said than done. The responsibilities for managing the different instruments available to the Union remain scattered among a number of actors. There are two divides, in particular, that affect the coherence of crisis management in practice. The first is internal to the Common Security and Defence Policy, as it relates to the distinction between civilian and military operations. They are indeed different in financial terms, since the former are paid for by the eu budget, while the latter are financed through the contributions of the Member States. And, more importantly, these missions are separated from a hierarchical perspective, since they are led by different bodies. Unsurprisingly, these arrangements have already led to overlapping of activities and inefficiencies when a civilian and a military mission operated in the same scenario.160 156 A more ample list of tasks is contained in Article 43 teu. 157 Cf. Parliament v Council, C-130/10 (n 145 p 49), paras 61–62. 158 European Security Strategy (n 51 p 23), at 13. 159 JOIN(2013) 30 final. See also High Representative, ‘The European Union in a changing global environment’ (n 14 p 241), at 18–19. 160 See Hylke Dijkstra, Policy-Making in eu Security and Defense: An Institutional Perspective (Palgrave Macmillan 2013), at 117; Arjen Boin, Magnus Ekengren and Mark Rhinard, The European Union as Crisis Manager: Patterns and Prospects (Cambridge University Press 2013), at 79. In addition, one may note that there may be coordination problems involving

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Secondly, there is a cleavage between the csdp and the rest of the external action, particularly the non-cfsp field. Non-cfsp actions, as noted above, are generally managed by the Commission, which disburses international cooperation and humanitarian aid funds, and maintains contact with local disaster management authorities.161 csdp operations, on the other hand, are implemented by the Member States, the Council, and the eeas. When a mission is launched, a Council preparatory body – the Political and Security Committee – ensures the political control.162 Under the Committee’s control, two bodies provide the strategic direction of the operations: the Civilian Planning and Conduct Capability, for civilian crisis management missions, and the eu Military Committee, for military ones. The framework is completed by two other bodies: the eu Military Staff, which advises the Military Committee, and the Crisis Management and Planning Directorate, which plans and reviews crisis management operations.163 Before the Lisbon reform, these bodies were part of the Council. The creation of the eeas constituted an occasion for a rationalisation of the institutional structure of the eu’s crisis response, especially in the csdp domain, as shown in the next paragraph. 1.2 Integration of csdp Bodies in the eeas Structure The creation of the post of High Representative and of the eeas changed the institutional framework of the eu’s crisis response. Starting from the ­assumption that the hr ‘must be in a position to conduct the cfsp/csdp’,164 eu States agreed that the eeas should have chaired the Political and Security Committee165 and should have absorbed some csdp bodies (Civilian Planning and Conduct Capability, Military Staff and Crisis Management and Planning Directorate).166 Decision 2010/427 ratified this transfer. One may hypothesise that the transfer of several csdp organs to the eeas is likely to rationalise the management of the eu’s crisis response and its coordination with the rest of the external action. the eu Delegation, see Martina Spernbauer, eu Peacebuilding in Kosovo and Afghanistan: Legality and Accountability, Studies in eu External Relations (Brill | Nijhoff 2014), at 217. 161 Decision 2013/1313 (n 83 p 77), Art. 16(3)(a). 162 Article 38 teu. 163 See further Sara Gradilone, ‘Profili istituzionali della psdc’ in Alessandra Lang and Paola Mariani (eds), La politica estera dell’Unione europea: inquadramento giuridico e prassi a­ pplicativa (Giappichelli 2014), at 95–97. 164 Progress Report on the eeas (n 10 p 3), Annex i, para 7. 165 See Declaration 9 annexed to the Final Act of the Intergovernmental Conference which Adopted the Treaty of Lisbon, oj 2010 C 83/335. 166 Presidency report on the eeas (n 130 p 265), para 7.

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Yet, this institutional reshuffle is not without flaws. The eeas was not given the ability to direct military operations, which remain under the responsibility of a Council department (the Military Committee), which was not transferred to the eeas. The persisting separation of civilian operations (led by the eeas) and military operations (led by the Council) does not seem conducive to increased coherence between the two strands of the csdp. Even the departments that have been transferred to the eeas might not be entirely integrated in the Service’s structure. Some Member States accepted the transfer of crisis management structures to the eeas under a condition: that these structures ‘form an entity placed under the direct authority and ­responsibility of the High Representative’.167 The rationale for this concern is apparent: by placing crisis management structures directly under the High Representative, the Member States sought to prevent the eeas leadership from interfering with csdp matters. Such a solution would have reinforced the control of the Council on csdp bodies, even when they had been formally transferred to the Service. This view prevailed during the ‘quadrilogue’, to the extent that Article 4(3) of Decision 2010/427 stipulates that csdp structures are ‘placed under the d­ irect authority and responsibility’ of the hr, and that their ‘specificities’ must be respected. Catherine Ashton interpreted Article 4(3) literally, and placed crisis management structures under her direct responsibility, to the extent that they were not subject to the authority of any eeas official. This solution did not seem satisfactory: the separation between csdp structures and the rest of the eeas was likely to hinder the coherence of the Service’s action, and, a fortiori, the coherence of eu crisis management as a whole.168 Federica Mogherini seems to have acknowledged this problem: she fully integrated the Crisis Management and Planning Directorate, and the Civilian Planning and Conduct Capability, in the eeas hierarchy, placing them under the authority of a Deputy Secretary-General of the Service. This solution, although not entirely in line with the letter of Article 4(3) of Decision 2010/427, appears appropriate. Considering that a rigid separation of crisis management structures from the other eeas departments is conducive to inefficiencies and incoherence, one may argue that a teleological interpretation of the Decision 2010/427 – in light of the principle of coherence – may justify Mogherini’s choice. Even Federica Mogherini, in any event, did not dare to integrate the military component into the Service’s structure. The Military Staff (which 167 Ibid. 168 Cf. Natividad Fernández Sola, ‘La reforma pendiente del Servicio Europeo de Acción ­Exterior y sus implicaciones en la política de seguridad de la Unión Europea’ (2013) ­Revista del Instituto español de estudios estratégicos 1, at 14.

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a­ dvises the Council’s Military Committee) remains directly subordinated to the High Representative. This arguably reinforces the distinction (and probably weakens the coordination) between military and civilian components. In any event, the main limit of the reform of the eu’s security management structure performed with the establishment of the eeas is that it focuses on the intergovernmental dimension, but does not create bridges with the ‘­supranational’ one. Decision 2010/427, in fact, is silent about the eeas’s role in ­respect of the non-cfsp aspects of crisis response. hr Catherine Ashton tried to fill this gap, by setting up the eeas’s ‘Crisis Platform’, which is discussed below. 1.3 The Crisis Platform: Integrating ‘Relevant’ Services The persisting fragmentation of the policy and institutional framework of the eu’s crisis response means that the hr and the eeas must develop ‘creative’ solutions to promote coordination in this field. hr Catherine Ashton addressed this problem by setting up new structures that should ensure a ‘comprehensive approach’ to crisis response. In December 2010 the High Representative appointed Agostino Miozzo, a former official of the Italian civil protection, as head of a new eeas Managing-Directorate, called ‘Crisis Response & Operational Coordination’. This Managing-Directorate did not outlive Ashton’s term, since Federica Mogherini merged it with other departments. The crisis response system that Miozzo set up, at any rate, remained in place. It would seem that the eeas’s crisis response system replicates, at the eu level, the solutions adopted by Italian authorities in the civil protection field.169 The choice of this national model as a reference seems to be motivated, not only by Miozzo’s experience, but also by functional and institutional similarities between Italian civil protection and the eu’s crisis management. Both systems serve to mobilise civilian and military resources to respond to crises.170 Because of the multi-dimensional nature of the crises they face, both systems are managed by several authorities, situated in different executive organs and at different levels.171 169 Giulia Tercovich, ‘Towards a Comprehensive Approach: The eeas Crisis Response ­System’ (2014) 22 Journal of Contingencies and Crisis Management 150, at 152. 170 One may note, at any rate, that the eu system has broader substantive scope, since it ­addresses, not only civil protection, but also defence. The Italian system, on the other hand, has broader geographical scope, since it concerns domestic events, as well as ­external ones. 171 Cf. Mauro Gatti, idrl in Italy: A Study on Strengthening Legal Preparedness for International Disaster Response (IFRC 2015) accessed 19 December 2015, at 21–26.

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The core element of the Italian crisis response structure is a coordinating body, called Operational Committee of the Civil Protection.172 This body is non-permanent, since it convenes in the aftermath of catastrophes and has variable membership, because it is formed by the representatives of all the main authorities involved in disaster response.173 Nonetheless, the Committee clearly has a leader, since it is convened and chaired by the Civil Protection Department, an administration under the responsibility of the prime minister. Through the Committee, the Civil Protection Department may effectively ­coordinate crisis response, by ensuring the ‘unitary direction’ of disaster management operations, without directly adopting legal acts. It is for the single ­authorities participating in the Committee, in fact, to adopt the measures that are agreed therein. The Operational Committee may thus serve ‘as a structure to ensure and force constructive collaboration’.174 The Italian Operational Committee is emulated by the ‘Crisis Platform’, which is the ‘cornerstone’175 of the eeas’s crisis response system. Like the Italian Operational Committee, the Platform is a non-permanent body, which operates on ‘an ad-hoc basis’ in response to a crisis. Since its establishment in 2011, the Platform has been activated in numerous occasions – for instance, during the crises in Mali, the Central African Republic, Syria, Yemen, and Libya.176 The Platform has variable membership, since it includes the ‘relevant’ services of the eeas (e.g. csdp structures), of the Commission (e.g. dg Echo), and of the Council (e.g. Military Committee), depending on the characteristics of a particular crisis. The eeas leads the Platform’s activities, since its meetings are convened and chaired by the High Representative or by the eeas ­Secretary-General. This suggests that the Platform is not simply an ‘inter-service structure’,177 but 172 It is worth noting that the Italian system is quite complex. It is neither possible nor ­useful to analyse it in detail. See further Italian Law 225/1992, Official Journal of the Italian ­Republic, n. 64, 17 March 1992, and subsequent modifications. 173 The Committee also comprises any entity that is ‘invited’ because of its ‘interest in specific emergencies’, see Decree of the President of the Council of Ministers, 8 August 2013, Official Journal of the Italian Republic, n. 244 17 October 2013, Article 2 (translation by the author). 174 oecd, oecd Reviews of Risk Management Policies: Italy 2010 (oecd 2010)accessed 2 October 2015, at 36. 175 Agostino Miozzo, speech at the Institute of International and European Affairs, 8 March 2012, event ‘eu Crisis Response: From Pakistan to Libya’, available ataccessed 19 December 2015 accessed 12 November 2015. 176 eeas Review (n 13 p 3), at 5. 177 The definition is found in Steven Blockmans, Fit for Purpose? The European External ­Action Service One Year On (Oxfam 2012), at footnote 13.

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an organ of the eeas, in which other services may participate. Finally, like the Italian Operational Committee, the eeas’s Platform performs a coordinating function. Its general aim is to define the objectives for the management of a given crisis and to help in defining options and shape decision-making. Nonetheless, the Platform cannot exercise decision-making powers, since they belong, under the Treaties, to the bodies that compose it (notably, the Council and the Commission).178 The content of the eeas’s ‘Suggestions for crisis management procedures for csdp crisis management Operations’ (hereinafter: Suggestions) indicates that the Platform may be an effective tool for the coordination of the eu’s crisis response.179 According to the eeas, the conclusions of the meetings of the Platform, once endorsed by the hr or by the eeas Secretary-General, should be considered as instructions to the ‘services concerned’.180 This arguably means that, in the intentions of the eeas, the conclusions should be binding on all the services that participate in the Platform, including those of eu institutions. If that were the case, the Platform would be, at the same time, part of the eeas and functionally superordinate vis-à-vis Commission and Council departments. A functional integration of the institutions’ administrations within the eeas’s Platform would not raise serious issues in terms of the preservation of conferred powers. It is true that the Platform is part of the eeas and that, by issuing instructions for the administrations of eu institutions, it would restrain their margin of manoeuvre de facto (thereby interfering with the exercise of conferred powers). However, the extent of such interference should not be overemphasised. According to the eeas’s ‘Suggestions’, the conclusions of the Platform are ‘agreed’ upon by all the services involved – hence, they are approved by the administrations concerned. In addition, one may recall that the principle of coherence, enshrined in Articles 21(3) teu and 7 tfeu, requires eu institutions to ensure the synergy of their actions. If one takes into account the (severe) need for coherence in eu crisis response, a (modest) interference with the exercise of conferred powers appears acceptable. The problem with the Platform is political, more than legal. eu institutions are unlikely to expressly accept the Platform’s interference with their administrations. The Council Members look at crisis response coordination as a means to co-opt ‘Commission instruments into Member State-driven ­crisis 178 Suggestions for crisis management procedures for csdp crisis management Operations, Council doc. 7660/2/13, at 13 and 40. 179 Ibid. 180 Id., at 41.

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­responses’.181 Yet, they are not willing to relinquish the direction of military ­activities, as demonstrated by their decision not to transfer the Military Committee to the eeas.182 One may suppose, therefore, that they are unlikely to ­enable an eeas structure, such as the Platform, to give instructions to the ­Military Committee. Similarly, the Commission does not seem enthusiastic about the eeas’s (possible) leading role during crises. The Directorate-­General Humanitarian Aid and Civil protection, in particular, appears sceptical about the Platform, either because it is jealous of its autonomy or because it fears that the eeas may use it to favour the pursuit of political priorities over ­humanitarian principles.183 It emerges from the analysis that the Crisis Platform has significant coordinating potential, which, for the time being, does not seem to be fully e­ xpressed. The precedent of the Italian civil protection suggests that the ­continuous ­interaction in a coordinating organ – such as the Crisis Platform – may enable the coordinator to get ‘on top of the coordinated people around the table’184 and eventually ensure coordination. Hence, one may not exclude that the eeas might fully exploit the potential of the Platform, at some point in the future, even in the absence of changes in the law. 2 Integration of Diplomatic Structures in eu Delegations The integration of coordinated authorities in the structure of the coordinator, as noted in Chapter 2, is a powerful instrument for the promotion of policy coherence. In the case of crisis response, the integration between the eeas and other administrations is incomplete, as seen above, given the deficiencies of legal arrangements and the distrust of the actors involved. The legislature has ensured a much more effective integration in another sector where coherence is particularly important: diplomacy. The 139 diplomatic missions of the eu – the Delegations – constitute one of the main components of the eeas. The analysis has already elucidated part of their functions, regarding the exchange of information with the embassies of the Member States and the chairing of diplomatic meetings.185 For the sake 181 Alexander Mattelaer, ‘The Empty Promise of Comprehensive Planning in eu Crisis ­Management’ (2013) 18 European Foreign Affairs Review 125, at 132. 182 See Chapter 6.II.1.2. 183 Cf. Federico Casolari, ‘The External Dimension of the eu Disaster Response’ in Andrea De  Guttry, Marco Gestri and Gabriella Venturini (eds), International Disaster Response Law (tmc Asser | Springer 2012), at 152. 184 Agostino Miozzo, speech at the Institute of International and European Affairs (n 175 p 276). 185 See Chapters 5.III.2 and 6.I.1.3.

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of simplicity, the study has assumed that they are offices of the eeas, since they are organically attached to the Service. However, this perspective permits to appreciate the Delegations’ nature and role only partially. Delegations are composite bodies, which integrate not only eeas staff, but also the personnel of other authorities, notably the Commission. Notwithstanding their internal division, Delegations can ensure coherence in eu diplomacy, thanks to the pragmatic approach to division of power adopted by the legislature. To explain the peculiar characters of eu Delegations from an ‘internal’ ­perspective (that of eu law), one should firstly adopt an ‘external’ viewpoint, and define them in terms of international law. The next paragraph discusses how the eu built, over the years, a network of diplomatic missions that, from a diplomatic law perspective, closely resemble the embassies of sovereign States. This success of the Union, however, is threatened by a possible incoherence: as shown in the subsequent paragraph, the institutional dichotomy of the external action (cfsp vs non-cfsp) may potentially render eu Delegations incapable of performing their primary function, i.e. speaking on behalf of the entire Union. Then, the attention turns to the solution put into place to solve this problem: the legislature enabled a peculiar eeas official, the Head of ­Delegation, to exercise authority over the entire Delegation. Notwithstanding its concern for coherence, the legislature curiously omitted to integrate into the eeas’s structure the other para-diplomacies of the Union (dg Echo missions and Special Representatives), whose nature is discussed in the last paragraph. 2.1 The State-like Diplomatic Relations of the eu The conduct of diplomatic relations is a traditional prerogative of States. ­Historically, it derives from the right of monarchs to exchange personal representatives, who spoke on their behalf vis-à-vis other sovereigns.186 In modern times, the conduct of diplomatic relations is performed mainly through the establishment of permanent offices, called diplomatic missions or ‘embassies’. It is customary to use the expression ‘right of legation’ to refer to an international subject’s ability to set up a diplomatic mission (‘active legation’) or to receive it (‘passive legation’). The exchange of diplomatic missions and their treatment are regulated by international customary law, codified (and marginally developed) by the Vienna Convention on Diplomatic Relations of 1961.

186 Ludwik Dembinski, The Modern Law of Diplomacy: External Missions of States and I­ nternational Organizations (Martinus Nijhoff, 1988), at 29.

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As acknowledged by Article 3 of the Vienna Convention 1961, the diplomatic mission performs five main functions.187 First, representing the sending State in the receiving country, with respect to international relations and internal disputes alike.188 The diplomatic mission represents the sending State in its entirety, and not just one of its authorities (such as a region or a ministry). This characteristic is often referred to through the Latin expression jus represaentationis omnimodo (the right of overall representation). The function of representation has, as its corollary, the second function: negotiating with the government of the receiving country. This means, in practice, that the head of the diplomatic mission is considered as a representative of his/her State (vis-àvis the receiving country), for the purpose of international negotiation, without the need to produce full powers.189 The third function consists of p ­ rotecting, in the receiving country, the interests of the sending State and of its nationals. This function encompasses the ability to conduct consular protection and ­assistance, and to participate in the exercise of diplomatic protection. The fourth function complements the third, since it consists of promoting friendly relations between the sending State and the receiving State. It refers, in particular, to the promotion of ties in the economic, scientific, and cultural domains. The last function may be labelled as ‘information’: ascertaining conditions and developments in the receiving State, and reporting thereon to the sending State. Diplomatic communications are not disclosed to the public, not even in the home country,190 for the sake of avoiding scandals, such as WikiLeaks.191 Hence, communications from diplomatic missions to their capitals can be ­encoded and must not be intercepted by the State of accreditation.192 The political developments of the 20th century eroded the States’ ­monopoly over the right of legation. International organisations often establish missions in order to implement their policies, and receive the missions of other s­ ubjects,

187 Notwithstanding its limits, the list contained in Article 3 of the Vienna Convention 1961 has the advantage of being sufficiently accurate, see Attila Tanzi, ‘Relazioni Diplomatiche’, Digesto delle discipline pubblicistiche (Utet 1996) 122, at 130. 188 See Jean Salmon, Manuel de droit diplomatique (Bruylant 1994), at 112–113. 189 Cf. Article 7(2) of the Vienna Convention 1969 (n 61 p 27). 190 Salmon (n 188 supra), at 116. 191 David Leigh, ‘us Embassy Cables Leak Sparks Global Diplomatic Crisis’ The Guardian (28 November 2010) accessed 18 November 2015. 192 Vienna Convention 1961 (n 121 p 228), Article 27(1). The media used to transmit information from the missions to national administrations are commonly known as diplomatic ‘­cables’ or ‘telegrams’.

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to liaise with them. In some cases, the founding treaties of i­nternational ­organisations empower them to exercise the right of legation. For instance, Article 16 of the protocol on the privileges and immunities of the Communities implicitly recognised their passive right of legation, by affirming that ‘the Member State in whose territory the Communities have their seat shall ­accord the customary diplomatic immunities and privileges to missions of third ­countries accredited to the Communities’.193 More often, the right of legation is an implied power. If an international organisation is conferred competences to conduct external relations in a given area, it must also be able to set up the organs that allow for conduct of such relations in practice.194 The European Communities constitute, again, an example in this sense. Although the ­Treaties did not expressly empower the Communities to exercise the right of ­active legation, the need for permanent representations soon became ­apparent. The Coal and Steel Community opened a ‘liaison office’ in the uk in 1954, and the eec ­Council evaluated the opening of other eec Delegations in the s­ ixties. The Communities did not set up other Delegations, because some Member States opposed the creation of European ‘diplomatic’ posts. However, the urge for permanent representation in third countries was such that n ­ either the Council nor the M ­ ember States ever opposed the creation of Commission ­Delegations.195 It was generally accepted, at any rate, that C ­ ommission Delegations functioned de facto as representatives of the Community as a whole.196 Notwithstanding the analogy between the right of legation of States and international organisations, a crucial difference remains between the two 193 Protocole sur les privilèges et immunités des Communautés européenne, oj 1967 152/13 (translation by the author). 194 Cf. Charles Reichling, Le droit de légation des Communautés européennes (Editions uga 1964), at 26. 195 Besides the Delegations, the Commission opened ‘offices’ and ‘representations’ that represented the institution (and the Community) in countries that some, or all, ec Members did not recognise as States (West Bank and Gaza Strip, Kosovo, Hong Kong, Macao and Taiwan). For the sake of brevity, the specific characteristics of these offices are not addressed in this book. See further Elisa Baroncini, Il treaty making power della Commissione Europea (Editoriale scientifica 2008), at 210–224. 196 This function was shared, in a few cases, with the representatives of the Council, see ­Maria A Rucireta, ‘Aspetti del c.d. “diritto di legazione” attivo e passivo delle Comunità europee’, Annali istituto di studi europei Alcide de Gasperi (1987), at 137. More generally, on the making of the Commission’s ‘diplomacy’, see Caterina Carta, The European Union ­Diplomatic Service: Ideas, Preferences and Identities (Routledge 2013), at 55–86; David Spence, ‘The ­European Commission’s External Service’ in Michael Smith, Stephan Keukeleire and Sophie Vanhoonacker (eds), The Diplomatic System of the European Union: Evolution, Change and Challenges (Routledge 2015).

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c­oncepts. Whereas States may set up and receive diplomatic missions by virtue of their sovereignty (and full competence), international organisations do so on the basis of their powers – which, being based on a conferral of ­competences – are limited. This prevents the missions of international organisations from performing fully-fledged diplomatic functions. As noted by Pescatore in 1961, the European Communities pursued economic objectives, and their external competence regarded the commercial and nuclear domains; their Delegations, therefore, were ‘specialised missions’, which fostered the interests of the common market and of the nuclear industry.197 It is common to speak, in the case of international organisations, of a functional right of legation. The distinction between the ‘full’ right of legation of States (based on sovereignty), and the ‘functional’ right of legation of international organisations (based on conferred competences), suggests that the rules applicable to the former cannot be applied by analogy to the latter. This means that the privileges and immunities that apply to the States’ ­diplomatic missions, by virtue of customary law and the Vienna Convention 1961, do not automatically apply to the missions that international organisations send or receive. The immunities of missions that represent third States before an international organisation (passive legation) are usually regulated by the agreement that establishes the organisation, or by an agreement between the organisation and the host State. The conferral of immunities to the missions of international organisations (active legation) is usually regulated either by the internal law of the country that receives the mission, or through an international agreement between this country and the international organisation.198 In practice, the officials of international organisations are usually granted immunities for the acts performed in the exercise of their functions (so-called ‘functional immunities’), and not full diplomatic immunities.199 197 Pierre Pescatore, Les relations extérieures des communautés européennes : contribution à la doctrine de la personnalité des organisations internationales (Collected Courses of the Hague Academy of International Law 1961), at 192. 198 In fact, the practice and opinio juris on the immunity of international organisations and of their organs do not seem to suggest in a straightforward manner that they enjoy ­immunities by virtue of customary law, cf. Aaron I Young, ‘Deconstructing International Organization Immunity’ (2012) 44 Georgetown Journal of International Law 311, at 355; Michael Wood, ‘Do International Organizations Enjoy Immunity under Customary Law?’ in Niels Blokker and Nico Schrijver (eds), Immunity of International Organizations (Brill | Nijhoff 2015), at 37–50. 199 Cf. Amerasinghe (n 73 p 75), at 341–343. Daniele Gallo, ‘Status, privilegi, immunità e tutela giurisdizionale dei funzionari delle organizzazioni internazionali’ in Angela Del ­Vecchio

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One may wonder whether the rules applicable to international organisations may apply to the post-Lisbon European Union too. At first sight, one may hypothesise that the Union, being an international organisation, should exercise only a functional right of legation. This consideration may seem to be confirmed by the practice relating to privileges and immunities. As in the case of the European Communities, it is an international agreement – the Protocol on the privileges and immunities of the eu – that confers privileges and immunities to the missions of third States accredited to the Union.200 Similar considerations apply to active legation. Whereas the diplomatic missions of States enjoy principles and immunities by virtue of customary law, eu Delegations are given privileges and immunities either by an internal act of the receiving State201 or, more often, through an international agreement concluded by the Union and the receiving State (the so-called ‘establishment agreement’).202 However, the practice is more complex than it would appear at first sight. For decades, the European Commission sought the recognition of the Community as a State-like subject in diplomatic terms. It has, in particular, requested and progressively obtained the application of the norms of the Vienna Convention of 1961 to its Delegations.203 This means that Commission Delegations were normally treated de facto as the diplomatic missions of a State.204 ­Decision

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(ed), Diritto delle organizzazioni internazionali (Edizioni scientifiche italiane, 2012), at 297–301. Cf. Protocol (no. 7) on the privileges and immunities of the European Union, oj C 2010 83/266, Article 16: ‘the Member State in whose territory the Union has its seat shall ­accord the customary diplomatic immunities and privileges to missions of third countries ­accredited to the Union’. This is the case of Switzerland, us and Canada, see Baroncini (n 195 p 281), at 195–200. The Commission has indeed concluded several such agreements in the past (on behalf of the Communities), see Baroncini (n 195 p 281), at 202–210. Establishment agreements usually are not published in open sources. One of the few ­exceptions is the Agreement between the Government of New Zealand and the Commission of the European Communities on the establishment and the privileges and immunities of the Delegation of the Commission of the European Communities in New Zealand, signed on 10 March 2004, un Treaty Series vol. 2524. An excerpt of the agreement with South Sudan is reproduced in Ramses A Wessel, ‘Immunities of the European Union’ in Niels Blokker and Nico Schrijver (eds), Immunity of International Organizations (Brill | Nijhoff 2015), at 149. The main exception seems to be Canada, which granted to the staff of the Commission Delegation the immunities that normally apply to the staff of international organisations (i.e. functional immunities), see the Canadian European Communities Privileges and Immunities Order, C.R.C., c. 1308, para 4(b): ‘officials of the [European ­Communities],

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2010/427 reinforces the similarity between Delegations and States’ embassies, by stipulating that the High Representative ‘shall take’ the necessary measures to ‘ensure’ that host States grant the Union Delegations, their staff and their property, privileges, and immunities ‘equivalent to those referred to in the ­Vienna Convention on Diplomatic Relations’.205 This arguably means that the hr must ensure that Delegations enjoy full diplomatic privileges and ­immunities. The Commission also sought symbolic recognition, by requesting, at least since 1983, that the head of Delegation be explicitly recognised by the receiving country as an ‘ambassador’,206 and that he be classed among the States’ ­representatives in the ‘Diplomatic list’ (which contains the order of ­precedence of diplomatic representatives in a State’s capital, in the order of the date of taking up their function).207 Third States generally granted the Commission’s requests.208

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other than senior officials, shall have in Canada, to such extent as may be necessary for the p ­ erformance of their functions, the privileges and immunities specified in Section 18 of the Convention [on the Privileges and Immunities of the United Nations]’. The ­applicability of this law after the Lisbon reform was confirmed by Chantal Schryburt, ­Office of p ­ rotocol, Foreign Affairs and International Trade Canada, in an email to the author of 14 October 2011. Decision 2010/427 (n 132 p 94), Article 5(6). It is presumable that this provision does not apply retroactively, i.e. to the Delegations that already exist. The fact remains, at any rate, that, in principle, new Delegations will be treated as diplomatic missions (or should not be opened at all). Luigi Boselli, Guide diplomatique pratique à l’usage des fonctionnaires en poste dans les délégations de la Commission de la C.E. (European Commission 1992): ‘A partir de 1983, le rang d’ambassadeur est explicitement mentionné dans les lettres de créances’. Id.: ‘Aucune assimilation à une organisation internationale n’étant acceptable, tout classement, même en première position dans la liste des représentants de ces organisations, qui suit normalement, dans une deuxième partie, la liste du corps diplomatique (missions d’Etat) doit être refusée sans conditions’. Cf. Art. 16 of the Vienna ­Convention 1961 (n 121 p 228). The receiving country generally placed the Commission Delegation at the bottom of the list of States – whereas diplomatic missions are normally listed in the order of their ­accreditation (from the oldest to the newest). See, for example, the order of precedence of the diplomatic missions accredited to the us as of 3 December 2015, which lists the eu’s ambassador (consistently with the pre-Lisbon practice) among the ‘Chargés d’affaires’ of other States; that is, after the ambassadors of other States, and before the representatives of international organisations, seeaccessed 18 December 2015.

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The Member States of the Communities, on the contrary, have never been enthusiastic about the recognition of the ‘diplomatic’ status of the Delegations: not only did they originally oppose the opening of Delegations of the Communities, but they also disputed the use of State-like procedures for the accreditation of third States’ missions to the ec.209 What is more, the Member States expressed concern about the embassy-like status of Commission ­Delegations. To appease them, the Commission discouraged its Heads of ­Delegation from openly making use of the title of ‘ambassador’,210 and unilaterally declared that they would remain last in the Diplomatic lists, to avoid preceding the ambassadors of eu Members.211 The Commission justified its attempts at mimicking the diplomatic relations of States by arguing that the Community was different from other international organisations, because of the extent of its external powers, its internal structure, and the direct effect of its internal law.212 However, this argument was not unquestionable: the Delegations of the Commission, as noted by P ­ escatore, were ‘specialised missions’, which fostered sectorial interests. Although the scope of the Community’s action expanded over time, it never came to cover completely the field of foreign policy proper. In that area – the Common Foreign and Security Policy – the European Union was competent, and its e­ xternal position was represented, not by the Commission and its ­Delegations, but by the Council Presidency and its embassies. In other words, the ec exercised a functional right of legation. The Commission’s argument was perhaps hybristic in the pre-Lisbon framework, but may be not entirely unjustified at present, especially with respect to the ‘active’ side of the eu’s legation. In principle, the eu’s action is still ­constrained by the principle of conferred competence; from an abstract perspective, therefore, the eu’s legation is still ‘functional’. In practice, the eu’s field of action is so wide that Delegations are likely to perform all diplomatic functions. The merging of the ec and of the eu, operated by the Lisbon Treaty, 209 See Extraordinary session of the Council, Luxembourg, 17 to 18 and 28 to 29 January 1966, Final Communiqué of the extraordinary session of the Council, Bulletin of the European Communities, March 1966, 3–66, pp. 5–11. 210 Doris Dialer and Frauke Austermann, ‘Giving the eu One Voice Abroad: The European Union Delegations’ in Doris Dialer, Heinrich Neisser and Anja Opitz (eds), The eu’s ­External Action Service: Potentials for a One Voice Foreign Policy (Innsbruck University Press 2014), at 103. 211 See eeas, eu Delegations’ Guide (n 77 p 253), section ‘Protocol: Diplomacy and Protocol’, para 3.1.3.a. 212 See Boselli (n 206 p 284).

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enables Union Delegations in third countries to represent the entire Union (Article 221(1) tfeu), in cfsp and non-cfsp areas alike. As a consequence, the Delegation does not appear as a ‘specialised mission’: like the embassies of a sovereign State, the Delegation deals with ‘political’ and ‘technical’ issues at once, thereby exerting the jus represaentationis omnimodo, and negotiating on any possible issue. There are indeed few (if any) aspects of international affairs that do not touch upon an eu policy, and over which the Union may not negotiate with third parties. Moreover, Delegations, like embassies, gather information relating to disparate issues, ranging from economic affairs to the protection of fundamental rights in third countries.213 It is understood that Delegations promote peaceful relations between the eu and third countries, for instance via development cooperation. They even play an increasing role in the protection of eu citizens abroad.214 It is opportune to point out that Delegations are functionally similar to ­diplomatic missions, not consular ones. The tasks of the two offices are indeed different, as explicitly recognised by the Vienna Conventions of 1961 and 1963: while the embassy represents the State in government-to-government relations, the consular office performs administrative tasks (such as providing citizens with travel documents) and liaises with local authorities.215 To be sure, an embassy can perform consular functions too, if the sending State so desires,

213 Cf., e.g., the Local eu Statement on demolitions and forced evictions, by the eu ­Delegation to Azerbaijan, 12 August 2011, available on the website of the eu Delegation to  Azerbaijan, accessed 18 December 2015. 214 See Chapter 5.Iv.2. 215 According to Kerres and Wessel, ‘the tasks of eu Delegations are limited compared to national embassies’, see Kerres and Wessel (n 163 p 235), at 37. I respectfully disagree with this argument. These authors compared the tasks of eu Delegations with both diplomatic and consular tasks, see id., at 17–19. Their analysis demonstrates that Delegations cannot perform consular tasks (Provide eu citizens with travel documents, Issue visas to non-eu citizens; provide consular assistance; represent eu citizens before court; safeguard interests in case of succession mortis causa; assist minors and other persons lacking full capacity; assist during investigation of vessels). In my view, this finding is not conclusive, since the performance of consular tasks is not one of the typical tasks of diplomatic missions (see n 216 p 287). There is only one diplomatic task that, according to Kerres and Wessel, Delegations are unable to perform, that is, protecting eu citizens (consular and diplomatic protection). I partially disagree with them on this aspect too, since Delegations are increasingly involved in the protection of European citizens (though their potential is not fully exploited yet), as seen in Chapter 5.Iv.2.

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but that is neither its primary purpose, nor a necessity:216 there are indeed embassies that do not perform consular functions in practice.217 The functional similarity between eu Delegations and States’ embassies may have consequences in terms of both international and eu law. From an international law perspective, one may argue that eu Delegations, being functionally similar to the missions of a State, should be treated like the diplomatic missions of sovereign States. In the first place, the host country should place the Head of Delegation in the diplomatic order of precedence as if he/she were the ambassador of a State. The eeas, in fact, is determined to engage with host countries to establish the ‘principle of equality with States’, to make sure that the local principle of precedence also applies to eu Ambassadors.218 In some cases, the eeas has succeeded, to the extent that eu representatives have sometimes preceded those of eu Members.219 Secondly, and more importantly, the 216 The Vienna Convention 1961 (n 121 p 228) stipulates, at Article 3(1), that, the functions of a diplomatic mission consist in representation, protection of interests, negotiation, ­information and promotion of friendly relations (as noted above). Then, Article 3(2) ­acknowledges that ‘nothing in the present Convention shall be construed as preventing the performance of consular functions by a diplomatic mission’. It emerges from the letter of these provisions that there are diplomatic functions, typical of diplomatic missions (listed in Article 3(1)), and consular functions, typical of consular missions (which might be ­performed by diplomatic missions, pursuant to Article 3(2)). 217 For instance, Italy has both an embassy and a Consulate-General in London, and it is the latter that offers ‘consular services’, seeaccessed 18 December 2015. 218 eeas, eu Delegations’ Guide (n 77 p 253), section ‘Protocol: Diplomacy and Protocol’, para 3.1.3.a. Moreover, the eeas argues that ‘the treatment of the eu as an international organisation should not be accepted. Similarly classification outside the list of sovereign States, as a special section on the list, or even in first place in the chapter dedicated to the ­representatives of international organisations should be refused. The eu should be included within the list of sovereign States and by its seniority according to local practice’, id., para 3.4. 219 In 2013, a Head of Delegation, who was first in the order of precedence, accepted the ­position of Dean of the diplomatic corps offered locally (The Dean is the most senior head of mission in a capital in terms of date of taking up functions). This event is quite significant, since the Commission had unilaterally accepted that its representatives were excluded from accepting the honorary position of Dean of the diplomatic corps, as noted in eeas, eu Delegations’ Guide (n 77 p 253), section ‘Protocol: Diplomacy and Protocol’, para 3.1.3.a. In addition, in at least one case, the Head of Delegation was listed among the States’ representatives and came before the representatives of several Member States, see the diplomatic list of Canada, at accessed 18 November 2015. See also Jan Wouters and Sanderjin Duquet, ‘Unus Inter Plures? The eeas, the Vienna Convention and

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host countries should recognise that eu Delegations enjoy privileges and immunities on the basis of customary diplomatic law. Most contemporary writers maintain that diplomatic privileges and immunities are based on a ‘functional theory’: in the receiving State the diplomat should be granted such privileges as are necessary for the proper performance of his/her duties.220 Since the duties of the eu’s diplomats are not different from those of the States’ diplomats, they should arguably enjoy the same privileges and immunities, on the basis of the same legal norms (international customs, as codified by the Vienna Convention of 1961). Hence, the aforesaid ‘principle of equality with States’ should be applied in respect of immunities too: ­establishment ­agreements should no longer be necessary. The functional similarity between eu Delegations and States’ diplomatic missions also raises issues of eu law. One may wonder whether eu ­Delegations – which are similar to fully-fledged embassies from an external perspective – are also organised as diplomatic missions from an internal one. While the embassies of States have a single ‘head’ (i.e. the ambassador), that ensures the coherence of the State’s representation, there is the risk that the persisting dichotomy between the cfsp and non-cfsp areas may fragment eu Delegations, thereby delegitimising them as representatives of the Union. This issue is discussed in the next paragraph. 2.2 Risk of Incoherence in eu Delegations From an organisational perspective, Delegations are attached to the eeas, from which they are organically dependent.221 Such attachment derives from the combination of Articles 27(3) teu and 221(2) tfeu, pursuant to which Delegations are placed ‘under the authority’ of the High Representative’. Being ‘under the authority’ of another organ, Delegations do not constitute independent decision-making authorities, but are administrative bodies, that assist the High Representative. Although primary law does not affirm this expressly, Delegations should arguably be part of the administration that assists the High International Diplomatic Practice’ in Jozef Bátora and David Spence (eds), The European External Action Service: European Diplomacy Post-Westphalia (Palgrave Macmillan 2015). 220 Stanislaw E Nahlik, Development of Diplomatic Law: Selected Problems (Collected Courses of the Hague Academy of International Law 1990), at 223–224. Nahlik specifies that some remnants of other theories (the representative and the exraterritorial ones) survive in the Vienna Convention of 1961 (n 121 p 228); in any event, ‘particular stress has been put on the “functional” conception’. Other authors are more tranchant. For instance, Salmon affirms that ‘la Convention de Vienne se réfère nettement à ce critère [fonctionnel]’, see Salmon (n 188 p 280), at 183. 221 Elti v Delegation of the eu to Montenegro (n 4 p 103), para 37.

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Representative under Article 27(3) teu, i.e. the eeas. Article 1 of Decision 2010/427 confirms this reading of primary law by expressly affirming that the eeas is made up ‘of a central administration and of the Union Delegations to third countries and to international organisations’. The General Court upheld this view, arguing in Elti that Delegations are an integral part of the hierarchical structure of the eeas and constitute merely divisions thereof.222 From a functional perspective, however, the situation is more complicated. As noted in the previous paragraph, Delegations perform numerous functions. For this purpose, they must exercise activities that, under eu law, fall within the sphere of responsibility of different authorities, notably the High Representative and the Commission. Article 221(1) tfeu indeed stipulates that ­Delegations ‘represent the Union’, meaning that they represent the whole of it, in cfsp and non-cfsp areas. Hence, Delegations must speak for the Union, thereby exercising the power of external representation. At the political level, this power belongs, not only to the Delegations’ master – the hr – but also to the Commission, onto which Article 17 teu confers the ability to speak for the Union in relation to non-cfsp matters. Similar considerations are applicable to the other functions of eu Delegations. For instance, if the eu’s mission ­conducts a démarche to protest against the violation of human rights, it operates in the cfsp area, but when it conducts a démarche to protect the commercial interests of the Union, it operates in the non-cfsp field (trade policy). This suggests that the Delegation must operate on behalf of both the High Representative and the Commission. Hence, there must be a ‘functional subordination’ of the Union Delegation to both authorities.223 Probably, the simplest solution to solve this problem would have been to transfer Commission personnel working in Delegations to the eeas, either on a permanent basis or on a temporary one. Had this approach been followed, the Delegation would have become a ‘normal’ division of the eeas, which would have had the only peculiarity of working under the authority of the Commission on a regular basis. Yet, one may hypothesise that this solution might have displeased the Commission: after having created and developed eu diplomacy for 50 years, the institution would have been relegated to a secondary role. The discussion conducted before the Lisbon Treaty led in another direction. Most eu Members agreed that the organic attachment of Delegations to the eeas did not necessarily imply that all staff working in the Delegations would need to be members of the eeas: those covering specific policies such as trade and management of financial assistance would continue to come from 222 Id., para 35. 223 Id., para 37.

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the ­services of the Commission.224 Article 5 of Decision 2010/427 reflects this view, stipulating that staff in Delegations comprise Commission staff ‘where appropriate for the implementation of the Union budget and Union policies other than those under the remit of the eeas’. Despite the seemingly restrictive formulation of Article 5, the presence of Commission officials in Delegations is massive. They actually constitute two thirds of staff in eu ‘embassies’ and, in some cases, they are the only staff Delegations have, apart from the Head of Delegation.225 From a formal perspective, the solution envisaged by Article 5 means that Delegations are rather peculiar organs. On the one hand, they are characterised by ‘a two-fold organic and functional dependence with respect to the eeas and the Commission’.226 Hence, they are functionally integrated in the Commission hierarchy. On the other hand, they are departments of the eeas, which integrate Commission officers. They are, in other words, eeas organs that are structurally divided into two sections: one conducts the cfsp (under the authority of the hr/eeas), the other conducts non-cfsp initiatives. This may suggest, at first sight, that Delegations ‘project’ abroad the dichotomy that characterises the management of eu external policies in Europe, as g­ raphically expressed in Table 1 below. If the dichotomy of eu Delegations were complete, their effectiveness would be put into question. Having two separate eu speakers is quite problematic in normal occasions, but may be particularly dangerous in the diplomatic field. The jus repraesentationis omnimodo of embassies is meant precisely to Table 1

eu Delegations and the external action dichotomy

Political level

cfsp

non-cfsp

High Representative

College of the Commissioners Commission Services

Administration eeas Diplomatic mission Management of the external eeas ­action at diplomatic level

Delegation

Commission Services

224 Issues Paper on the European External Action Service, Council doc. 9956/05, Annex ii, para 11. 225 eeas Review (n 13 p 3), at 11. 226 Elti v Delegation of the eu to Montenegro (n 4 p 103), para 46.

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ensure that international subjects speak to each other with a single voice: it would be impossible to conduct international relations on a permanent basis if the receiving State were not certain about the representativeness of its interlocutor. In addition, the Delegation may potentially work in a schizophrenic way, pursuing different priorities at once: while the eeas section promotes a more ‘political’ approach, the Commission staff may pursue its own ‘technical’ priorities. There might even be the conflicts between the two sections of the Delegation, if one sought to perform activities that fall under the responsibilities of the other. In all probability, the dichotomy of eu Delegations would lead to inefficiency, ineffectiveness, and isolation. Third countries would hardly consider addressing an ‘embassy’ that is internally divided. Union Delegations would risk being sidelined, and possibly bypassed through a direct dialogue with the eu Headquarters, or even with the Member States. The dis-unity of eu Delegations would thus risk disrupting the project of eu diplomacy, which the Commission nurtured for half a century. 2.3 The Head of Delegation: A Coherence-maker Such a glum scenario, fortunately, was never envisaged. During the preparatory work on the eeas, the Member States suggested a solution to ensure the coherence of eu Delegations: they should have been modelled after the Member States’ embassies, ‘composed of staff from different home ministries, yet all collectively under the authority of the head of mission’.227 It is no small irony that the Member States, which are historically sceptical about the State-like character of eu diplomacy, suggested that Union ‘embassies’ should be modelled after their own. The State-like solution, at any rate, prevailed. Decision 2010/427 expressly stipulates that ‘the Head of Delegation shall have authority over all staff in the delegation, whatever their status, and for all its activities’. Moreover, he/she is accountable to the High Representative for the ‘overall management’ of the work of the Delegation and for ensuring the coordination of all ­actions of the Union (Article 5(2)). This means that the Head of Delegation has e­ xclusive power to represent the entire Union (in cfsp and non-cfsp areas) in the country where the Delegation is accredited. Moreover, he/she can ­exercise ­hierarchical prerogatives vis-à-vis all the staff working in the Delegation, ­independently from their affiliation. He may define the position of the

227 Progress Report on the eeas (n 10 p 3), Annex i, para 11.

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­Delegation, ­consistently with the instruction he/she receives from headquarters, and send instructions to his/her subordinates.228 In principle, these arrangements may perhaps restrain the Commission’s prerogatives: Decision 2010/427 obliges the Commission to entrust the authority over its personnel to a member of the eeas’s staff (the Head of Delegation). Nonetheless, as in the case of international cooperation, one may surmise that this constraint on the Commission’s prerogatives might be justified by the concern for coherence, which is particularly acute in diplomatic relations.229 The authority over the Delegation, and the exertion of both eeas and Commission powers, seems to render the Head of Delegation effective in ensuring the unity of eu diplomacy. The receiving State has only one ‘phone number’ to call – that of the Union ambassador. Moreover, there is no risk – at least in principle – that the Delegation may behave incoherently, since the Head of Delegation may block the initiatives of any of his/her subordinates, be they eeas or Commission staff. As a former uk ambassador put it: ‘I wish, as a British head of mission, I had had the same powers that a European head of delegation does’.230 One may surmise that the concentration of power in the hands of the eu ambassador is even excessive, particularly in the financial domain. It has already been noted that the implementation of the eu budget is an important task, which is performed by each ‘institution’ of the Union (with respect to administrative expenses), and by the Commission (with regard to operational ones).231 The Financial Regulation prevents institutions from delegating the implementation of their lines of the budget to staff other than their own, at least in principle. Hence, one may expect that eeas officials in Delegations may implement the Service’s administrative budget lines, while Commission staff should authorise expenditure relating to the institution’s administration and to the implementation of eu policies. However, Article 5(4) Decision 2010/427 introduces a derogation to the principle enshrined in the Financial Regulation: ‘the Head of Delegation shall implement operational credits in ­relation to the Union’s projects in the corresponding third country, where subdelegated by the Commission’.232 228 Article 96 of the Staff Regulations (n 26 p 109). 229 Cf. Chapter 6.I.2.3. 230 Nicholas Westcott, eeas Managing Director for Africa, in uk House of Lords, Inquiry on European External Action Service (Questions 233–260) (2013) accessed 10 November 2015, at 4. 231 See Chapters 3.I.3 and 4.II.1.2. 232 See also Art. 56(2) of the Financial Regulation (n 58 p 115).

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This derogation seems motivated, at least in part, by historical considerations: before the establishment of the eeas, the Head of the Commission Delegation had authority over all the expenses of the eu representation. It may have seemed natural to preserve this role when the Head of Commission Delegation was ‘upgraded’ to Head of Union Delegation. The entrustment of financial responsibilities to the Head of Delegation may have a pragmatic rationale too: ensuring that the eu ambassador retains authority over all the aspects of policy implementation. Be that as it may, this arrangement does not appear problematic from a legal perspective. One may hardly see it as an instance of delegation that involves a real margin of discretion, which would be forbidden under the cjeu’s caselaw.233 The Commission delegates the power of financial implementation to the Head of Delegation, but may also withdraw it; what is more, in the course of his/her activities, the eu ambassador must apply the Commission rules for the implementation of the budget, and is subject to the same obligations as any other subdelegated authorising officer of the Commission.234 In other words, Article 5(4) preserves the authority of the Commission with respect to budget implementation, and safeguards the internal Commission procedures for the implementation of the operational expenses.235 The problem with the financial arrangements regarding Delegations is more practical than legal. Differently from the previous Head of Commission Delegation, the new eu ambassador has a more ‘political’ profile, and consequently has more tasks to accomplish. It may be difficult for him/her to effectively discharge his/her duties regarding the implementation of operational expenses, especially because of the complexity of Commission procedures. This may have contributed to discourage some national diplomats, who are not familiar with such procedures, from applying to posts as eu ambassadors.236 There may be difficulties in the implementation of the eeas’s administrative expenses too, which must be implemented only by eeas staff. Since many Delegations have only one or two eeas officials (including the ambassador), ensuring business continuity during absences, holidays, or illness of the Head of D ­ elegations

233 Cf. Meroni v High Authority, Case 9/56, eu:c:1958:7, para 10; See also Edoardo Chiti, ‘An Important Part of the eu’s Institutional Machinery: Features, Problems and Perspectives of European Agencies’ (2009) 46 Common Market Law Review 1395, at 1421. 234 Article 56(2) of the Financial Regulation (n 58 p 115). 235 Cf. Court of Auditors, Opinion No 4/2010 on a proposal for a regulation amending the Financial Regulation, as regards the European External Action Service, oj C 145, 3 June 2010, para 8. 236 This concern was expressed by a national diplomat (interview 21, August 2015).

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can be problematic.237 The eeas has been advocating for a more ‘flexible’ approach to this issue since its creation, but, so far, without success.238 Although the centralisation of power in the hands of the Head of Delegation is generally appropriate, or even excessive, it is possibly insufficient in two specific areas. In the first place, the Head of Delegation may not enjoy sufficient discretion in the distribution of tasks among the Delegations’ staff. Generally speaking, hierarchical superordinate authorities can allocate the workload among their subordinates, but this rule does not fully apply to eu ambassadors. Their subordinates indeed belong to different administrations – the eeas and the Commission – and should consequently carry on duties in policy areas falling within the line of work of the two bodies. The eu ambassador should, in principle, instruct eeas officials to perform eeas tasks, and Commission staff to conduct Commission activities. This state of affairs soon proved to be unsatisfactory, notably because several Delegations are staffed by a very limited number of eeas officials. Hence, in December 2011, the eeas and the Commission adopted a Note to the Attention of Heads of Delegations, regarding the management of staff.239 Soon thereafter, the High Representative and the Commission adopted a Joint Decision on Cooperation Mechanisms concerning the Management of Delegations of the European Union, covering inter alia, the ‘Tasks of Delegation Staff’.240 These instruments allow for a relatively flexible division of labour in Delegations. The Note of December 2011 enables the Head of Delegation to request eeas staff to work on tasks falling within the remit of the Commission (with the exception of the implementation of the Commission’s operational budget). Moreover, the Note and the Joint Decision allow the ambassador to request Commission staff to ‘contribute to the work of the Delegation that falls outside their normal line of duty’ (i.e. the cfsp), without the need to obtain the prior agreement of their services.241 These arrangements lead to two c­ onsiderations. 237 eeas, 2014 Annual Activity Report (n 185 p 179) accessed 19 December 2015, at 29. See also ­European Court of Auditors (n 136 p 94), para 21. 238 eeas, Report on Budgetary and Financial Management – 2012 (2013) , accessed 19 December 2015, at 7. 239 Commission-EEAS, Note to Heads of Delegation, Management of Staff in Delegations, 20 December 2011, annex 2, not published in the oj. 240 Commission and hr Decision JOIN(2012) 8 final (n 11 p 198). On the legal nature of this ­instrument see Chapter 5.I.2. 241 Id., Art. 6(1). This power of the Head of Delegation is s­ ubject to four restraints: (i) Commission staff may work on eeas issues for ‘a limited amount of time’; (ii) this work should not jeopardise the performance of their activities on behalf of the Commission; (iii) it

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On the one hand, they are expressly meant to embody the ‘spirit of coherence’ that characterises the Lisbon Treaty.242 This suggests that the concern for coherence has, once again, motivated the preference for pragmatic solutions over formalistic ones, based on delimitation of policy responsibilities. On the other hand, these arrangements seem conducive to increased synergy in practice, since they permit the Head of Delegation to ‘ensure a coherent management of all staff’ in Delegations,243 at least to a certain extent. The second, and main, area in which the centralisation of power in the hands of the Head of Delegation is insufficient relates to the issuing of instructions. It is understood that the Head of Delegation can send instructions to his/her subordinates; yet, he should also receive instructions from headquarters. Since the Delegation is organically linked to the eeas, its Head logically receives instructions from the eeas and, ultimately, from the High Representative, in respect of the matters that are managed by the Service. The functional subordination of the Delegation to the Commission, on the other hand, raises some problems. Article 5(3) of Decision 2010/427 stipulates that ‘in areas where the Commission exercises the powers conferred upon it by the Treaties’, the Commission may issue instructions to Delegations. This means that the Commission can, for instance, call on eu Delegations to carry out activities related to policy implementation, démarches, and policy advocacy on non-cfsp issues (e.g. trade, humanitarian affairs). The Head of Delegation may then call on the relevant staff in the Delegation to carry them through.244 Regrettably, Article 5(3) does not specify whether the Commission should send instructions to the Head of Delegation (who should then transmit them to Commission officials), or if the institution may directly address its staff in Delegations.245 The former solution would perhaps be advisable, considering that the Union ambassador must ensure ‘coordination of all ­actions of the Union’. should not exceed ‘a reasonable proportion’ of w ­ orking time, ‘indicatively no more than 20%’; (iv) the Commission staff member should have relevant expertise in the area where he/she is asked to work. Moreover, it is to be noted that this flexibility applies only to staff paid under the administrative lines of the Commission’s budget, and not to those funded from programmes, see Art. 6(2). 242 Commission-EEAS, Note to Heads of Delegation (n 239 p 294), at 1. See also Commission Joint Decision JOIN(2012) 8 (n 11 p 198), preamble, recital 5. 243 hr and Commission Joint Decision JOIN(2012) 8 (n 11 p 198), preamble, recital 5. 244 Working Arrangements (n 15 p 199), para 1.1. 245 It is worth noting that the Working Arrangements are not entirely straighforward in this respect. Firstly, they generically stipulate that ‘Under the eeas Decision (Article 5(3)), the Head of Delegation receives instructions from the hr/vp and the eeas and the Commission’. Then, they affirm that ‘in areas where the Commission exercises the powers

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This solution would also seem in line with the letter of Article 5(3), which stipulates that the Commission’s instructions must be sent ‘in ­accordance with Article 221(2) tfeu’, and must be executed ‘under the overall responsibility of the Head of Delegation’. This approach was in fact favoured by the Member States during the setup of the Service.246 The Commission, on the other hand, insisted on maintaining its ability to send instructions directly to its officials in Delegations (thus bypassing the Head of Delegation). The Commission’s solution would seem to have prevailed. The preamble of Decision 2010/427 indeed affirms that ‘when the Commission will issue instructions to delegations, it will simultaneously provide a copy thereof to the Head of Delegation’.247 Hence, it would seem that the Head of Delegation is not fully integrated in the hierarchical structure of the Commission, but is simply informed of its activities. This arrangement is risky: by bypassing the eu ­ambassador, the Commission may, knowingly or not, prompt its staff in Delegations to follow a line that disregards political considerations and the priorities set by the eeas. It has been reported that such difficulties have commonly affected the field of development cooperation in the first years of the eeas’s existence.248 Even if the Commission issued instructions to the eu ambassador, at any rate, some problems would remain. If the instructions of the Commission were not coherent with those of the High Representative/EEAS, the Head of Delegation would be at an impasse. The Head of Delegation may raise the issue with the eeas and the Commission and possibly block the incoherent actions of his/her subordinates, to prevent the eu’s incoherence from becoming apparent to third parties. In other words, the eu ambassador may perhaps function as an ‘emergency brake’; however, one cannot expect him/her to solve political conflicts between eu political authorities.249

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c­ onferred to it by the Treaties, it may issue instructions to the Delegation, copying the eeas’, Working Arrangements (n 15 p 199), para 1.1. Christoffersen (n 9 p 2), at 124. Emphasis added. Wouters and others (n 1 p 1), at 66. See also European Court of Auditors (n 136 p 94), para 21; Toby Vogel, ‘Ashton on Defensive over eu’s Diplomatic Service’ European Voice (1 April 2012) ­accessed 19 December 2015. More generally, the Head of Delegation cannot impose a certain policy on the Commission. It has been reported, for instance, that the Commission is reluctant to let the eu ambassador intervene in trade negotiations, which are performed by Commisssion dg Trade; at any rate, in other areas, such as energy policy, cooperation is more effective, see Wouters and others (n 1 p 1), at 68.

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2.4

Persisting Multiplicity of eu Para-diplomacies: Echo Field Offices and Special Representatives Whereas the legislature ensured, at least to a certain extent, the coherence of eu Delegations, it failed to bring the different diplomacies of the Union under the same roof. Delegations represent, of course, the main diplomatic network of the eu, but other organs set up by eu institutions may perform functions that partially overlap with those of eu Delegations, thereby potentially threatening external action coherence.250 This is the case, in the first place, of the humanitarian offices of Commission dg Echo. This dg has a tradition of independence from the rest of the Commission structure (and, a fortiori, from other eu institutions).251 The need for such autonomy apparently descends from the necessity to conduct completely independent humanitarian operations, which ‘must not be guided by, or subject to, political considerations’.252 dg Echo has opened 46 ‘field offices’ in almost as many non-eu countries,253 to gather humanitarian and disaster information, and to support the delivery of assistance, notably by financing the operations of other international organisations and non-governmental organisations. Field offices may be distinguished from Delegations, first of all, from an institutional perspective. The former are part of dg Echo, which decides about the opening of field offices, and sends them instructions. Delegations, on the other hand, are opened by the High Representative (with the approval of the Commission), and are under the authority of Heads of Delegation (who, in turn, is subordinated to the High Representative and the Commission).254 The second, and most important, difference between field offices and Delegations is the functional one. The former are responsible for the operational implementation of humanitarian aid, while the latter have a broader ‘diplomatic’ mandate (which normally does not comprise the operational implementation of humanitarian aid). There should be no risk, therefore, of a functional overlap between the two offices, at least in theory. In practice, the situation may be different. Echo staff in field offices may ­potentially make statements that contradict those of the local Delegations, 250 This problem is not typical of the eu: even the diplomacies of States must face the ­competition of other offices, such as trade and humanitarian missions. 251 See Helen Versluys, ‘European Union Humanitarian Aid: Lifesaver or Political Tool?’ in Jan  Orbie (ed), Europe’s Global Role: External Policies of the European Union (Ashgate ­Publishing, Ltd 2009), at 98 and 108. 252 Council Regulation 1257/96 Concerning Humanitarian Aid, oj 1996L 163/1, preamble. 253 For an overview of dg Echo’s offices in the world, see accessed 18 November 2015. 254 See Decision 2010/427 (n 132 p 94), Article 5(1) and (2).

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thus questioning the unity of the eu’s representation in a third country. The eeas-Commission Working Arrangements acknowledge this problem, and clarify that Echo field offices have no authority to act as the legal representatives of the eu. They should speak solely about humanitarian and civil protection issues (which fall within Echo’s mandate), but not on other issues. Moreover, the operations of the field offices may interfere with those of the Delegation. Humanitarian operations are not necessarily dissimilar from development cooperation actions and from security-related projects (which may be financed under the Instrument contributing to stability and peace or the cfsp budget).255 Because of this possible functional overlap, the Working Arrangements envisage a close collaboration between Echo’s offices and the Delegations: field offices and Delegations must exchange relevant information, and the former must be involved ‘where appropriate’ in internal Delegation meetings.256 One may conclude that, given the functional difference between Delegations and Echo field offices, and the existence of procedures for collaboration, their co-existence does not seem exceedingly problematic for the coherence of eu foreign affairs. Another para-diplomacy of the Union – the Special Representative – is potentially more troublesome. The office of the Special Representative was introduced in 1996, with the purpose of representing the European Union in cfsp matters. The Common Foreign and Security Policy, in fact, did not have permanent representations abroad, since Commission Delegations were supposed to operate only in the Community sphere. eu Special Representatives performed, in particular, csdp tasks, such as engaging in conflict resolution on behalf of the eu, but also ‘diplomatic’ functions, such as collecting information and providing input for the formulation of eu policies. Special Representatives were never very numerous, though their numbers rose from two in 1996 to nine in the second half of the 2000’s. Primary law now acknowledges the presence 255 For instance, it has been reported that, while the eeas sought to fund certain humanitarian projects in Somalia in 2011, dg Echo disagreed (perhaps because it intended to use its money in areas more affected by crises). To avoid this problem, the eeas supported humanitarian projects using the funds of the Instrument for Stability, which was indeed intended for crisis response (albeit not for humanitarian aid stricto sensu) (see Chapter 6.I.2.2 and text to n 167 p 54). This fact was confirmed by an official of the eeas (interview 7, May 2012) and by two dg Echo officials (interviews 15 and 16, September 2012). 256 Moreover, dg Echo should inform the relevant Delegation before opening a field office, and its staff should introduce themselves to the Head of Delegation before starting operations.

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and role of Special Representatives at Article 33 teu, according to which the Council, on a proposal from the hr, may appoint a Special Representative with a mandate in relation to particular policy issues.257 Differently from Echo’s field offices, the Special Representatives are not entirely separate from the eeas, since they are placed ‘under the authority of the High Representative’ (Article 33 teu). hr Catherine Ashton sought to fully integrate the Special Representatives within the eeas, but the opposition of some Member States eventually led her to maintain these offices separate from the Service. This state of affairs seems not to be conducive to an efficient management of eu external relations: there is no longer a need for a paradiplomacy in the cfsp sphere. The eeas, and the Delegations in particular, represent the Union in this ambit. Even if perfect coordination between Special Representatives and eeas structures were ensured, the mere existence of Special Representatives, beside the eeas, would hardly send the message of a united European Union.258 This separation is not necessary from a constitutional perspective. It is true that the Treaties do not explicitly state that the Special Representatives should be part of the eeas, but they do not exclude that either. In fact, Article 33 teu places them ‘under the authority’ of the High Representative, like Article 221(2) tfeu places eu Delegations ‘under the authority’ of the hr. If the legislature could interpret the latter provision in the sense that Delegations should be part of the eeas, it could (and probably should) have integrated the Special Representatives in the eeas structure as well.259 One may hope that, 257 Further on the Special Representatives after Lisbon, see Dominik Tolksdorf, ‘eu Special Representatives: An Intergovernmental Tool in the Post-Lisbon Foreign Policy System?’ (2013) 18 European Foreign Affairs Review 471. 258 The High Representative partially solved this duality by ‘double hatting’ some Heads of Delegation as Special Representatives. Even this solution does not eliminate the practical problems, such as functional duplication, created by the administrative separation between the Special Representatives and the eeas. See Matilde Recanati, ‘I rappresentanti speciali dell’Unione europea’ in Alessandra Lang and Paola Mariani (eds), La politica estera dell’Unione europea: inquadramento giuridico e prassi applicativa (Giappichelli 2014), at 63–66. 259 I respectfully disagree with the interpretation of the Treaties offered by the Council legal service, according to which ‘eeas and eusrs [eu Special Representatives] are based on two distinct legal bases: Art. 27 and 33 teu. Full integration of eusrs as such into the eeas requires an amendment of Council Decision 2010/427/EU […] and of the teu’, see ‘eeas Review – indications relating to the legal and institutional issues raised by the recommendations’, Council doc. 14458/13, para 4.

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in the future, the legislature may acknowledge this fact and proceed to merge the Special Representatives in the eeas’s hierarchy.260

Conclusion of Chapter 6

The ability to integrate in other bodies, and to integrate other administrations in its own structure, is perhaps the most interesting feature of the eeas. The nature and functions of the Service change depending on the context in which it operates: it may chair collective bodies (the Council working groups) and become a collective body (the Crisis Platform); it may function as a service, under the authority of an institution (the Commission) or place other services under its own authority (in the case of diplomacy). The eeas thus appears as an ‘institutional shapeshifter’, whose nature is ineffable, precisely because it is ever-changing. This peculiar character of the eeas derives mostly from two factors. First, the need to promote coherence in a complex legal and institutional context: had external action powers been less disperse and eu bodies been less diverse, the eeas would not have needed to be so multiform. The second factor is the use of national organs as models for the eeas. Certain coordination mechanisms – such as crisis response committees and ‘complex’ diplomatic missions – are well established in national systems, but raise new problems when transferred at the eu level. The peculiar characters of the eeas seem capable of enhancing its coherence-making potential. The Service may indeed monitor all external relations actions since the phase of initiative (under the hr or the Commission’s authority), through the legislative phase (in the Council and its working groups), and during implementation. One should note, at any rate, that the eeas is not a deus ex machina of the external action.261 The Service may, to a certain extent, coordinate foreign affairs, by influencing the policy-making activities of other authorities, and by overseeing policy implementation, especially in the crucial area of diplomacy. Yet, serious political contrasts between the priorities of the Member States, and between these and those of the Commission, cannot be reconciled at the administrative level. 260 On the possible advantages entailed by the integration of Special Representatives into the eeas, see Balfour, Bayles and Kenna (n 1 p 9), at 8. 261 This definition was originally used, with a reference to the eeas, by Federico Casolari, in the presentation ‘La via Europea del Civilian Crisis Management’, Summer School ‘Renzo Imbeni’, Modena (Italy), 13 September 2015.

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While the eeas may foster coherence, it is also influenced, in its design, by the concern for coherence. The entrustment of multiple functions to the Service, and the pragmatic definition of its tasks, is transparently meant to enhance its coordinating potential, to the detriment of a clear delimitation of powers. In some cases – notably the management of international cooperation and diplomacy – the concern for coherence seems not only to inspire the design of the eeas, but also to justify it at the legal level. Apparently, the legislature has balanced the principle of coherence against the delimitation of powers set in the Treaties, to allow the Service to discharge its coherencemaking mandate more effectively.

Conclusion The European External Action Service is a protean entity about which little is known, especially from a legal perspective – with the exception of its function: promoting coherence in European Union foreign policy. Hence, this book has adopted a functional perspective to clarify the nature and role of the Service. The analysis has addressed two questions, which are symmetric. First, is the eeas’s legal design conducive to external action coherence? Second, did the concern for coherence influence the form of the eeas? The next paragraphs address these questions on the basis of the findings of the investigation. The presentation begins by answering the first question and then discusses a corollary issue, that is, the evaluation of the eeas’s performance. Then, the attention turns to the second question and to a further ­problem it raises: the influence of the eeas’s administrative status on the delimitation of its sphere of action. I subsequently discuss the main legal problems of the eeas’s founding instrument and the possibility to amend it. ­Finally, I introduce some remarks on the Service’s role in the process of European integration.

Promoting Coherence through Autonomy and Coordination

The investigation has addressed, first and foremost, the compatibility between the eeas’s design and its coherence-making mandate. The analysis has shown that the eeas was indeed designed to promote coherence, as demonstrated by its autonomy and its participation in coordination activities. The first part focused on the principle of external action coherence and on the means that the Union may use to attain such a coherence in practice. Chapter 1 demonstrated that the eu Treaties request coherence, i.e., synergy, in the eu’s foreign policy, which is threatened by the multiplicity of the external ­actions of the Union and of its Member States. Chapter 2 explored the means for the implementation of such coherence. It showed that the eu can hardly implement coherence by centralising the foreign affairs power or by enforcing cooperation between decision-makers. It has been submitted that coherence may be fostered by setting up a ‘coordinator’ who may steer the conduct of the main foreign policy authorities without substituting for them in the exercise of their powers. The study has suggested that this coordinator should ideally have two main characteristics. On the one hand, it should be ‘autonomous’ from the main decision-makers to be neutral and more trustworthy in the eyes of © koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004323612_011

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coordinated authorities. On the other hand, it should be involved in coordination activities transversally to the separation of powers in the external action, through cooperation with coordinated authorities and integration with their structures. It has been argued that the ‘political’ organs of the eu, including the institutions and the High Representative, lack the requisite characteristics, driving the need for an ‘administrative’ solution to the conundrum of coherence: the European External Action Service. The rest of the analysis demonstrated that the eeas displays, to a great extent, the characteristics of an ideal external action coordinator. The second part showed that the Service is sufficiently autonomous from the main actors of the external action. As shown in Chapter 3, the eeas is administratively separate from the other eu bodies. It can indeed adopt legal acts, enter into interinstitutional agreements, and stand before the Court, as far as administrative issues are concerned. This suggests that the eeas has a unique legal status: though it is a ‘service’, it largely functions as an institution for administrative purposes. In addition to being administratively autonomous, the eeas enjoys ample operational independence: it can conduct its activities in a manner that is largely insulated from the influence of other actors. Chapter 4 showed indeed that neither the Member States nor eu organs can exert complete control over the Service, which is consequently capable of defining its own political line. In addition, the Service’s ample independence suggests that it may enjoy the trust of all the main actors involved in eu foreign affairs and might ­consequently elicit cooperation from them. To be sure, the eeas’s autonomy is neither complete not entirely balanced. The Service is responsible for the management of the Common Foreign and Security Policy, whose political governance remains firmly in the hands of the Member States. Yet this issue should not be overemphasised. The Service is not wholly controlled by the Council or by any of its Members, and when it operates in the formerly ­Community sphere, it is largely subject to the control of the C ­ ommission itself.1 The third part completed the analysis by demonstrating that the eeas possesses the other feature that is required to coordinate eu foreign affairs: it is capable of conducting coordination activities by exploiting various mechanisms. As shown in Chapter 5, the eeas is at the centre of a cooperation network that involves other eu bodies (notably the Commission), as well as the Member States. This network enables the Service to consult, exchange information with, and provide support for the main decision-makers of the external action. 1 In an earlier publication, I expressed a more pessimistic opinion, which I later revised, see Gatti, The Role of the European External Action Service (n 148 p 269).

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Hence, the eeas may stimulate other authorities to pursue a certain course of action by presenting its point of view or by providing the resources (e.g., information hubs and diplomatic missions) that allow cooperation to take place. Of course, the potential for cooperation is not unrestrained: one can hardly expect the decision-makers to display a cooperative attitude at all times. This limitation stresses the importance of another coordinating mechanism available to the eeas, discussed in Chapter 6: the integration with other authorities. The Service operates as the administration of different organs: not only the High Representative but also the Council and the Commission. It may thus participate in decision-making throughout the policy cycle: from the proposal of acts through legislative deliberation and until policy implementation. Furthermore, the eeas integrates other administrations in its own structure in the areas of crisis response and diplomacy. This arrangement has great potential to foster coherence in practice, as the eeas comes to exert quasi-hierarchical authority over the departments of the Council and of the Commission, following the model of national coordination structures. Overall, the analysis shows that the legislature designed the eeas in a way that should enable it to effectively discharge its function, i.e., promoting ­coherence. This does not mean that the Service can single-handedly ensure synergy among the different foreign policies of the eu and of its Members. The eeas operates in cooperation (and integration) with other administrations. Even when it can impose its views de facto – for instance, in the management of certain international cooperation instruments – it cannot entirely ignore the views of other actors. To attain its goal, the Service needs the confidence of other bureaucracies: the eeas may perhaps force the hand of its partners in the short term, but hostile behaviour would complicate inter-institutional relations in the long run. Moreover, the Service remains an administration that operates under the authority of political bodies. Although politicians delegate ample responsibilities to bureaucrats, they sometimes play a more active role in decision-making. In those cases, the eeas (and its administrative partners) may propose solutions, but the final decision remains with the political actors. If the latter are hell-bent on conducting incoherent actions – or not conducting any action at all – there is little administrative bodies may do. For instance, the eeas can hardly convince national politicians to pursue the long-term interests of their countries (and of the eu) rather than short-term goals, which may be easier to sell to the public opinion. In summary, the eeas is a useful tool for the promotion of coherence in the present institutional framework of the Union, but its power is limited. This finding should be taken into account when assessing the eeas’s performance, as shown in the next section.

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On the eeas’s Effectiveness: All That is Gold Does Not Glitter

The limitations of the eeas’s power have important consequences for the assessment of its performance. As noted in the Introduction, a systematic investigation of the eeas’s effectiveness cannot be performed from a legal perspective. However, legal analysis may provide useful indications for further studies on this issue from the perspective of other disciplines. The observation of the practice of the eu’s external action might suggest that with regard to neither the procedure nor the substance of European foreign policy may one attest dramatic changes since the Treaty of Lisbon and the institutional and legal changes the latter has brought about.2 Does this necessarily imply that the eeas has failed? Some authors seem to have reached this conclusion. It has been argued, in particular, that the Service has not bridged the gap between the ‘classical foreign and security policy’ dimensions of European external action.3 Such a pessimistic conclusion, however, may not be entirely justified. As noted in the previous section, the Service may promote but not ensure synergy in eu foreign affairs. Hence, an evaluation of the eeas’s activity should not focus solely on the outcome of coordination but should take into account the process itself. One should arguably consider whether the eeas has made use of all the instruments at its disposal, such as the submission of proposals, the consultation of Commission departments, the chairmanship of Council working groups, and eventually the implementation of specific actions in the field. Particular attention should be paid to the limits of the Service’s power. Primary and secondary law define what the eeas can do and what it cannot (though not in a straightforward fashion). If legal constraints are unaccounted for, the evaluation of the Service’s performance is likely to be exceedingly negative: even an excellent activity of coordination may be obscured by the conflicting priorities of political authorities – which the eeas may be simply unable to solve. It would be particularly unfair to expect the eeas to bring about dramatic changes in the most important and controversial areas of the eu’s foreign 2 Cf. Inez Von Weitershausen, ‘Contentious Politics in Libya’ in Fawaz A Gerges (ed), C ­ ontentious Politics in the Middle East (Palgrave Macmillan 2015). 3 Dario Christiani, ‘The Malian Crisis: Causes and Dynamics’ in Doris Dialer, Heinrich Neisser and Anja Opitz (eds), The eu’s External Action Service: Potentials for a One Voice Foreign Policy (Innsbruck University Press 2014), at 138. Similarly, it has been contended that the existence of the eeas ‘has not yet significantly altered eu external climate policy practice’, De Jong and Simon (n 33 p 65), at 184.

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policy. The Syrian crisis is a good example in this sense. The failure to reach coherence among the different European actors has been blamed, in part, on the Service because of its alleged lack of ‘creative will’ in the reaction to the crisis.4 Even if that were the case, one may wonder whether any creative strategy of the eeas could have convinced France and the uk to sit idle or, conversely, whether it may have forced Italy or Poland to be more proactive. Similar considerations are applicable to any major or highly divisive international event that affects the Union, such as the Russian invasion of Ukraine in 2014 or Israel’s persisting occupation of Palestine. To put it bluntly, the eeas is not capable of evoking coherence out of thin air, and it should not be expected to do so: where there is power there is responsibility, but where there is no power there can be no responsibility. A fair assessment of the eeas’s activity should take into account not only the major and most visible issues but also the relatively less important ones. For example, in the response to the crisis in the Horn of Africa, the eeas ­apparently allowed the Union to combine various cfsp instruments with the development cooperation instruments. Similarly, it would seem that, in Mali, the eeas worked with a Member State (France), combining its own ‘political power’ with the ‘Commission’s financial fire power, and action by Member States’.5 In such less politically sensitive cases, in fact, the positions of the States and of the Commission are less rigid, and there is more scope for coordination. Forging coherence in such situations, of course, is not an extraordinarily ambitious objective but is at least a realistic one. It may be hoped that this ‘modest’ contribution to coherence may bring about, in the future, more concrete achievements and a solidarité de fait on which a truly common foreign policy may be built.

An Embodiment of Coherence: eeas’s Impact on Constitutional Law

The analysis sought to address also a second question, which is largely a ­corollary of the first one: did the concern for coherence affect the design of the eeas? 4 Edmund Ratka and Christine Straßmaier, ‘The European Union and Syria – Reluctant and Unambitious in a Middle Eastern Imbroglio’ in Doris Dialer, Heinrich Neisser and Anja Opitz (eds), The eu’s External Action Service: Potentials for a One Voice Foreign Policy (Innsbruck University Press 2014), at 158. 5 uk House of Lords, The eu’s External Action Service: 11th Report of Session 2012–13 (n 139 p 95), para 89.

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The first part of the investigation showed that coherence has a double nature. On the one hand, it is a political objective whose attainment is threatened by the multiplicity of the external actions of the Union and its Members, especially by the summa divisio between the intergovernmental and the supranational spheres. On the other hand, coherence is a legal principle that requires eu institutions and Members to conduct synergetic policies, though the latter are separated by the principle of conferral of competences and powers. This means that, in practice, the concern for synergy in eu foreign affairs should be balanced against the concern for the delimitation of the competences of the Union and of the powers of its organs. In other words, the decision-makers of the external action should create positive connections between their activities, if necessary by adopting a ‘flexible’ interpretation of the limits of conferred competences and powers. Coherence, as a political imperative, seems to be the rationale for the eeas’s peculiar status. The second part of the book showed that the eeas is at the centre of the eu’s external relations structure. The eeas appears neither as an intergovernmental body nor as an extension of the ‘Community Method’ in the sphere of the Union’s external relations.6 It may be argued that the Masters of the Treaties and the legislature gave the eeas this intermediate institutional position so that it may reconcile the two Europes that interact with the world: the ‘power Europe’, dealing with ‘high politics’, and the ‘technocratic Europe’, dealing with issues such as trade and development cooperation.7 Coherence, as a legal principle, affects in particular the definition of the eeas’s activities, explored in the third part of the book. The Service must cooperate with all the main decision-makers of the external action, across the divide between the former pillars. Furthermore, the eeas participates in the work of other bodies and integrates other administrations in its structure, defying the institutional balance that stems from the distribution of powers set in the Treaties. The legislature interpreted institutional balance in light of external action coherence, particularly in sectors such as development cooperation and diplomacy, thereby achieving pragmatic and flexible solutions that do not precisely respect the divide between supranational and intergovernmental activities. In other words, coherence (as a legal principle) influenced the ­design of the eeas, making it more capable of ensuring coherence (as a political objective). 6 Cf. European Parliament legislative resolution of 8 July 2010 on the proposal for a Council decision establishing the organisation and functioning of the European External Action ­Service, oj 2011 C 351, preamble. 7 Cf. Justin Vaïsse and Susi Dennison, European Foreign Policy Scorecard 2013 (European ­Council on Foreign Relations 2013), at 20.

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It would seem, therefore, that the eeas represents an ‘embodiment’ of coherence, whose function consists of bridging different policies and whose mandate spans across different policy areas. The setup of the eeas may thus confirm the pre-existing tendency of eu organs to balance the concern for coherence against the concern for the delimitation of competences and powers. The Service’s design may even reinforce this trend, by legitimising, at least from a political perspective, an extensive interpretation of coherence and a ­‘flexible’ understanding of conferred competences and powers. One may conclude that the delimitation of eu policies does not represent a ‘nail in the coffin’8 of the eeas’s coordinating potential. On the contrary, the eeas’s design suggests that coherence is slowly ‘digging the grave’ of the delimitation between cfsp and non-cfsp areas. One must not forget, in fact, that the Decision on which the eeas is based was approved by the Member States (in the Council), the Commission and the Parliament. Hence, it constitutes an instrument of quasiconstitutional importance that may set an important precedent in the field of eu constitutional law.

The Importance of being a Service

The establishment of the eeas as an ‘embodiment’ of coherence probably was facilitated by its status as an administration. At first sight, one may be tempted to think that the characterisation as a ‘service’ constitutes a handicap for the eeas. As seen above, this body is subordinated to political organs, and its power is consequently diminished. However, the administrative status of the eeas arguably constitutes an asset, as it allows for a more flexible division of responsibilities between the Service and other bodies. In theory, the principle of coherence may justify an extensive reading of the powers of any organ that plays a coordinating role, including political organs, such as the High Representative. One may hypothesise in particular that the hr’s mandate as a Commission Vice-President, read in light of the principle of coherence, should allow him/her to exercise close supervision of the whole of the institution’s responsibilities in external relations. However, 8 The expression is borrowed from Steven Blockmans and Martina Spernbauer, ‘Legal ­Obstacles to Comprehensive eu External Security Action’ (2013) 18 European Foreign Affairs Review 7, at 14; See also Soledad Rodríguez Sánchez-Tabernero, ‘Article 40 and the European External Action Service: The Eternal Paradox?’ in Luis N González Alonso (ed), Between Autonomy and Cooperation: Shaping the Institutional Profile of the European External Action Service (cleer 2014), at 15.

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this is not the case in practice.9 The division of power among political authorities, such as the Commissioners, is a highly sensitive and visible issue: it is difficult to reach pragmatic solutions in such a context. The eeas bypasses this problem because of its status as an ‘administration’. Being a ‘bureaucratic’ organ, the Service works mainly behind the scenes. Although services influence decision-making in practice, the details of their division of labour are unknown to public opinion (and probably to most politicians). It stands to reason that the setup of an ‘administration’ may be performed in a pragmatic manner. It is well known, in fact, that the administrations of the eu and of the Member States have been setting up cooperation mechanisms for decades, notwithstanding the separation of competences at the constitutional level. The administrative nature of the eeas not only facilitated its establishment as a coherence-making body but also influenced the evolution of its sphere of activity.10 The nonbinding arrangements between the Commission and the eeas, the binding arrangements between the High Representative and the Commission, and the internal rules of eu institutions often define the ­Service’s field of action in light of pragmatic considerations related to efficiency and effectiveness (and not in terms of an abstract concern for delimitation of ­powers). Cases in point are the arrangements for the chairmanship of Council preparatory bodies, the negotiation of ‘cross-Treaty’ agreements, the programming of international cooperation, the Crisis Platform, and the distribution of responsibilities among the officials of eu Delegations.11 One may expect that the continuous collaboration at the administrative level may facilitate the development of further pragmatic solutions, which might permit the obviation, at least in part, of the legal deficiencies of Decision 2010/427 and of the other instruments that regulate the activities of the eeas. Though the law is not entirely satisfactory, in fact, one may doubt whether the legislature will introduce an effective review in the next future, for reasons discussed in the next section.

Does the eeas Need a Revision?

Although the eeas’s design constitutes a relevant novelty in the field of eu law, its founding instruments are affected by some flaws, which may, in certain cases, hinder the eeas’s ability to discharge its mandate. The analysis conducted in this book has highlighted seven main problems. 9 10 11

See Chapter 2.III.3. Cf. Morviducci (n 201 p 181), at 32. See Chapters 6.I.1.2, 6.I.2.1, 6.I.2.3, 6.II.1.3 and 6.II.2.3.

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In the first place, the eeas’s objectives are not sufficiently straightforward. The current formulation of Decision 2010/427 suggests that the eeas should promote ‘consistency’ by assisting the High Representative in fulfilling his/her mandate in the cfsp sphere (first indent of Article 2(1)). To make clear the purpose of the eeas, it would be desirable to clarify that it should coordinate the whole of eu foreign affairs, to foster ‘coherence’.12 It may also be opportune to make the language of the Decision more straightforward when it comes to defining the eeas’s tasks: at present, the Service ‘supports’ the High Representative and ‘assists’ the Council and the Commission. This formulation appears unfortunate, as there would seem to be no distinction between the tasks of ‘supporting’ and ‘assisting’ under eu law.13 Second, the legal status of the Service is blurred. The ‘functional autonomy’ and ‘legal capacity’ envisaged in Article 1(2) of Decision 2010/427 are not selfexplanatory, and their meaning comes through only via a systemic appraisal of several instruments. A revision of Decision 2010/427 may arguably render the eeas’s nature clearer by affirming that the eeas is ‘administratively autonomous’.14 In addition, Decision 2010/427 may usefully enumerate the instruments that the eeas may adopt in the administrative sphere and acknowledge the locus standi of the Service in this regard.15 Third, the arrangements concerning cooperation between the eeas and other authorities are not entirely clear. Article 3 of Decision 2010/427 introduces several duties of cooperation, which are worded in apparently different terms even when their content is not dissimilar.16 One may think of a simplification of this provision, which should succinctly call for cooperation between the eeas and ‘other institutions, agencies, offices, bodies and administrations of the Union’. Then, Article 3 may specify that the eeas may enter into (binding) commitments to foster cooperation regarding administrative issues and (non-binding) commitments in the operational sphere. Finally, Article 3 may introduce specific duties of cooperation that apply to the eeas and other authorities. It may be particularly useful to specify that the duty of consultation does not apply solely to the eeas and Commission services but to any body 12

Cf. 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 (European University Institute 2013), at 6. 13 See id., at 6. Cf. Article 27(3) teu and Article 298 tfeu. 14 On the other hand, a delimitation of the eeas’s ‘operational’ autonomy in Decision 2010/427 is not advisable, since this concept is too imprecise to be defined in secondary law. See Chapter 4.II.1. 15 See Chapter 3. 16 See Chapter 5.I.5. See also Blockmans and Hillion (n 12 supra), at 7.

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of the Union that takes initiatives affecting the eu’s external action, as well as to the foreign ministries of the Member States, on any matter of general interest17 and on any issue that may affect a strategy concerted within the European Council and the Council.18 By doing so, Decision 2010/427 would acknowledge the pivotal role of the Service in the promotion of external action coherence and give it an important instrument to foster synergy in practice. At the same time, such a duty of consultation would not question the separation of competences and powers set in the Treaties but would actually substantiate the existing and often vague duties of cooperation. Fourth, the reference to the concept of ‘geographic balance’ in staff issues (Article 6(6)) seems quite problematic. This provision would seem to justify, at least from a political perspective, a disproportionate concern for geographical balance at all hierarchical levels, including the lower ones (where the nationality of the officials generally does not affect their attitude).19 To be sure, one should prevent the ‘takeover’ of the Service by a (big) Member State, but the present obsession with geographic balance seems excessive. An exceedingly frequent preference for passport-based (instead of merit-based) appointments may reduce the potential and the credibility of the Service. One may add that systematic discrimination on the basis of nationality is not fully in line with the spirit of the Union Treaties: eu officials are European citizens, after all. It would seem opportune to eliminate at least the reference to the ‘meaningful presence’ of nationals from all the Member States contained in Article 6(6) and let merit be the decisive factor in all appointments and promotions. Fifth, the administrative structure of the eeas, described in Article 4 of Decision 2010/427, does not appear conducive to efficiency and effectiveness. The eeas should arguably be able to autonomously change its internal organisation to respond to internal and external developments (which is not the case at present).20 It would not seem reasonable that the organisation of a bureaucratic body, especially of a new one, should be rigid. Under the existing rules, a modification of the eeas’s organisation would be time-consuming, as it would require a modification of Decision 2010/427, proposed by the High Representative and approved by the Council and the Commission. Interestingly, it would seem that the eeas’s internal organisation has evolved, to a certain extent, beyond (and perhaps contra) the letter of Decision 2010/427, to the extent that

17 18 19 20

Cf. Article 32 teu. See text to n 128 p 45. See Chapter 4.II.2.3. See Chapter 3.I.1.

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Article 4 no longer corresponds to the actual setup of the Service.21 The legislature should arguably acknowledge these developments by simplifying Article 4. This provision should define, not the details of the eeas’s organisation, but general aspects, such as the existence of a secretary-general and of a number of directorates-general comprising geographic desks. Sixth, Decision 2010/427 does not sufficiently ‘unify’ the administrations of eu foreign affairs. The eu Military Committee remains with the Council, although its civilian counterpart (the Civilian Planning and Conduct Capability) was formally integrated into the Service. The Service for Foreign Policy Instruments remains with the Commission, even if it gives financial implementation to programmes managed mostly by the eeas. Furthermore, eu Special Representatives remain outside the eeas even if they perform, in essence, diplomatic functions. Considering that the Treaties do not prevent the merger of these organs with the eeas,22 a future revision of Decision 2010/427 should arguably provide for the full organisational integration of these structures in the Service. The last and most problematic issues probably lie with the distinction between the eeas’s areas of operation and those of other authorities. The Commission’s ability to send instructions to its officials in Delegations (Article 5(3)) seems particularly pernicious. For the sake of maintaining coherence, it would be opportune to specify that all instructions to eu Delegations should be sent to the eu’s ambassadors.23 Moreover, the overlapping of responsibilities between the eeas and Commission dgs in the programming of international cooperation (Article 9) seems conducive, if not to incoherence at least to duplication of work, which should obviously be avoided.24 Similar considerations are applicable to the division of labour between crisis coordination centres and crisis management structures. The eeas offers great potential for integrating all the administrations of the Union (including those of the Commission and of the Council). This potential has been exploited, but only in part.25 Moreover, one may envisage a better division of labour between the eeas and the Member States, notably with respect to the protection of eu citizens. ‘Better’, in this ambit, means ‘more efficient’: are 28 consulates of eu members really necessary to protect Union citizens? Is it logical that unrepresented eu citizens should request help from the embassy of another country (that does not represent them) and not from the eu Delegation (which is also their 21 22 23 24 25

See Chapters 3.I.1 and 6.II.1.2. See also Blockmans and Hillion (n 12 p 310), at 9. See Chapters 6.II.1.2, 4.II.1.2, 6.I.2.3 and 6.II.2.4. See Chapter 6.II.2.3. See Chapter 6.I.2.2. See Chapters 5.III.4 and 6.II.1.3.

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mission)?26 Article 5(10) of Decision 2010/427, therefore, should not call for the mere ‘support’ of eu Delegations to national consular authorities but should allow for the conduct of diplomatic and consular protection directly by the missions of the Union. It may be argued that the problems with the legal foundation of the eeas are not limited to Decision 2010/427 but extend to primary law. The legal basis of Decision 2010/427, i.e. Article 27(3) teu, is arguably placed in the wrong chapter of the Treaty on European Union, that on the Common Foreign and Security Policy. Given the eeas’s ‘cross-pillar’ nature, it would be more logical to append this provision to Article 18 teu, which lists the powers of the High Representative in cfsp and non-cfsp areas.27 An amendment of Article 27(3) teu seems not to be on the agenda at present. Even a modification of Decision 2010/427 does not appear entirely advisable at this stage. Catherine Ashton conducted a ‘Review’ of the eeas in 2013, as required by Article 13(3) of Decision 2010/427. The Review elucidated some of the challenges that the Services faces but did not lead to the proposal of a revision of Decision 2010/427. Possibly that was for the best. It is true that the founding act of the eeas is not perfect. Yet, despite its flaws, it does not seem to exceedingly hinder the Service’s operations. The Service’s staff and their colleagues in other bodies are progressively filling the gaps in the law through administrative practice (as seen in the previous section). An amendment of Decision 2010/427 would take time and energy and would have an uncertain outcome: probably, it would lead to another ‘quadrilogue’ and other imperfect solutions. Before embarking in a revision of Decision 2010/427, it is perhaps opportune to wait for European decision-makers to become acquainted with the eeas. When the Commission will be convinced that the eeas is not a Trojan horse of intergovernmentalism and the Member States will not see it as an instance of creeping integration, then – perhaps – the negotiation on a new Decision will lead to more intelligible and effective solutions.

Final Remarks: Integration by Other Means

The road towards the ‘ever closer union’ is paved with contradictions. European States are too small to compete separately in the world of the twenty-first

26 27

See Chapter 5.IV.2. See further, Gatti, ‘Coherence vs. Conferred Powers?’ (n 42 p 148).

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century28 and attempt to compensate for this relative weakness by creating a unified Europe.29 In so doing, they become the objects of a process of destruction and the instruments of its realisation.30 The rationalisation of this paradox is equally contradictory. The eu is alternatively presented as something ‘less’ than a State (a tool for the promotion of national interests) or as something ‘more’: a new type of benign international actor that promotes universal principles (a ‘soft’, ‘normative’, ‘civilian’, or ‘gentle’ power). Where does the eeas stand? Is it the champion of intergovernmentalism or of European integration? Is it a heartless pragmatist or the new heart of Europe’s normative power? Probably, it is none of the above. Upholding the ‘Community method’ and the normative power paradigm was relatively easy in the past, when politics was not always factored into the equation, given the ‘technical’ nature of Community activities. However, politics can no longer be ignored. External developments – such as the rise of new powers in the developing world and the multiplication of crises at Europe’s doorstep – call for a response. Such a response cannot come from the Member States, which lack the resources to act on their own. In the best of all possible worlds, the States would face this problem by conferring full external sovereignty to the eu. However, the Member States are not willing simply to wither away – and perhaps they never will. For the time being, they agreed, not without difficulty, to set up an administration that coordinates their actions with those of the Union. This coordination may well be a stage that leads to more integrated measures:31 a foreign policy that is, it is hoped, ‘common’ not only in name. The eeas provides the basic infrastructure that may support such a common foreign policy: the Delegations, in particular, already constitute a diplomatic network very similar to that of a State. The construction of a complete eu foreign policy, in any event, is likely to take years, if not decades (assuming, of course, that the eu survives the mounting tide of nationalism). In the meantime, all the Union can do is to manage the complexity of different foreign policies, trying to reconcile them as much as possible to reinforce its identity and independence.

28

Javier Solana, The European-American Dream (Project Syndicate 2013) accessed 14 December 2015. 29 Henry Kissinger, Diplomacy (Simon and Schuster 1994), at 24. 30 Constantinesco, Compétences et pouvoirs (n 81 p 77), at 433. 31 Van Rompuy, ‘Not Renationalisation of European Politics, but Europeanisation of National Politics’, address given at the invitation of ‘Notre Europe’, Paris, 20 September 2010, pce 191/10.

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The eeas is, among the eu’s bodies, the one that has the greatest responsibility to conduct this coordination. If the Service is different from the other organs of the Union, it is not because it pursues a different goal, but because of the context in which it operates: it cannot disregard political concerns and national interests because the Union cannot disregard them. Rather than a setback for European integration or an extension of the Community method, the eeas appears to be a continuation of integration by other means. Its aim remains, in essence, the one that has characterised European institutions since their inception: ‘ouvrir dans le rempart des souverainetés nationales une brèche suffisamment limitée pour rallier les consentements, suffisamment profonde pour entraîner les États vers l’unité’.32

32

First draft of the Schuman Declaration, 16 April 1950, cit. in Jean Monnet, Mémoires (­Fayard 1988), at 187.

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Index Access to documents 119–122, 126–127, 133, 135 Acts of the eeas Legal acts 106–222, 127–131 Nonbinding instruments 162, 164–165, 188–189, 199–200 See also administrative autonomy, Conferral of powers–eeas, operational autonomy, soft law Administrations, see services of the eu Administrative arrangements Framework administrative arrangement 129–131 Legal effects 128–131 Service-level arrangements 127–131, 136n164, 199 Administrative autonomy Definition 72–73 eeas 105–140 eu organs 73–74 See also access to documents, acts of the eeas–legal acts, autonomy, budget– autonomy of the eeas, locus standi, operational autonomy Agencies of the eu Autonomy 73n61, 74n71, 75–80, 105, 108–109, 125, 132n144, 144–145 Cooperation with eeas 201, 213, 220 Annulment (of eu acts) 16–17, 19, 49–50, 112, 116–117, 125n115, 132–139, 158, 188–190 See also Court of Justice, locus standi Appointing authority, see High Representative Article 7 tfeu, see coherence Article 18 teu, see High Representative Article 27 teu, see establishment of the eeas Article 40 teu 29, 32–33, 50–53, 63, 188n234, 265 See also Common Foreign and Security Policy–delimitation Article 218 tfeu, see international agreements Article 351 tfeu, see Sincere cooperation– previous commitments of the Member States Ashton, Catherine Appointment 173–175 Nominations 162–163

Organisation of the eeas 107–108, 168n131, 180, 269n250, 274–275, 299, 313 Performance 86–87, 175 See also High Representative, Mogherini, organisation of the eeas, Solana Association agreements, see international agreements Attribution, see Conferral of competences, Conferral of powers Austria 47–48 Authorising officer, see High Representative Autonomy Administrative, see administrative autonomy Conferred powers and 145–147 Definition 72–76 Financial, see budget Functional 97, 104–106, 141–142 International organisations 145, 176 Legal orders 15–18 Operational, see operational autonomy Undertakings (competition law) 75, 141, 149 See also agencies, budget, conferral of powers, European Commission, services of the eu Belgium 47, 61n8 Brazil 60 Budget Autonomy of the eeas 114–117 Budget neutrality of the eeas 95–96 Implementation, see operational expenditure See also administrative autonomy Budget neutrality (eeas), see budget Canada 283n201, 283n204, 287n219 Central African Republic 276 cfsp, see Common Foreign and Security Policy Chief Operating Officer, see organisation of the eeas Citizenship (of the eu), see consular protection, diplomatic protection, staff of the eeas–geographical balance

344 Civil protection Coordination 77–78, 182n203 Operations 222–224, 232–233 See also Echo (Directorate-General), organisation of the eeas–Crisis Platform, organisation of the eeas– Situation Room Coherence Centralisation of power and 59–63 Conferred competences and, see conferral of competences Conferred powers and, see conferral of powers Consistency and 11–12, 23–29, 31–33 Cooperation and 63–66 Definition 12, 26–31 Geographical 37 Horizontal 33–37, 49–58 Influence on eeas’s mandate 249, 255, 259–260, 268–270, 274, 277, 292, 295, 306–309 Inter-institutional 35 Legal effects 38–58 Legal orders 19–20 Legal sources of 23–26 Policy coherence for development 35 Teleological 36 Temporal 36 Unity in international representation  43–47, 260 Vertical 33–37, 41–48 See also Common Foreign and Security Policy, coordination, coordinator, development cooperation policy, external action financing instruments, external representation, restrictive measures, Sincere cooperation Comitology 170, 185 Commission, see European Commission Common Foreign and Security Policy Coherence with other policies 22–23, 25, 33–34, 36n94, 62, 264–265, 269–270, 298, 306, 308 Common strategies 53–54 Cooperation 64–65, 217, 220–221, 252 Court of Justice, see Court of Justice–jurisdiction

Index Crisis management, see Common Security and Defence Policy Decision-making 22, 23n50, 25, 70, 97–98, 225 Delimitation 28–29, 32–33, 49–58, 63, 222–223, 264–265, 294–295, 298 Ecowas (case-law) 50–52, 55n168, 264n126 eeas mandate 94, 97–98, 105, 159–160, 239, 242–249, 254, 289–291, 303, 310, 313 Financial implementation 73 International agreements 51n156, 259–260 Philippines Border Management (case-law) 50–52 pnr (case-law) 49 Special Representatives 94, 298–300 See also acts of the eeas, Common Security and Defence Policy, European Commission, European Parliament, external action financing instruments, Intergovernmental Method Common Security and Defence Policy Consultation eeas-Commission 202– 204, 206, 208n43 Financial aspects 114 Missions 169, 219–221, 232, 271–274, 277–278 Staff issues 178, 187 Structures 107n15, 246, 248–249, 273–275, 276–278, 298 See also Common Foreign and Security Policy, Council, Crisis Platform, organisation of the eeas Communications, see soft law Community Method 22, 307, 314–315 See also Intergovernmental Method, Union Method Comprehensive approach 67, 272 Conclusions, see soft law Conferral of competences (to the eu) Coherence and 27–28, 38–48 Consistency and 27, 37n103, 38–48, 62–64, 69 See also coherence, conferral of powers, consistency, Court of Justice, Sincere cooperation

Index Conferral of powers (to eu organs) Autonomy of eu organs, see autonomy–conferred powers Coherence and 38–41, 53–58 Consistency and 28–29 eeas 103, 148–149, 267–268 Institutional balance, see institutional balance–conferred powers See also acts of the eeas, autonomy, coherence, consistency, coordination, High Representative, operational autonomy Consistency Coherence and, see coherence Consistent interpretation 17n24 eu legal order 14–19 International law and eu law, see international agreements–relation with eu law Systemic 13–14 See also coherence, conferral of competences, conferral of powers, legal basis, Sincere cooperation Consistent interpretation, see Consistency Consular assistance, see consular protection Consular mission 227–228, 286 See also consular protection, diplomatic mission Consular protection Cooperation between eu and Member States 231–234 Definition 228–229 See also Delegation (eu organ), diplomatic protection Consulate, see consular mission Consultation eeas and Commission services 165, 205–212 eeas and other entities 212–213, 310–311 Roquette Frères (case-law) 207 See also Common Security and Defence Policy, Echo (Directorate-General), Sincere cooperation Control Accounting 155n83 Definition 155–156 Financial 167, 171, 186 Hierarchical 156, 159–172 Judicial 158, 188–190

345 Legal 155n83 Political 156–158, 172–188 See also Council, European Commission, European Council, European Parliament, High Representative Coordination Conferred powers and 69 Cooperation and 68–69 Definition 67–69 See also coherence, Conferral of powers, coordinator, Sincere cooperation Coordinator Autonomous organ 70–72, 81–82 Collective organ 70, 80–81, 97 See also coherence, coordination Coreu 213–216, 218, 232, 242–243 Corporate Board, see organisation of the eeas Council (of the eu) Control over the eeas 169–172 Coreper 81, 103n4, 133n151, 171n145, 243n24, 244–248, 267n143 General Secretariat 92, 95n139, 96–99, 104, 113, 119n78, 127–128, 129n133, 154, 169, 177, 196, 199–200, 203, 204n34, 215, 219, 239–240, 247n49 Military Committee 246, 247n49, 273–276, 278, 312 Political and Security Committee 81, 170, 172, 187, 245–248, 273 Preparatory bodies 45, 169–172, 215, 242, 244–249 Presidency 82, 84, 86, 95, 98, 215, 231, 239–244, 246–255 See also conferral of powers, control, coordinator–collective organ, establishment of the eeas, High Representative, organisation of the eeas, soft law Court of Justice Consistency of eu legal order 15–16, 27–29 Independence 150n49 Jurisdiction 22, 29, 158 See also conferral of competences, conferral of powers, consistency, locus standi Creation of the eeas, see establishment of the eeas Crisis management, see Common Security and Defence Policy

346 Crisis Platform, see organisation of the eeas Crisis response, see civil protection, Common Security and Defence Policy, Echo (Directorate-General), organisation of the eeas–Crisis Platform, organisation of the eeas–Situation Room Cross-pillar, see legal basis–multiple See also Common Foreign and Security Policy–delimitation, international agreements–Cross-Treaty agreements csdp, see Common Security and Defence Policy Data protection 117–118 Declaration on political accountability, see High Representative Delegation (eu organ) Commission Delegations, see European Commission Consular protection 231–236, 312–313 Cooperation with national embassies  64, 196, 201–204, 216–218, 224–227, 231–234, 250–257 Delegations’ Guide 253n77, 285n211, 287n218, 287n219 Diplomatic list 284–285, 287n219 Diplomatic protection 234–235 Elti (case-law) 103n4, 126n122, 288n221, 289, 290n226 Establishment agreements 283, 288 Financial implementation 292–294 Functions 216–217, 285–287 Head of, see Head of Delegation Immunities 283–284 Instructions 138, 294–296, 312 Intelligence 219, 221 National diplomats 179–180, 182, 184 Relations with High Representative 84– 85, 288 Relations with other eu representatives, see echo (Directorate-General)–field offices, Special Representatives Staff 137n169, 160 Status 125, 288–299 Structure 278–279, 288–291, 309 See also consular mission, consular protection, delegation (of power), diplomatic mission, diplomatic protection, European Commission, European Parliament, external representation, Head of

Index Delegation, immunities, operational expenditure, organisation of the eeas, right of legation Delegation (of power) 85–86, 111n36, 131n143, 168, 270, 293 Pringle (case-law) 254n79 See also Delegation (eu organ)–financial implementation, external action financing instruments–financial implementation, High Representative–delegation of power, operational expenditure Department, see services of the eu Devco, see European Commission–dg Devco Development cooperation policy Coherence with other policies 9–10, 23, 30–32, 52, 54, 264–270, 306–307 eu instruments, see external action financing instruments See also coherence, European Commission–dg Devco, European Consensus on Development Diplomatic list, see Delegation (eu organ)– diplomatic list Diplomatic mission eu Delegation, see Delegation (eu organ) Missions of international organisations 280–283 State embassy 78–79, 216, 279–280, 285–287, 290–291 See also consular mission, consular protection, diplomatic protection, immunities, right of legation Diplomatic protection Definition 228–229 Odigitria (case-law) 235n161 See also consular protection, Delegation (eu organ)–diplomatic protection, diplomatic mission Disaster management, see civil protection See also Echo (Directorate-General), organisation of the eeas–Crisis Platform, organisation of the eeas–Situation Room Division, see organisation of the eeas Documents, see access to documents Echo (Directorate-General) Cooperation with the eeas 202–203 Emergency Response Coordination Centre 222–224

Index Field offices 297–298 Mandate 258 See also civil protection, European Commission, organisation of the eeas–Crisis Platform, organisation of the eeas–Situation Centre ecj, see Court of Justice Economic sanctions, see restrictive measures Elarg, see European Commission–dg Elarg Embassy, see diplomatic mission See also consular mission, Delegation (eu organ), Head of Delegation, immunities Emergency Response Coordination Centre, see Echo (Directorate-General) Establishment agreements, see Delegation (eu organ) Establishment of the eeas 91–96, 104, 113, 163–164, 178, 185–186, 201, 206, 248, 265–266, 274, 289–291, 296 See also Ashton, European Parliament, Miozzo, organisation of the eeas, Vimont Estonia 9, 37n102, 183n206 eu Global Strategy on Foreign and Security Policy 241–242 See also European Security Strategy eu Institute for Security Studies 83n102 eu Military Staff, see organisation of the eeas European Central Bank 73, 143–144, 151, 152n61 European Commission Autonomy 81–82, 143, 150–151 cfsp 167–169, 210 Control over the eeas 163–169 Delegations (until 2009) 281–282 dg Devco 165, 258, 261, 266–267, 269–270 dg Echo, see Echo (Directorate-General) dg Elarg 92, 261, 264n123 dg Near 258, 261, 266–267 dg Relex 92, 94, 104, 210, 221, 260, 264 Geographical balance 177 Inter-service consultation 165, 210–212 Inter-service groups 209–210 Olaf (European Anti-Fraud Office)   73n65, 103n4, 133n150, 143, 151–152,  201, 203 Powers 81, 263–264, 268–270, 273, 276–277, 289–291, 294–296

347 Secretariat General 161–162, 197n9, 259n98 Service for Foreign Policy Instruments (fpi) 168–169, 266–267, 270 See also Common Foreign and Security Policy, Conferral of powers, control, coordinator–autonomous organ, Delegation (eu organ), external action financing instruments, High Representative, operational expenditure, services of the eu, soft law–communications, Vademecum on Working Relations with the eeas, Working Arrangements between Commission Services and the eeas European Consensus on Development 52 European Council Control over the eeas 173–175 Strategies 53–54, 80, 83, 241–242 See also control, coordinator– collective organ, European Security Strategy, High Representative– appointment, soft law–strategies European Defence Agency 83n102 European Investment Bank 73, 75, 143–144 European Parliament Appointment of Heads of Delegation 187–188 Appointment of High Representative 174–175 cfsp 185, 187 Control over the eeas 167, 185–188, 191 eeas establishment and 93–94, 104–105, 114, 127, 265–266 eeas staff and 178, 184, 187–188 Elections 174–175 Locus standi 19–20 See also control, establishment of the eeas, Head of Delegation European Political Cooperation 24, 36n94, 42, 56, 214, 217, 250 See also Common Foreign and Security Policy European Security Strategy 83, 241, 272 See also eu Global Strategy on Foreign and Security Policy eu Satellite Centre 83n102, 118n72, 221 Executive Secretary-General, see organisation of the eeas See also Le Roy, Vimont

348 External action financing instruments eeas and 165–166, 190, 270 Financial implementation 167–169, 264, 270 Geographical instruments 262–263 Programming 263–270 Relation with cfsp 54–55, 264–265 Thematic instruments 263 See also coherence, development cooperation policy, European Commission–DG Devco, operational expenditure External representation (of the eu) Diplomacy, see Delegation (eu organ) International agreements, see international agreements–negotiation International organisations 68–69, 84, 217, 235, 251n65, 253, 254n78, 254n79, 256, 289 Unilateral statements 217n83, 242–244, 251, 254, 286n213, 297–298 See also coherence–unity in international representation, Delegation (eu organ), European Commission– powers, Head of Delegation– external representation, High Representative–powers Failure to act 132–139, 188–190 See also Court of Justice, locus standi Financial implementation, see operational expenditure Finland 183n206 fpi, see European Commission–Service for Foreign Policy Instruments France 9, 61n7, 79n86, 147n35, 162–163, 175n162, 181, 184, 283n206, 306 Frontex 77, 213 Germany 9, 16n16, 44n123, 60n6, 175n162, 183n206, 212n63 Global Strategy on Foreign and Security Policy, see eu Global Strategy on Foreign and Security Policy Greece 64n27, 126n119 Guidelines, see soft law Head of Delegation Ambassador title 284–285 Appointment 112, 187–188

Index Authority on Delegation staff 291–292, 296 External representation 291 Financial implementation 168, 292–294 Order of precedence 287 Transfer 112, 160 See also Delegation (eu organ), delegation (of power), European Parliament, external representation, operational expenditure High Representative Appointing authority 111–113, 134, 160 Appointment 87 Authorising officer 116–117, 134 cfsp 83–84, 95, 206–209, 212, 242–244, 273–278, 289–290 Control over the eeas 94, 97–98, 148, 159–163, 176, 191, 288–289, 291, 295–296 Cooperation with other organs 198–199 Council and 84, 86, 171–172, 239–244, 247 Crisis response 276–277 Declaration on political accountability 94, 186–188 Delegation of power 85–86, 111n36 Diplomacy 84–85, 284 Dismissal 87–88, 173–175 European Commission member 84, 86, 88–90, 257–259, 266, 268 Functions 2, 25 Powers 83–85, 88–90, 303 Pre-Lisbon organ 82–83 See also Ashton, control, coordinator– autonomous organ, Council, Delegation (eu organ), delegation (of power), European Commission, European Council, European Parliament, Mogherini, Solana Humanitarian aid 25, 34, 55, 62, 89, 92, 203, 246, 258, 271–273, 278, 297 See also civil protection, Common Security and Defence Policy, Echo (DirectorateGeneral), organisation of the eeas– Crisis Platform, organisation of the eeas–Situation Room Hungary 233 Immunities Diplomatic 282, 284, 288 eu Delegations, see Delegation (eu organ)–immunities

Index Foreign minister 61 Missions of international organisations 282 See also diplomatic mission, right of legation Independence, see autonomy Information security 117–122, 133 See also access to documents, data protection Institutional autonomy, see autonomy, institutional balance–conferred powers, operational autonomy Institutional balance Conferred powers and 146–147 eeas and 189–190, 267–270, 307 Locus standi and 19–20, 189–190 See also Conferral of powers, European Commission–powers, High Representative–powers IntCen, see organisation of the eeas Intelligence Support Architecture, see organisation of the eeas Intergovernmental Method 22–25, 28–29, 97, 124n109, 307, 313–314 See also Community Method, Union Method Interinstitutional agreements, see Sincere cooperation International agreements Air Transport Association of America (case-law) 17n20, 17n23 Association agreements 11, 17, 259n96 Cross-Treaty agreements 51n156, 259–260, 309 erta, see Sincere cooperation Establishment agreements, see Delegation (eu organ) Kadi (case-law) 16n16, 18n27, 18n28, 39n110, 57 Mixed agreements 43–44, 64n28, 68–69 Negotiation 16, 36n97, 43–44, 48n144, 65, 212n63, 215, 258–260, 280, 286, 309 Opinion 2/13 (case-law) 15n11, 15n12 Portugal v Council (case-law) 16n18, 17n22 Previous commitments of the Member States, see Sincere cooperation Relation with eu law 16–18, 47–48

349 International Court of Justice 11n8, 60n6, 61, 145n25 International representation, see external representation (of the eu) See also coherence–unity in international representation International responsibility 60n6, 117, 155n81 Iraq 9, 227 Israel 10–11, 23, 216 Italy 9, 18n25, 137n165, 174, 175n162, 183n206, 184, 225n108, 275–278, 287n217, 306 Latvia 37n102, 183n206 Lead State concept 232–234 See also consular protection, Delegation (eu organ)–consular protection Legal basis Centre of gravity 28–29, 32n84 Ecowas, see Common Foreign and Security Policy–Ecowas eeas 111n37, 219n91, 248, 299n259, 313 Multiple 50–51, 259n95 See also Common Foreign and Security Policy–delimitation, Conferral of competences, Conferral of powers Legal personality Definition 123 eeas 126–127 Institutions of the eu 124–126 Public bodies 123–124 Requisite for locus standi 133 Services of the eu, see services of the eu– legal personality See also agencies of the eu, autonomy, locus standi Le Roy, Alain 162, 181 See also organisation of the eeas– executive secretary-general, staff of the eeas–national diplomats, Vimont Libya 9, 37n100, 162, 232–233, 276 Lithuania 9, 183n206 Locus standi Chernobyl (case-law) 19–20, 190 eeas 131–139, 188–190, 310 Les Verts (case-law) 19–20, 136n161 See also European Parliament, legal personality, services of the eu Loyal cooperation, see sincere cooperation Luxembourg 44n123, 64n27, 126n119, 129n132, 183n206, 212n63, 226, 233

350 Mali 276, 306 Malta 226 Managing-director, see organisation of the eeas Miozzo, Agostino 275, 276n175, 278n184 See also organisation of the eeas-Crisis Platform Mixed agreements, see international agreements Mogherini, Federica Activities 89–90, 241 Appointment 173–175 Nominations 161n105, 162–163 Organisation of the eeas 108, 274–275 See also Ashton, High Representative, organisation of the eeas National diplomats, see staff of the eeas Near, see European Commission–dg Near Netherlands 175n162 Nonbinding acts, see soft law See also acts of the eeas–nonbinding acts Nord Stream 65 Olaf, see European Commission–Olaf Operational autonomy Conferral of powers and 145–149 Definition 72, 154–156 eeas 141–192 eu organs 74–76 See also administrative autonomy, autonomy, conferral of powers Operational expenditure Delegations, see Delegation (eu organ)– financial implementation Development cooperation, see external action financing instruments–financial implementation Power to implement 114, 167–169 See also budget, Delegation (eu organ)– financial implementation, European Commission–powers, Head of Delegation–financial implementation Organisation of the eeas Central administration 107 Chief Operating Officer 108, 112, 119n78, 122, 134n153, 259 Corporate Board 108 Crisis Platform 75–76, 78, 300, 309 Delegations, see Delegation (eu organ)

Index Divisions 108, 113, 138, 184, 221, 289 eu Military Staff 219–221 Executive Secretary-General 107–108, 112, 119n78, 121n92, 122, 159, 162–163, 221 IntCen 219–221 Intelligence Support Architecture 218–221 Managing-Director 107, 275 Situation Room 221–224 See also Ashton, Le Roy, Miozzo, Mogherini, Vimont Palestine 10–11, 306 Poland 9, 183n206, 306 Political and Security Committee, see Council Powers of the eeas, see Conferral of powers–eeas See also acts of the eeas Preparatory instruments, see soft law See also acts of the eeas–nonbinding instruments Protocol, see Delegation (eu organ)– diplomatic list, Head of Delegation–order of precedence Quadrilogue, see establishment of the eeas Restrictive measures 11, 34n88, 41–43, 47–48, 56–57, 188n234 Kadi, see international agreements–Kadi (case-law) Parliament v Council (case-law, restrictive measures) 49n145, 50n149,  51n156, 57n178, 272n157 See also coherence–vertical, Common Foreign and Security Policy–delimitation Right of legation 279–285 See also Delegation (eu organ), diplomatic mission, immunities Russia 9, 48n144, 54n162, 65, 216, 226, 306, Service for Foreign Policy Instruments, see European Commission Service-level arrangements, see administrative arrangements Services of the eu Autonomy 103–104, 107, 148 Legal personality 124–125 Locus standi 125 Powers 103, 152–154

351

Index See also acts of the eeas, administrative arrangements, administrative autonomy, autonomy, conferral of powers–eeas, legal personality, locus standi, operational autonomy Sincere cooperation bit (case-law) 47–48 eeas and 128–131, 196–200 erta (case-law) 27–28, 32, 62n14, 135n155 fao (case-law) 68–69, 126n119, 128n130, 130n137, 133n151, 244n28, 267n143 Inland waterways (case-law) 44–45, 129n132, 212 Interinstitutional agreements 128–129, 198–199 pfos (case-law) 44–46, 64, 126n119, 129n132, 212 Previous commitments of the Member States 18, 47–48 Systemic consistency and 27–28 Unity in international representation, see coherence–unity in international representation See also Coherence–cooperation, Conferral of competences, consistency, consular protection, coordination, international agreements SitCen, see organisation of the eeas–IntCen Situation Room, see organisation of the eeas Slovakia 37n102 Soft law Communications 30n74, 39n109, 67n41, 208 Conclusions (Council) 10n4, 24n54, 45, 65n34, 91n125, 150, 241–243 Guidelines (Council) 206n39, 225n109, 231–232, 233n151, 234n154, 241 Preparatory instruments 162, 188–189, 199–120, 207–208, 210, 245–247 Service-level arrangements, see administrative arrangements Staff working documents 35n91, 210, 261n105 Statements 52n157, 217n83, 242–244, 251, 254, 286n213, 297–298 Strategies 23n51, 45–46, 65, 80, 83, 212, 241, 271n155, 272, 311

See also acts of the eeas–nonbinding acts, eu Global Strategy on Foreign and Security Policy, European Consensus on Development, European Council– strategies, European Security Strategy Solana, Javier 82–83, 265 See also Ashton, High Representative Spain 9, 79n86, 79n87, 82, 175n162 Special Representatives, see Common Foreign and Security Policy–Special Representatives Spitzenkandidat, see European Parliament–elections Staff of the eeas Consultative Committee on Appointments 113, 166–167, 171, 187 Discipline 160 Gender balance 180n193 Geographical balance 180–181, 184, 311 National diplomats 92, 94–95, 111–112, 160, 163, 177–184, 256, 293 Seconded national experts 178–183 See also European Parliament–eeas staff, Head of Delegation, High Representative–appointing authority, Le Roy, Miozzo, organisation of the eeas, Vimont Staff working documents, see soft law Standing, see locus standi Statements, see soft law Strategies, see soft law See also eu Global Strategy on Foreign and Security Policy, European Council– strategies, European Security Strategy Sweden 44–47, 48n144, 126n119, 129n132, 183n206, 212n62 Switzerland 283n201 Syria 9, 226n113, 276, 306 Transparency, see access to documents Turkey 36n97, 108, 258 Ukraine 9, 48n144, 54n162, 306 Union Civil Protection Mechanism, see civil protection Union Method 67 United Kingdom 9, 175n162, 235–236, 254n80, 281, 292, 306 United States 9, 10n6, 49, 60, 117n67, 216, 256n83, 283n201, 284n208

352 Vademecum on Working Relations with the eeas 199–200 See also Working Arrangements between Commission Services and the eeas Vienna Convention on Consular Relations 228n120, 228n121, 228n122, 286–288 Vienna Convention on Diplomatic Relations 216n80, 228n121, 279–280, 282–284, 286 See also Delegation (eu organ)– immunities, immunities Vienna Convention on the Law of Treaties 27n61, 61

Index Vimont, Pierre 162, 181, 183n208 See also Le Roy, organisation of the eeas– executive secretary-general, staff of the eeas–national diplomats Working Arrangements between Commission Services and the eeas 199, 266–267,  295n245, 298 See also Vademecum on Working Relations with the eeas Yemen 227, 276