by Marise Cremona and Bruno de Witte (eds). Oxford, UK, and Portland, OR: Hart Publishing, 2008. 328pp. Paperback. $74.00/£35.00. ISBN: 9781841137575.
Reviewed by Angelos M. Syrigos, Department of International and European Studies, Panteion University-Athens, Greece. Email: angelos [at] syrigos.gr.
One of the most intriguing moments during the teaching of the external relations of the EU is when the issue of its legal personality is reached. Students consider that the European Community (EC) is part of history, since they think that, by the time of their birth, it has been replaced by the EU. Suddenly, they learn that only the EC has legal personality and can conclude international agreements. On the other hand the EU is only a political and institutional framework with no legal personality.
This is a mere example of the various difficulties that are inherent in explaining the EU foreign relations law. And these difficulties become more complicated when it comes to speak about the “constitutional fundamentals” of this law. Thus, the task that has been undertaken by Marise Cremona and Bruno de Witte, who edited the volume, was difficult. They could have chosen the easy way to speak about the Treaty of Lisbon and how this Treaty alters the structure the EU’s external role. According to the new structure, the ancient problem of the legal personality of the EC/EU is to be solved. A single legal personality will strengthen the EU’s voice as well as its negotiating powers. Moreover, a new High Representative for the Union in Foreign Affairs and Security Policy and also Vice-President of the Commission is introduced. He is going to be supported by the new European External Action Service. Special decision-making arrangements concerning European Security and Defence Policy have been preserved in order to respect the particular interests of the Member States.
Nevertheless, the two editors decided to follow the rough path to examine and reassess all the main norms and principles of the EU external relations law as they have emerged during the last 50 years. Their task is complicated by the fact that the legal structure of the European Union is based on a detailed primary law of Treaties as it is interpreted by the European Court of Justice, and it lacks clearly marked main norms and principles which, based on the domestic analogy, could be considered as the EU constitution.
The volume is divided into five parts. In the introductory chapter, de Witte presents an overview of the European “constitutional” provisions on foreign relations. He considers that they are so complex that they are a burden rather than a support. Whereas in the beginning the relevant provisions could be characterized as few and laconic, in the 1980s they became more detailed and in the end more complex than many national constitutions. Additionally, since some of the rules were developed entirely through case law rather than [*140] through the text of Treaties, a judge-made complexity was added to the overall picture. Professor de Witte argues that the EU has lost an opportunity to adopt “constitutional” rules which could limit and steer the activity of the institutions instead of obstructing it.
The second chapter is the first of a group of three essays which describe the foreign relations law in a multi-pillar era. This chapter, written by Christoph Herrmann, tries to re-analyze the traditional approach to describe the EU as an ancient Greek temple based on three different pillars versus a single and unitary legal order. The charter is using a number of cases to show a growing trend in the European Court of Justice to disregard the three pillars and follow a “cross-pillarisation” approach of the EC/EU policies. Hermann concludes that, in spite of the intensity of the debate about unity of the EU legal order, in practice this unity makes little sense regarding the separation of the EU law in two Treaties. Beyond legal theory, this question is merely a “façon de parler.”
In the third chapter, Alan Dashwood analyzes the law and practice of the common foreign and security policy (CFSB) joint actions, especially since January 2001, when the European Security and Defence Policy (ESDP) was put in place. The chapter is divided into two parts. In the first part, the criteria that ought to guide the choice of joint actions as the appropriate form of legal instrument for adoption of measures pursuant to the objectives of the CFBC are examined. Although two main categories of joint actions are identified (joint actions that organize ESDP operations, and joint actions that provide financial or other assistance), it is pointed out that article 12 of the EU Treaty does not adequately provide for all of the purposes for which the adoption of binding legal acts is required. The lacuna is partly filled by sui generis decisions into the sphere of the Second Pillar, though of uncertain legality. The second part examines the constraints that article 47 of the EU Treaty (to be replaced by article 40 of the amended treaty, following the entry into force of the Treaty of Lisbon) imposes on the choice for the institutions between CFSP joint action or community measure adopted under the EC Treaty. According to case law, competences under the Third Pillar cannot be used in order to adopt measures identical to those that can be taken by the Community under the EC Treaty. On the contrary, instruments that have been adopted under the CFSP objectives are valid irrespective of the fact that the Community may also have the right to act in pursuance to different objectives of the EC Treaty.
The fourth chapter, by Christophe Hillion and Ramses Wessell, examines a similar issue, that of the restraint of external competences of EU Member States under CFSP. It is true that by the time of the adoption of the CFSP many states considered it as an intergovernmental issue that could not interfere with their freedom to conduct their own foreign policy and conclude international agreements. Nevertheless, in practice the rationale behind the CFSP entails a consultation obligation between the Member States. Moreover, their CFSP loyalty obligation creates certain restraints, especially when the Union has already acted. Hillion and Wessell also [*141] examine parallel competences between the Union and Member States to conclude international agreements with third states and international organizations. Their argument is that it seems too early to rule out exclusivity in the field of CFSP, especially if these agreements depart from established Union Law. Last but not least, they conclude that, in spite of “pillar specific” characteristics, the interplay between the pillars has a spill-over effect, which renders certain notions “principles of Union Law.” Additionally, the CFSP obligations cannot be approached in isolation from the other two pillars. This is further proved by the fact that powers retained by Member States in the field of CFSP cannot be exercised at their own discretion when action is to be taken at EU level, since Members States are not able to choose between a CFSP and an EC legal basis.
The second group which consists of two chapters is entitled, “The EU and its member-states.” It starts with an article by Marise Cremona, one of the editors of the volume. The article discusses the management of shared and overlapping competences between the Community and Member States. Cremona examines the tendency to regard exclusive competence as the best option to defend community interests, whereas shared competences are not necessarily a good solution. She argues that exclusivity is not the only way to defend community interests. More specifically, there are certain constraints imposed by the loyalty principle, as it is embodied in Article 10 of the EC Treaty, upon Member States when they exercise their foreign relations powers. Cremona concludes that Member States should respect the loyalty principle and comply with their community law obligations in repsect of international agreements falling under their competence. Moreover, the unity of the Community legal system and more generally of the Community order has to be preserved with respect to third states. Futhermore, there is a duty of co-operation, not only in the negotiations of mixed agreements, but more generally in the areas that affect the EU external relations sphere. When Member States operate within the scope of “community interest” they have to respect the autonomy of the Community legal order as well as its primacy and to incline towards the completion of its objectives.
The sixth essay, by Panos Koutrakos, focuses on the choice of the appropriate legal basis in the context of the EC external relations and more specifically on the interpretation of Articles 133 and 308 of the EC Treaty. If an agreement concluded by the Community is based on an incorrect legal basis, the agreement would be invalidated inside the EU legal order, whilst it would bind the Community under international law. As it is understandable, the internal constitutional repercussions of the European Union law do not have any significance in the international relations which need clarity and detest uncertainty. On the other hand, the ongoing process of the political formation of the EU renders impossible the quest for complete clarity and predictability. In order to avoid complications concerning agreements incompatible with EC law, which would undermine the interests of the EU in international negotiations, Koutrakos suggests that a mechanism should be established whereby the Court of Justice may offer its Opinion as a matter of [*142] urgency. Furthermore, he remarks that in the multilayered system of the EU external relations, as it is set out by the Treaties, there is no provision for a single legal basis. All legal bases should be taken into serious consideration.
The next group of chapters is about executive accountability. In the seventh chapter, Daniel Thym examines the parliamentary involvement in European international relations. In spite of continuous changes in the EU legal order, parliamentary involvement in international treaty-making at the European level is still limited and cannot be compared with the powers possessed by national parliaments in this field. The powers of the European parliament are limited to parliamentary consultation or consent under Article 300 of the EC Treaty. The Lisbon Treaty does not fundamentally change the picture, although some new rights for the European Parliament are introduced. National parliaments still maintain the decisive role with regard to defence policy and ratification of mixed agreements. Thym concludes that the internal integration progress of the EU does not merely project its domestic competences to the international relations field. Therefore, the role of the Parliament in foreign affairs is a “generic expression of the constitutional fundamentals” of EU’s foreign affairs.
Following the terrorist attacks of the 9/11 in the US and the “war on terror,” increased activity in fields which directly affect individual rights has been witnessed. Eleanor Spaventa discusses how this activity affects the protection of individual rights in the EU, focusing attention on the adoption of “terrorist lists” and more specifically in the inclusion of individuals who lack the necessary legal tools to counter-attack this inclusion. Spaventa concludes that the level of guarantees of individual rights is not as high as it used to be before the “war on terror.” Whilst an appropriate treaty amendment could provide a solution to the problem, in the meantime, Spaventa argues, the Member States should refrain from using EU instruments in matters that affect individual rights.
The last group of chapters concerns human rights and international law in EU foreign relations. In the ninth chapter, Päivi Leino examines whether human rights and “common values” are the guiding principles of the EU foreign relations law. “Common values” are the values referred to in Article 49 of the Lisbon Treaty, which are respected by all Member States and, in theory, guide EU action. Nevertheless, Leino posits that in practice these values, which are described as universal by the EU (in order to avoid charges of neo-colonialism associated with its policies), are offering a vague set of objectives rather than something that can be attained. Leino, clearly inspired by Jürgen Habermas, focuses on the more negative uses of human rights language. He asserts that there are few things that are automatic or generally accepted in the notions of human rights and “common values.” Moreover, these values do not offer neutral and independent standards that can be simply transformed to “legal” criteria. Instead, these values should be regarded as a shared basis for political discussion in order to receive their meaning and to attain priorities. [*143]
In the last chapter of the volume, Christine Kaddous, examines the relationship between international and EU law and tries to determine whether the EU follows a monist or dualist system. For that puprose, Kaddous examines international agreements to which the EC is solely a party, mixed agreements and agreements to which one or more Member States are parties but not the Community. From a series of recent judgments it seems that the Court follows a very open approach concerning direct effect and interpretation since all the agreements entered into by the Community are binding on Community Institutions. Direct effect is accepted as long as the provisions of the agreements are clear, precise and unconditional. Nevertheless, there are two important exceptions with the GATT and WTO case law. On the one hand, the GATT was considered as too flexible to be given direct effect. On the other hand, the WTO agreements involved the principle of reciprocity which had to be taken into consideration. Moreover, the Council and the Commission need room to manoeuvre in their negotiations with the other WTO members. Kaddous concludes that it is difficult to classify the EU system either as a monist or as a dualist system.
The book certainly succeeds in its aim to examine the main norms and principles of the EU external relations law. It provides an indispensable background for any thorough study of an area of EU law that has emerged over 50 years of Treaty-based and judicial development. It exemplifies the cross-pillar legal complexities by providing many concrete examples based on recent case law. It is a book that can be highly recommended to EU law specialists, as well as to lawyers and academics who want to contribute to the ongoing debate about the constitutional issues of EU foreign relations. Nevertheless, a solid legal background is needed for somebody to really enjoy the book.
© Copyright 2009 by the author, Angelos M. Syrigos.