Tuesday, 27 January 2009

EU external action: General provisions

The Treaty of Lisbon brings the current external Community policies together in a more comprehensive manner, although the intergovernmental conference ‘modified’ the whole area for the worse compared with the Constitutional Treaty, by parking the common foreign and security policy and the common security and defence policy in the Treaty on European Union, despite the formal abolishment of the pillar structure.

In practice, Council tutelage of ‘Community pillar’ external action is going to increase through the double-hatted High Representative and the semi-permanent President of the European Council.

***


Current Treaties

In the current Treaty on European Union Title V deals with the common foreign and security policy, whereas the Treaty establishing the European Community has Title IX Common commercial policy, Title XX Development cooperation, Title XXI Economic, financial and technical cooperation with third countries, international agreements, restrictive measures, international relations and instruments among the general and final provisions (Part Six).

***

European Convention

The European Convention did not have temerity enough to abolish the intergovernmental character of the common foreign and security policy (CFSP), including the common security and defence policy (CSDP), but Title Five brought together both intergovernmental (second pillar) and the ‘Community pillar’ external action, in Articles III-193 to III-231 of the Draft Constitution.


***

Constitutional Treaty

The intergovernmental conference (IGC 2004) preserved the structure of the draft Constitution in Title V The Union’s external action, of the Constitutional Treaty, Articles III-292 to III-329.


***

Original Lisbon Treaty (ToL)

The original Treaty of Lisbon sets out the contents of the new Part Five on external action in Article 2, point 154 and point provides for a new Article 188a to do the splits between the treaties (OJEU 17.12.2007 C 306/91):
EXTERNAL ACTION BY THE UNION

154) A new Part Five shall be inserted. Its heading shall be ‘EXTERNAL ACTION BY THE UNION’ and it shall contain the following Titles and Chapters:

Title I: General provisions on the Union's external action

Title II: Common commercial policy

Title III: Cooperation with third countries and humanitarian aid

Chapter 1: Development cooperation

Chapter 2: Economic, financial and technical cooperation with third countries

Chapter 3: Humanitarian aid

Title IV: Restrictive measures

Title V: International agreements

Title VI: The Union's relations with international organisations and third countries and Union delegations

Title VII: Solidarity clause.



GENERAL PROVISIONS

155) The following new Title I and new Article 188 A shall be inserted:

‘TITLE I
GENERAL PROVISONS ON THE UNION'S EXTERNAL ACTION

Article 188 A

The Union's action on the international scene, pursuant to this Part, shall be guided by the principles, pursue the objectives and be conducted in accordance with the general provisions laid down in Chapter 1 of Title V of the Treaty on European Union.’.


***

IGC 2007 Mandate

The mandate for the intergovernmental conference (IGC 2007) stated the general goal of external action coherence, but each IGC working under the constraint of unanimous decision making offers new opportunities to tax the common good.

In comparison with the IGC 2004, i.e. the Constitutional Treaty, the IGC 2007 Mandate contained a number of so called modifications of which point 19(r) was one (page 9):

r) At the beginning of the Part on the Union's external action, an Article will be inserted stating that the Union's action on the international scene will be guided by the principles, will pursue the objectives and will be conducted in accordance with the general provisions on the Union's external action which are laid down in Chapter 1 of Title V of the TEU.



***

Consolidated Lisbon Treaty

When we compare with the current TEC, the commendable reform is that Part Five External action by the Union brings together the European Union’s (Community pillar) international action under one roof for added clarity.
The half-measure reform is exposed by the first provision. The two treaty structure was preserved, although modernised, but the CFSP and the CSDP remained stuck in the TEU.

Article 205 of the consolidated version of the Lisbon Treaty’s Treaty on the Functioning of the European Union (TFEU) refers to the principles, objectives and conduct of the Union’s action on the international scene laid down in the Treaty on European Union (TEU), where the intergovernmental common foreign and security policy (CFSF, including CSDP) still resides despite the formal abolishment of the pillar structure.

Article 205 TFEU is therefore needed as a bridging clause between the TFEU and the TEU, aiming at consistency between the ‘abolished’ pillars (OJEU 9.5.2008 C 115/139):

PART FIVE
EXTERNAL ACTION BY THE UNION

TITLE I
GENERAL PROVISIONS ON THE UNION'S EXTERNAL ACTION

Article 205 TFEU

The Union's action on the international scene, pursuant to this Part, shall be guided by the principles, pursue the objectives and be conducted in accordance with the general provisions laid down in Chapter 1 of Title V of the Treaty on European Union.


***

Principles, objectives and conduct


We have discussed and traced the drafting history of the general provisions of the Treaty on European Union in earlier blog posts, but for ease of reference we offer the text of Chapter 1 of Title V, Articles 21 to 22 TEU, as they are presented in the consolidated version of the Lisbon Treaty (OJEU 9.5.2008 C 115/28–30):



TITLE V
GENERAL PROVISIONS ON THE UNION'S EXTERNAL ACTION AND SPECIFIC
PROVISIONS ON THE COMMON FOREIGN AND SECURITY POLICY

CHAPTER 1
GENERAL PROVISIONS ON THE UNION'S EXTERNAL ACTION


Article 21 TEU

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

The Union shall seek to develop relations and build partnerships with third countries, and international, regional or global organisations which share the principles referred to in the first subparagraph. It shall promote multilateral solutions to common problems, in particular in the framework of the United Nations.

2. The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to:

(a) safeguard its values, fundamental interests, security, independence and integrity;

(b) consolidate and support democracy, the rule of law, human rights and the principles of international law;

(c) preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders;

(d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty;

(e) encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade;

(f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development;

(g) assist populations, countries and regions confronting natural or man-made disasters; and

(h) promote an international system based on stronger multilateral cooperation and good global governance.

3. The Union shall respect the principles and pursue the objectives set out in paragraphs 1 and 2 in the development and implementation of the different areas of the Union's external action covered by this Title and by Part Five of the Treaty on the Functioning of the European Union, and of the external aspects of its other policies.

The Union shall ensure consistency between the different areas of its external action and between these and its other policies. The Council and the Commission, assisted by the High Representative of the Union for Foreign Affairs and Security Policy, shall ensure that consistency and shall cooperate to that effect.


Article 22 TEU

1. On the basis of the principles and objectives set out in Article 21, the European Council shall identify the strategic interests and objectives of the Union.

Decisions of the European Council on the strategic interests and objectives of the Union shall relate to the common foreign and security policy and to other areas of the external action of the Union. Such decisions may concern the relations of the Union with a specific country or region or may be thematic in approach. They shall define their duration, and the means to be made available by the Union and the Member States.

The European Council shall act unanimously on a recommendation from the Council, adopted by the latter under the arrangements laid down for each area. Decisions of the European Council shall be implemented in accordance with the procedures provided for in the Treaties.

2. The High Representative of the Union for Foreign Affairs and Security Policy, for the area of common foreign and security policy, and the Commission, for other areas of external action, may submit joint proposals to the Council.


***

Changing context

The principles are noble, but the circumstances are changing if the Lisbon Treaty enters into force.

We caught a glimpse of the High Representative above. He or she will be appointed by an electorate of 27 and double-hatted to bring consistency to the EU’s external action as a whole. The aim is praiseworthy, but the bidding will increasingly be done by the most influential member states.

The new intergovernmental appointee by 27 electors is the semi-permanent President of the European Council, who will most probably have ambitions of his own and re-interpret the culture of general interest in a sense amenable to the populous member states, if they happen to agree.

The Commission would be more apt to incorporate the guiding principles, but its role will diminish.


Ralf Grahn