Monday, 9 February 2009

EU Law: International relations ─ Implementation debate needed

The EU Treaty of Lisbon modernises the existing provisions on the European Community’s relations with international organisations and third countries.

When the European Community is merged into the European Union, the High Representative becomes the main responsible for the day to day running of the EU’s international relations and the official in charge of the European Union’s delegations in third countries and at international organisations.

Because of the remaining split between CFSP (and CSDP) issues and other external relations, the related provision on the European External Action Service is still to be found in the Treaty on European Union.

If the Treaty of Lisbon enters into force on 1 January 2010 ─ as the governments of the EU member states seem to wish ─ it is high time for the Council to open up the public discussion on all issues of implementation.



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Current treaty

Articles 302, 303 and 304 of the Treaty establishing the European Community (TEC) contain basic provisions on the international relations of the EC.

Article 302 TEC relates to the United Nations (UN) and its agencies, but it also contains a general reference to all international organisations, of which some may be global in scope.

Cooperation with the pan-European Council of Europe is mentioned in Article 303 TEC.

The Organisation for Economic Cooperation and Development (OECD) is mentioned separately in Article 304 TEC.

The text of Articles 302 to 304 TEC as published in the latest consolidated version of the treaties (OJEU 29.12.2006 C 321 E/177─178):


Article 302 TEC

It shall be for the Commission to ensure the maintenance of all appropriate relations with the organs of the United Nations and of its specialised agencies.

The Commission shall also maintain such relations as are appropriate with all international organisations.

Article 303 TEC

The Community shall establish all appropriate forms of cooperation with the Council of Europe.


Article 304 TEC

The Community shall establish close cooperation with the Organisation for Economic Cooperation and Development, the details of which shall be determined by common accord.


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Original Lisbon Treaty

Article 2, point 175 of the original Treaty of Lisbon (ToL) introduces a new Title and inserts an Article 188p to replace Articles 302 to 304 TEC. The new Article 188q transforms the existing Commission representations in third countries and at international organisations into EU delegations (OJEU 17.12.2007 C 306/99─100):



THE UNION'S RELATIONS WITH INTERNATIONAL ORGANISATIONS AND THIRD COUNTRIES AND UNION DELEGATIONS

175) The following Title VI and Articles 188 P and 188 Q shall be inserted, with Article 188 P replacing Articles 302 to 304:

‘TITLE VI
THE UNION'S RELATIONS WITH INTERNATIONAL ORGANISATIONS AND THIRD COUNTRIES AND UNION DELEGATIONS

Article 188 P

1. The Union shall establish all appropriate forms of cooperation with the organs of the United Nations and its specialised agencies, the Council of Europe, the Organisation for Security and Cooperation in Europe and the Organisation for Economic Cooperation and Development.

The Union shall also maintain such relations as are appropriate with other international organisations.

2. The High Representative of the Union for Foreign Affairs and Security Policy and the Commission shall be instructed to implement this Article.


Article 188 Q

1. Union delegations in third countries and at international organisations shall represent the Union.

2. Union delegations shall be placed under the authority of the High Representative of the Union for Foreign Affairs and Security Policy. They shall act in close cooperation with Member States' diplomatic and consular missions.’.


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Consolidated Lisbon Treaty

The new Title VI appears in the consolidated version of the Treaty of Lisbon together with the renumbered Articles 220 and 221 of the Treaty on the Functioning of the European Union (TFEU), published OJEU 9.5.2008 C 115/147:

TITLE VI
THE UNION'S RELATIONS WITH INTERNATIONAL ORGANISATIONS AND THIRD
COUNTRIES AND UNION DELEGATIONS

Article 220 TFEU
(ex Articles 302 to 304 TEC)

1. The Union shall establish all appropriate forms of cooperation with the organs of the United Nations and its specialised agencies, the Council of Europe, the Organisation for Security and Cooperation in Europe and the Organisation for Economic Cooperation and Development.

The Union shall also maintain such relations as are appropriate with other international organisations.

2. The High Representative of the Union for Foreign Affairs and Security Policy and the Commission shall be instructed to implement this Article.



Article 221 TFEU

1. Union delegations in third countries and at international organisations shall represent the Union.

2. Union delegations shall be placed under the authority of the High Representative of the Union for Foreign Affairs and Security Policy. They shall act in close cooperation with Member States' diplomatic and consular missions.


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Comments

External action (Part Five of the Treaty on the Functioning of the European Union) manages to bring most of the international provisions under one roof, with the notable failure of the Lisbon Treaty to dislodge the common foreign and security policy (CFSP), including the common security and defence policy (CSDP) from the amended Treaty on European Union (TEU).

Articles 220 and 221 TFEU correspond with Articles III-327 and III-328 of the Constitutional Treaty.

The new TFEU Title VI The Union’s relations with international organisations and third countries and Union delegations simplifies reading by the new heading and by collecting the most important international organisations from three different provisions into one. The Organisation for Security and Cooperation in Europe (OSCE) is added to the organisations specially mentioned in Article 220 TFEU.

The merger of the European Community into the European Union, which is endowed with explicit legal personality (Article 47 TEU), is highlighted by the role of the High Representative, called on to implement these international relations and to wield authority over the EU delegations in third countries and at international organisations. Cf. Article 220(2) and Article 221(2) TFEU.

The existing European Community representations become European Union delegations (Article 221 TFEU).

These TFEU provisions reflect the development into a European External Action Service, which assists the High Representative. The EEAS is to be established by a Council decision (Article 27 TEU).

Thus, the European External Action Service is one of the questions requiring preparatory work in order to implement the Treaty of Lisbon, should it enter into force. The Council needs to report on the state of play and alternative solutions concerning this and other implementing issues to facilitate a constructive debate with the European Parliament, national parliaments, think-tanks, researchers and the public.

Perhaps the European Parliament and the Commission, even if on their last legs, could prod the Council into action?


Ralf Grahn