Domestic legislation as an embarrassment for the EU (Hungarian media law)

Politically, already serious discussion about the commencement of proceedings is an embarrassment for a wayward government, despite the slender risk of condemnation, I said in my comment regarding the founding values of the European Union in Article 2 TEU and the possible sanctions for serious breaches foreseen in Article 7 TEU: Are EU founding values effective? (Hungarian media law)(11 January 2011).

Governments in the European Union (and beyond) want to be seen as respectable, even when their actions are not. The Hungarian Fidesz government of Viktor Orban moved from angry denial to more conciliatory language in order to defuse the problem, but the embarrassment must be felt by their political friends, such as Wilfried Martens, the president of the European People's Party, who endorsed the Hungarian media law, and EPP group leader Joseph Daul, who belittled and procrastinated instead of taking a principled stand for the rights of EU citizens. .

I have no special desire to see the EPP leadership with egg on its face, but the freedoms and rights of EU citizens are more important to me than misplaced consideration for blatant political misjudgments.

In summary, even when national political leaders think that they can act with impunity domestically, they can cause serious political damage to their country and their ”friends” at the European level.


International repercussions

The potential damage is not limited to intra-European affairs. Internationally the European Union portrays itself as the champion of the universal values of human rights. The foreign, security, defence and trade policy (external action) of the European Union is not based on interests alone, but on acting in accordance with and promoting the founding values of the EU.

This is (or should be) more than wishful thinking, since Title V of the Treaty on European Union (TEU), General provisions on the Union's external action and specific provisions on the foreign and security policy, opens by stating the value based character of all EU action on the world stage, in Article 21(1) TEU:

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.

Evidently, if the European Union, even by individual member states, slips at home, it loses credibility abroad. In other words, a domestic embarrassment becomes a global shame.

Dictators and authoritarian rulers are quick enough to praise their rule(s), if a ”fifth column” inside the EU passes the ammunition.

On the website of the European Council on Foreign Relations (ECFR) and in the Social Europe Journal, Susi Dennison made the point about double standards and welcomed a debate at European level (7 January 2011):

... it has to be a positive development that a political conversation has finally started about these matters at a European level. A Union that has in its founding treaties respect for democracy, rule of law and human rights cannot credibly turn a blind eye to potential breaches of these principles by constituent states.

Member states and Europarties

In the eyes of EU citizens and the wider world, the acts of national governments can seriously undermine the purposes and credibility of the European Union. The member states who ”own” the union and the Europarties who are supposed to contribute to forming European political awareness and to express the will of the citizens of the union have special responsibilities, including robust peer pressure on bad apples.



Ralf Grahn



P.S. Thoughtful analysis, reasoned arguments, European perspectives … already as an undergraduate Conor Slowey aka Eurocentric wrote one of star blogs of the Euroblogosphere, The European Citizen. Now a graduate student in Leiden, he is a generous contributor on Facebook and on Twitter as @EuropeanCitizen. Highly recommended.

European External Action Service (EEAS) - Preparatory work

The European External Action Service (EEAS) will work in cooperation with the diplomatic services of the member states and it will 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.

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Establishment

The EEAS is one of the important Lisby Treaty reforms.

The organisation and functioning of the European External Action Service will be established by a Council decision, on a proposal from the High Representative after consulting the European Parliament and after obtaining the consent of the Commission.

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Preparation

According to Lisbon Treaty Declaration (No 15) on Article 27 of the Treaty on European Union stated that as soon as the Treaty of Lisbon is signed, the Secretary-General of the Council, High Representative for the common foreign and security policy, the Commission and the Member States should begin preparatory work on the European External Action Service.


As usual, the Council has been less than zealous in informing the public on the preparatory work.

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Benelux leak?



The only breach has been the memorandum of the Benelux countries (Belgium, the Netherlands and Luxembourg), which has found its way into the public domain, for instance Jamie Smyth’s blog post “The Benelux strikes back against Blair” (EUobserver, 6 October 2009).



Nicolas Gros-Verheyde presents the Benelux position on the EEAS in “L’avis du Benelux sur le futur service européen d’action extérieure” (Bruxelles2, 8 October 2009), with a link to the whole document and discussion about other aspects of the memo in other blog posts.




Patrice Cardot also presents the memorandum and comments on it in “Mise en oeuvre du traité de Lisbonne : le point de vue du Bénélux” (Regards citoyens, 8 October 2009). There is a link to the document.


I did not find the Benelux position paper on any official web site, so it has probably been leaked. Positive for the free flow of information, but lower marks for openness as a fundamental principle of policy making.


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European Parliament

Grosso modo, the European Parliament is the only EU institution which has prepared its opinions about Lisbon Treaty implementation in public. A number of resolutions were prepared and voted last spring (and presented on this blog).

Yesterday’s Grahnlaw blog post ‘EU “diplomatic service”: All shock and horror?’ mentioned the Draft report on the institutional aspects of setting up the European External Action Service (Committee on Constitutional Affairs AFCO, 23 September 2009, rapporteur: Elmar Brok).



The Committee on Foreign Affairs (AFET) is preparing an opinion for AFCO: Draft opinion on the institutional aspects of setting up the European External Action Service (25 September 2009, rapporteur: Annemie Neyts-Uyttebroeck).



***


The Council and the Commission have done little to inform the public about preparatory work for the implementation of the Lisbon Treaty. When the democratic approval has been attained in 27 EU member states, there are few excuses left for leaving the public in the dark.

Openness is the first test of the Lisbon Treaty.

Where are the documents?

Where are the candidates?



Ralf Grahn

EU Council tasks: External action

The intergovernmental European Council provides or fails to provide the necessary impetus and the political directions for the EU. The national governments are represented in the second most important institution as well, the Council of the European Union.

The Council is a unitary institution, but it meets in different configurations , which cover all the policy areas of the European Union, including those where the Commission and the European Parliament have little or no say.

We look at the legislative, budgetary and executive powers of the Council in more detail. (The executive powers of the Council are tactfully described as policy-making and coordinating functions; Article 16(1) TEU.)

We start with the European Union on the world stage ─ external relations in the wide sense ─ in the light of the Treaty of Lisbon.


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Foreign Affairs Council (FAC)


The new Foreign Affairs Council is one of the two Council configurations mentioned in the Lisbon Treaty together with its tasks (OJEU 9.5.2008 C 115/24):


Article 16(6) TEU, third subparagraph

The Foreign Affairs Council shall elaborate the Union's external action on the basis of strategic guidelines laid down by the European Council and ensure that the Union's action is consistent.


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High Representative

The Empire struck back in the Lisbon Treaty negotiations, depriving the foreign affairs chief of the title Foreign Minister, but extending the Council’s grasp to the external relations managed by the Commission, by the “double-hatted” role of the High Representative acting both directly for the Council and as Vice-President of the Commission.

The High Representative is appointed by the European Council. He chairs the new Foreign Affairs Council (Article 18(3) TEU) and he is the work-horse of the Council in matters pertaining to the common foreign and security policy (CFSP) and the common security and defence policy (CSDP):


Article 18(2) TEU

2. The High Representative shall conduct the Union's common foreign and security policy. He shall contribute by his proposals to the development of that policy, which he shall carry out as mandated by the Council. The same shall apply to the common security and defence policy.


(See also Article 27 TEU.)



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Consistency


In addition to the guiding principles for the external action of the European Union (Article 21 TEU), consistency is emphasised between a) between the different areas of external action, and b) external actions and other policy areas:


Article 21(3) TEU, second subparagraph



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.


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Recommendations: Strategic interests and objectives

External action

The European Council identifies the strategic interests and objectives for the European Union’s external action, with regard to countries, regions or themes, but it acts unanimously on a recommendation by the Council, and the implementation returns to the Council (FAC), the High Representative or the Commission.

The High Representative and the Commission (Vice-President) make proposals to the Council (FAC) (Article 22 TEU).


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We will turn to the Council’s role in the common foreign and security policy (CFSP) in a future post.


Ralf Grahn

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.

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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).

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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.


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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.


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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.’.


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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.



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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.


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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.


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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

EU Treaty of Lisbon: Foreign policy strategies

When the Heads of State or Government convene in the European Council, they have the option to make strategic decisions for the citizens of the European Union, but every one of the leaders bears a lock which can lead to paralysis: veto power.

The Reform Treaty formally makes the European Council an institution of the EU (Article 9 TEU), arguably the most important one, which shall “provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof” in general (Article 9b TEU).

In the fields of foreign and security policy, including all external action, the Lisbon Treaty proposes to further underline the decisive role of the European Council.

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The existing Treaty on European Union (TEU; latest consolidation OJ 29.12.2006, C 321 E) Article 13 TEU says:

“1. The European Council shall define the principles of and general guidelines for the common foreign and security policy, including for matters with defence implications.

2. The European Council shall decide on common strategies to be implemented by the Union in areas where the Member States have important interests in common.

Common strategies shall set out their objectives, duration and the means to be made available by the Union and the Member States.

3. The Council shall take the decisions necessary for defining and implementing the common foreign and security policy on the basis of the general guidelines defined by the European Council.

The Council shall recommend common strategies to the European Council and shall implement them, in particular by adopting joint actions and common positions.

The Council shall ensure the unity, consistency and effectiveness of action of the Union.”

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The Convention proposed an Article III-194 underlining the strategic importance of the European Council. This was taken over as Article III-293 in the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310).

The Lisbon Treaty takes over the substance of this provision. The differences are caused by the terminology of the Reform Treaty: “Article III-292” has become “Article 10 A”, “European decisions” have become “Decisions” and the “Union Minister for Foreign Affairs” has become the “High Representative of the Union for Foreign Affairs and Security Policy”.

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A few remarks by your glossator:

Potentially, 490 million inhabitants, who form the world’s largest trading block and greatest giver of development aid, and with the guiding principles mentioned in the new Article 10a TEU, could have a decisive impact on the world stage. The EU could enhance the security and prosperity of EU citizens as well as contribute to a better world.

Although the EU Member States themselves are democratic, they have not been able to agree to base their common external relations on democratic governance at the Union level. On the contrary, in the field of foreign and security policy (CFSP) they have chosen to strengthen the intergovernmental character of policy making, and to take over the external relations of the Commission (‘Community’).

They have felt the need for more effective decision making and implementation, but have been unwilling to cross the threshold. Even if the individual Member States are increasingly unable to deal with global challenges on their own, they continue to cherish their formal sovereignty.

The Lisbon Treaty is a result of these conflicting pressures. The European Council becomes the supreme foreign policy ‘government’ of the European Union, but it can act effectively only if every one of its members joins in a unanimous decision. Conversely, every Member State government can decide to let its perceived national interest override the common good. Even if compromises are patched together, suboptimal decisions are likely to result.

Dealing with the world’s unitary powers, the EU is at a disadvantage. More or less lacking “hard power” and with “soft power” often just a fig leaf for lack of consistent policy, the EU continues to be a yacht for fair weather sailing. ‘Liberum veto’ is an invitation to ‘divide et impera’ by other great powers.

The leaders of the Member States have designated their own institution, the European Council, as the prime mover, especially in all the fields of foreign policy. Consequently, the responsibility is theirs. When Europe fails, the failure is theirs.

According to the Treaty of Lisbon, it is up to the European Council to identify the strategic interests and objectives of the Union and to reach unanimous decisions based on the principles in Article 10a. The need for independent foreign policy analysis is going to be great.

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The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 10b TEU.

Article 10b

1. On the basis of the principles and objectives set out in Article 10 A, 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.

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Next, we are going to look at the specific provisions on the common foreign and security policy.


Ralf Grahn

EU Treaty of Lisbon: External action

The external action of the European Union and the European Community aims to strengthen the security and to enhance the prosperity of the citizens of the EU. The Reform Treaty merges the European Union into the European Union, abolishing the pillar structure but not the intergovernmental decision making procedures specific to the common foreign and security policy or the common security and defence policy.

In addition to the common foreign and security policy (CFSP) and the common security and defence policy (CSDP), the external action of the European Union encompasses the now EC areas of competence: the common commercial policy and development cooperation as well as economic, financial and technical cooperation with third countries. The external aspects of the area of freedom, security and justice (e.g. external border control, migration, terrorism, transborder crime) are becoming increasingly important.

The scale of the challenges is growing, but the ability of individual European countries to deal effectively with the threats and opportunities of globalisation is decreasing. This includes the former European great powers. The United Nations and its agencies are important global forums, but too weak to deal decisively with global issues.

Ideally, the European Union could strengthen peace, stability and progress in the Union and the world.

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The existing Article 3(2) TEU states (latest consolidated version OJ 29.12.2006 C 321 E): The Union shall in particular ensure the consistency of its external activities as a whole in the context of its external relations, security, economic and development policies. The Council and the Commission shall be responsible for ensuring such consistency and shall cooperate to this end. They shall ensure the implementation of these policies, each in accordance with its respective powers.

The present Article 11 TEU says:

“1. The Union shall define and implement a common foreign and security policy covering all areas of foreign and security policy, the objectives of which shall be:
- to safeguard the common values, fundamental interests, independence and integrity of the Union in conformity with the principles of the United Nations Charter,
- to strengthen the security of the Union in all ways,
- to preserve peace and strengthen international security, in accordance with the principles of the United Nations Charter, as well as the principles of the Helsinki Final Act and the objectives of the Paris Charter, including those on external borders,
- to promote international cooperation,
- to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms.
2. The Member States shall support the Union’s external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity.
The Member States shall work together to enhance and develop their mutual political solidarity. They shall 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.
The Council shall ensure that these principles are complied with.”

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The Convention proposed some steps towards a more coherent foreign policy for the EU, starting with the general principles named in Article III-193. The contents were taken over, first in Article III-292 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) and then in the Treaty of Lisbon, as Article 10a TEU. (Only the “Union Minister for Foreign Affairs” became the “High Representative of the Union for Foreign Affairs and Security Policy” in Article 10a(3) second subparagraph.)

This was in accordance with the IGC 2007 Mandate (Council document 11218/07, point 15), which gives an overview of what was to become the Reform Treaty:

“15. In Title V of the existing TEU, a first new Chapter on the general provisions on the Union’s external action will be inserted containing two Articles, as agreed in the 2004 IGC, on the principles and objectives of the Union’s external action and on the role of the European Council in setting the strategic interests and objectives of this action. The second Chapter contains the provisions of Title V (6) of the existing TEU, as amended in the 2004 IGC (including the European External Action Service and the permanent structured cooperation in the field of defence). In this Chapter, a new first 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. It will be clearly specified in this Chapter that the CFSP is subject to specific procedures and rules. There will also be a specific legal base on personal data protection in the CFSP area (7).

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(6) The IGC will agree on the following Declaration: The Conference underlines that the provisions in the Treaty on European Union covering the Common Foreign and Security Policy, including the creation of the office of the High Representative of the Union for Foreign Affairs and Security Policy and the establishment of an External Action Service, do not affect the responsibilities of the Member States, as they currently exist, for the formulation and conduct of their foreign policy nor of their national representation in third countries and international organisations.
The Conference also recalls that the provisions governing the Common Security and Defence Policy do not prejudice the specific character of the security and defence policy of the Member States.
It stresses that the EU and its Member States will remain bound by the provisions of the Charter of the United Nations and in particular, by the primary responsibility of the Security Council and of its Members for the maintenance of international peace and security.

(7) With regard to the processing of such data by the Member States when carrying out activities which fall within the CFSP and ESDP and the movement of such data.”

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Your glossator’s remarks:

The principles to guide the external action of the European Union seem to be balanced and uncontested. The problems start with the means to reach the desired aims, as shown by later Treaty provisions and Declarations annexed to the Reform Treaty.

Opposing views have been presented on if the Lisbon Treaty is going to create a European Union which is a “superstate” or “superpower”. On the whole, my answer would be that better internal coordination of preparation and implementation of foreign policy does contribute to more consistent policy actions in the future, but fundamentally the EU remains at the mercy of the individual Member States and their ‘liberum veto’.

The EU will continue to punch below its weight, but perhaps a little bit less so than presently. With the common foreign and security policy of the EU continuing within the sphere of intergovernmental cooperation, democratic scrutiny and accountability of the external action are going to be weak.


***

In the Treaty of Lisbon (OJ 17.12.2007, C 306), TEU Title V is called General provisions on the Union’s external action and specific provisions on the common foreign and security policy. A Chapter 1 General provisions on the Union’s external action is inserted, starting with an Article 10a.

Article 10a

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.

***

Next time we turn to the strategic role of the European Council.


Ralf Grahn

EU Treaty of Lisbon: High Representative

Is the European Union entering the Facebook era? Perhaps not, but the Lisbon Treaty would go some way towards giving the EU recognisable leading personalities. The new President of the European Council is the clearest example, since this is a new post. If the candidate of the largest political party emerging from the European Parliament elections becomes Commission President, he or she will at the outset be much more of a European figure than the Presidents who until now have been sifted out by the European leaders behind closed doors. The High Representative already exists (presently Javier Solana), but the new High Representative of the Union for Foreign Affairs and Security Policy is going to take over the external action of the European Commission, as Vice-President, and lead the External action service of the EU.

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Presently the Treaty on European Union (TEU; latest consolidated version OJ 29.12.2006, C 321 E) sets out the tasks of the High Representative in the following way in Article 26 TEU:

“The Secretary General of the Council, High Representative for the common foreign and security policy, shall assist the Council in matters coming within the scope of the common foreign and security policy, in particular through contributing to the formulation, preparation, and implementation of policy decisions, and, when appropriate and acting on behalf of the Council at the request of the Presidency, through conducting political dialogue with third parties.”

The Convention proposed a Minister for Foreign Affairs, in Article I-27, one of its most important institutional innovations. The new Foreign Minister would unite the beginnings of a common foreign, security and defence policy of the Council with the external action, including the resources, of the Commission under a “double hat”, as High Representative and Vice-President.

In the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) all the Member States signed up to the Treaty, including Article I-28 The Union Minister for Foreign Affairs. Article I-28(3) added the following provision: The Union Minister for Foreign Affairs shall preside over the Foreign Affairs Council.

The mandate for the intergovernmental conference (IGC 2007; Council document 11218/07) gives a picture of the differences and likenesses between the constitutional setting and the amending Reform Treaty, including the fate of the Minister for Foreign Affairs:

“3. The TEU and the Treaty on the Functioning of the Union will not have a constitutional character. The terminology used throughout the Treaties will reflect this change: the term “Constitution” will not be used, the “Union Minister for Foreign Affairs” will be called High Representative of the Union for Foreign Affairs and Security Policy and the denominations “law” and “framework law” will be abandoned, the existing denominations “regulations”, “directives” and “decisions” being retained. Likewise, there will be no article in the amended Treaties mentioning the symbols of the EU such as the flag, the anthem or the motto. Concerning the primacy of EU law, the IGC will adopt a Declaration recalling the existing case law of the EU Court of Justice.”

Reneging on its signature, the United Kingdom had thus created, among other things, the word monster High Representative of the Union for Foreign Affairs and Security Policy and Vice-President of the Commission.

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A few comments from your glossator:

The Lisbon Treaty devalues the rotating six month Presidency of the Council by creating a semi-permanent President for the European Council, who chairs the summits and represents the Union “at his level and in that capacity”, and by the High Representative/Vice-President, who chairs the Foreign Affairs Council and represents the EU externally.

With about 14 years between the Presidencies, it would be difficult for a Member State to keep up the proficiency to handle these questions. Within the very real constraints of decision making by consensus or unanimity, which mean that the European Union is bound to remain much less than a great power in foreign, security and defence policy, the new posts will give more coherence to Union policies if such have been defined.

Internally, the High Representative/Vice-President should be able, eventually, to coordinate the external action of the European Union better. At the same time, the Lisbon Treaty can be seen more as a takeover by the Member States of the ‘Community’ (Commission) external action and its resources than the other way around. Thus, the common foreign, security and defence policies are further entrenched as intergovernmental playing fields, outside the scope of effective democratic scrutiny by the European Parliament.

The High Representative is relieved of his functions as Secretary General of the Council, opening up a coveted position for a “grey eminence”. In the near future the governments of the Member States are going to be intensely occupied with the filling of these offices (President of the European Council, High Representative/Vice-President, Commission President, Secretary General). These processes tend to be less than transparent.

The citizens of the Union can do very little to influence the choices; voting for a political party in the June 2009 elections to the European Parliament may influence the political alignment and person of the next President of the European Commission.

Alongside the nominations, the drafting of a new European Security Strategy has commenced, to replace the ESS of December 2003. Developed guidelines to handle the various security threats of our era would be welcome, as well as clear advances towards common defence commitments.

Interestingly, the EU Treaties are denounced, from different quarters, as being emanations of “socialist plots” and “ultra-liberalistic projects” set in stone. Snappier basic documents in a democratic setting would leave the economic policy orientations to fought out at elections, but objectively the security interests are common to all citizens (despite substantial variations in perceptions and rhetoric).

Long term, the security interests of EU citizens call for effective decision making and democratic scrutiny. The need for institutional reforms is far from over.

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The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 9e.

Article 9e

1. The European Council, acting by a qualified majority, with the agreement of the President of the Commission, shall appoint the High Representative of the Union for Foreign Affairs and Security Policy. The European Council may end his term of office by the same procedure.

2. The High Representative shall conduct the Union's common foreign and security policy. He shall contribute by his proposals to the development of that policy, which he shall carry out as mandated by the Council. The same shall apply to the common security and defence policy.

3. The High Representative shall preside over the Foreign Affairs Council.

4. The High Representative shall be one of the Vice-Presidents of the Commission. He shall ensure the consistency of the Union's external action. He shall be responsible within the Commission for responsibilities incumbent on it in external relations and for coordinating other aspects of the Union's external action. In exercising these responsibilities within the Commission, and only for these responsibilities, the High Representative shall be bound by Commission procedures to the extent that this is consistent with paragraphs 2 and 3.

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The renamed Court of Justice of the European Union is going to be next.


Ralf Grahn